STATE OF NEW JERSEY VS. TODD STATHUM (14-07-1235, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2049-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TODD STATHUM, a/k/a
TODD PAESON,

Defendant-Appellant.
________________________

Argued December 4, 2018 – Decided February 4, 2019

Before Judges Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-07-
1235.

Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Cody T. Mason, of counsel
and on the brief).

Lisa Sarnoff Gochman, Legal Assistant, argued the
cause for respondent (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Lisa Sarnoff
Gochman, of counsel and on the brief).
 Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Todd Stathum was indicted for four crimes related to the

robberies of two convenience stores. A jury convicted defendant of first-degree

armed robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e), in connection with the

robbery of one of the stores. The jury deadlocked on those same charges in

connection with the robbery of the other store. Thereafter, however, defendant

pled guilty to the charges related to the other store, with an agreement from the

State that it would recommend concurrent sentences.

Defendant was then sentenced to an extended term of twenty years in

prison for the jury conviction of the first-degree armed robbery. He was also

sentenced to a concurrent term of ten years in prison for the conviction of first -

degree armed robbery based on his plea of guilty. Both of those sentences were

subject to mandatory periods of parole ineligibility and parole supervision as

prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the

convictions for possession of an imitation gun for an unlawful purpose,

defendant was sentenced to concurrent terms of eighteen months in prison.

Finally, defendant was ordered to pay $1330 in fines and penalties.

A-2049-16T3
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 Defendant appeals his convictions and sentences, and argues (1) the

counts concerning the two robberies should have been severed and tried

separately; (2) it was improper to admit certain bad-act evidence against him

without a proper limiting instruction; (3) he was entitled to a mistrial because,

during trial, the State turned over a recording between a detective and a witness

that defendant contends was exculpatory; (4) there were cumulative errors

warranting a new trial; and (5) his sentences for the weapons offenses should

have merged with the robbery convictions and the matter needs to b e remanded

for resentencing. We reject the first four arguments and affirm his convictions.

We remand for resentencing so that the weapons offenses can be merged with

the robbery convictions. We also remand for an ability-to-pay hearing on the

discretionary fines and penalties.

I.

The charges against defendant involve two robberies that occurred on

March 22, 2014, and April 1, 2014, in Long Branch. The first robbery occurred

at the Monmouth Gas convenience store (the Monmouth Gas robbery) and the

second robbery was at the LaCita convenience store (the LaCita robbery). We

take the facts as developed in the record, including the evidence presented at

trial.

A-2049-16T3
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 Just after noon on March 22, 2014, a man wearing a black hooded

sweatshirt and ski mask entered the Monmouth Gas store. He approached the

cashier, T.W.,1 showed him a silver gun, and demanded money. T.W. complied

and gave the man approximately $400 in cash, which was placed in a bag the

man had brought with him.

The robber then fled. As he was running from the Monmouth Gas store,

a local mail carrier saw him and noted the car he entered. At trial, the mail

carrier was able to identify the car from surveillance videos that the police had

obtained from a business near the Monmouth Gas store.

After the man left the store, T.W. called the store owner, who called the

police. At trial, T.W. explained that he did not call the police because he did

not want to be a "snitch." T.W. also later explained that he recognized defendant

during the robbery, but did not immediately tell the police that he recognized

defendant. In that regard, T.W. testified that he grew up with defendant and that

he only told the police he recognized him when he heard that defendant was

telling people he had set up the robbery.

Concerned that he might be arrested, T.W. called the police anonymously

to identify defendant as the robber. A police detective recognized T.W.'s voice

1
We use initials for witnesses to protect their privacy.
A-2049-16T3
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as the anonymous caller, and then contacted T.W. to ask for a formal statement.

T.W. complied and, on April 3, 2014, he gave a formal statement implicating

defendant in the robbery. T.W. was also shown a photo array and identified

defendant as the person who had robbed the Monmouth Gas store. At trial, T.W.

again identified defendant as the robber.

As part of the investigation, the police also obtained video from a security

camera in the Monmouth Gas store. That video showed the suspect as a man

dressed in black with a ski mask, pointing a silver and black handgun towards

T.W. and demanding money. Earlier footage from the security camera also

showed that before the robbery, defendant and his brother purchased coffee at

the Monmouth Gas store and that when they left the store, they entered a vehicle

that matched the description given by the mail carrier. Other surveillance video

showed the suspect fleeing after the robbery and entering a vehicle that matched

the vehicle defendant and his brother were seen in earlier in the day.

As already noted, the LaCita robbery occurred on April 1, 2014. Shortly

before 10 p.m., the robber entered the store wearing camouflage pants, a gray

hooded sweatshirt, and a green bandana over his face. The robber then picked

up a bag of popcorn, and approached the counter where a cashier was working.

As the cashier was ringing up the charge for the popcorn, the robber pulled out

A-2049-16T3
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a gun and ordered the cashier to put all the money from the register into a plastic

bag that the robber had brought.

When the robber left, the cashier called the police. Officers were able to

secure video footage from inside the LaCita store and the video showed the

suspect wearing clothes that matched the description given by the cashier. The

video footage from the LaCita store also showed the suspect using a weapon that

appeared to be the same weapon that had been used in the Monmouth Gas

robbery. Further, other surveillance video showed a vehicle near LaCita at the

time of the robbery that appeared to be the same vehicle used in the getaway

from the Monmouth Gas robbery.

Defendant was arrested. After waiving his Miranda2 rights, defendant

admitted that he had committed both the Monmouth Gas and the LaCita

robberies. He also confirmed what he wore during the LaCita robbery and told

the police that the gun was an imitation gun and it could be located at his home.

Thereafter, defendant signed a consent-to-search form and the police searched

his home. They seized a number of items, including a silver and black imitation

handgun, a dark gray hooded sweatshirt, camouflage pants, a green bandana,

2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2049-16T3
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and an empty bag of popcorn that matched the type of popcorn the robber had

taken from the LaCita store.

During his statement, the police also questioned defendant concerning a

robbery that occurred in Shrewsbury on March 22, 2014. Defendant repeatedly

denied any involvement in the Shrewsbury robbery.

In July 2014, defendant was charged with two counts of first-degree armed

robbery and two counts of fourth-degree possession of an imitation weapon for

an unlawful purpose. Before trial, defendant filed a number of motions. He

moved to suppress the evidence seized from his home, the statement he had

given to the detectives, and T.W.'s out-of-court identification of him. Following

an evidentiary hearing, the trial court denied those motions.

Defendant also filed a motion to sever the counts concerning the

Monmouth Gas robbery from the counts concerning the LaCita robbery. After

hearing oral argument, the trial court denied that motion. Citing Rule 3:15-1(a)

and applying the four-prong test adopted by our Supreme Court in State v.

Cofield, 127 N.J. 328, 338 (1992), the court found that severance was not

warranted because evidence of the two robberies related to one another. In that

regard, the court found that the robberies were part of a common scheme or plan

because the suspect wore a hooded sweatshirt, appeared to use the same gun,

A-2049-16T3
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fled in the same vehicle, and the robberies occurred within a short distance of

each other. The court also reasoned that the two robberies occurred within ten

days of each other, which was reasonably close in time. The court then found

that there was clear and convincing evidence for each of the robberies given

defendant's confession, the witness statements, the video evidence, and the

physical evidence recovered from defendant's home. Finally, the court found

that the probative value of the other-crime evidence was not outweighed by any

prejudice to defendant.

The State also filed a pretrial motion seeking permission to submit

evidence concerning the Shrewsbury robbery. The State argued the evidence

was necessary to give context to defendant's confessions and to rebut defendant's

claim that those confessions were coerced and untrustworthy. In response to

that motion, defense counsel submitted a letter stating that defendant would

consent to the admission of sanitized evidence concerning the Shrewsbury

robbery after receiving the related discovery.

The court asked for a consent order, but the order that was ultimately

submitted did not contain the signatures of defendant or defense counsel.

Nevertheless, the trial court entered that order and defense counsel did not object

at the time that the order was entered. At trial, however, defense counsel

A-2049-16T3
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objected when the State sought to admit sanitized evidence concerning the

Shrewsbury robbery. The court overruled that objection.

Thereafter, an eight-day trial was conducted in July 2016. The State

called a number of witnesses, including T.W. and the cashier from the LaCita

store. The State also called several members of the Long Branch Police

Department. Defendant elected not to testify and only called one witness at trial,

the owner of the Monmouth Gas store.

Before trial, the defense had made several discovery requests for all

recorded conversations between detectives and T.W. The State had produced

one recorded "anonymous" call, which detectives believed came from T.W.

During trial, however, it became evident that the State failed to produce a

separate recorded conversation between a police detective and T.W. That

conversation took place prior to T.W.'s formal recorded statement to the police.

Defendant moved for a mistrial. The court conducted a Rule 104 hearing

outside the presence of the jury and the detective involved in the conversation

testified. See N.J.R.E. 104. The court also ordered the State to locate and turn

over the recording, and all parties had an opportunity to review it and it was

played at the Rule 104 hearing.

A-2049-16T3
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 Defendant argued that the recording contained statements that were

inconsistent with testimony by T.W. and the detective, and the late disclosure

deprived him of a fair trial. The trial court rejected those arguments, finding the

recording was not exculpatory and that the statements made by T.W. were

consistent with his identification of defendant as the robber. The court went on

to find that the recorded conversation did not present the type of exculpatory

information that was likely to result in a manifest injustice. The court also found

that the earlier disclosure of that recording would not have changed the defense

strategy. Accordingly, the court denied defendant's motion for a mistrial, but

held that the State was barred from using the recording in its case-in-chief,

unless defense counsel chose to cross-examine the detective about the call.

After hearing all of the evidence, and after being given instructions, the

jury deliberated for three days. On the second day of its deliberations, the jury

reported that it was "hung." The court instructed the jury to continue

deliberations using the model jury charge for jury deliberations. The following

day, the jury returned guilty verdicts on the robbery and weapons charge related

to the LaCita robbery, but reported that it was unable to reach verdicts on the

charges related to the Monmouth Gas robbery.

A-2049-16T3
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 Approximately three weeks after the jury verdict, defendant entered a

conditional guilty plea to first-degree robbery and fourth-degree possession of

an imitation weapon for an unlawful purpose in connection with the Monmouth

Gas robbery. In exchange for that plea, the State recommended ten years in

prison, subject to NERA, to run concurrent to the sentence imposed by the court

on the convictions from the jury trial. Defendant reserved the right to withdraw

his guilty plea in the event that his convictions by the jury were overturned on

appeal.

In December 2016, defendant was sentenced. In aggregate, defendant was

sentenced to twenty years in prison subject to NERA. Consistent with his plea

agreement, the sentence included a concurrent ten-year sentence on the

conviction for first-degree armed robbery to which defendant pled guilty.

Defendant was also sentenced to concurrent terms of eighteen months in prison

for both weapons offenses. Finally, as already noted, the court imposed $1330

in fines and penalties. Defendant now appeals from his convictions and

sentences.

II.

On appeal, defendant makes five arguments, which he articulates as

follows:

A-2049-16T3
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POINT I – STATHUM'S CONVICTIONS SHOULD
BE REVERSED BECAUSE THE TRIAL COURT
ABUSED ITS DISCRETION WHEN IT REFUSED TO
SEVER THE MONMOUTH GAS OFFENSES FROM
THE SEPARATE LACITA OFFENSES.

POINT II – THE TRIAL COURT COMMITTED
REVERSIBLE ERROR WHEN IT ADMITTED
EVIDENCE THAT STATHUM WAS SUSPECTED IN
ANOTHER ARMED ROBBERY, USED HEROIN,
OWED COURT FEES, AND WAS SUBJECT TO
ARREST BASED ON THOSE FEES, AND DID SO
WITHOUT ADEQUATE LIMITING
INSTRUCTIONS.

A. The Information About the
Shrewsbury Robbery Was Irrelevant and
Highly Prejudicial, Such That Its
Admission Requires Reversal.

B. Reversal Is Required Because the
Evidence of Stathum's Drug Use and Court
Fees Was Irrelevant and Highly
Prejudicial, Particularly Given the Lack of
Limiting Instructions.

POINT III – THE TRIAL COURT SHOULD HAVE
GRANTED STATHUM'S REQUEST FOR A
MISTRIAL BECAUSE THE STATE DID NOT
DISCLOSE A RECORDING THAT
CONTRADICTED KEY TESTIMONY AND RAISED
QUESTIONS ABOUT [T.W.'S] IDENTIFICATION
UNTIL MID-TRIAL.

POINT IV – THE CUMULATIVE EFFECT OF THE
TRIAL ERRORS DEPRIVED STATHUM OF DUE
PROCESS AND A FAIR TRIAL AND WARRANTS
REVERSAL OF HIS CONVICTIONS.

A-2049-16T3
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 POINT V – A REMAND IS REQUIRED BECAUSE
THE COURT ERRONEOUSLY DID NOT MERGE
THE UNLAWFUL-PURPOSE FIREARM AND
ROBBERY OFFENSES, AND DID NOT MAKE
REQUIRED FINDINGS IN IMPOSING $700 IN
FINES.

A. A Remand Is Required Because the
Court Erred in Not Merging the Unlawful-
Purpose Firearm Convictions With the
Armed Robbery Convictions.

B. A Remand Is Required Because the
Court Did Not Make Any Findings
Regarding Stathum's Ability to Pay $700 in
Discretionary Fines.

Defendant also submitted a pro se letter brief in which he supplements his

argument concerning the late disclosure of the recording and he contends:

THE DEFENDANT'S CONVICTION WAS
OBTAINED [IN] VIOLATION OF DEFENDANT'S
FOURTEENTH AMENDMENT DUE PROCESS
RIGHT IN ARTICLE 1, PARAGRAPH 10 OF THE
N.J. CONSTITUTION WHICH INSURES THAT A
CRIMINAL DEFENDANT IS AFFORDED FULL
DISCOVERY OF ALL EVIDENCE TO BE
PRESENTED AGAINST HIM IN ACCORDANCE
WITH RULE 3:13-3.

Having reviewed these arguments in light of the record and law, we affirm

defendant's convictions, but remand for resentencing and an ability-to-pay

hearing. We address each of defendant's five arguments in turn.

A-2049-16T3
13
 A. The Motion to Sever

Defendant contends that the trial court's failure to sever the trials of the

two robberies prejudiced his defense and deprived him of his rights to due

process and a fair trial. We disagree.

Two or more offenses may be charged in the same indictment if the

offenses "are of the same or similar character or are based on the same act or

transaction or on [two] or more acts or transactions connected together or

constituting parts of a common scheme or plan." R. 3:7-6. Trial courts have

discretion to sever charges if "it appears that a defendant or the State [will be]

prejudiced by a permissible or mandatory joinder of offenses or of

defendants[.]" R. 3:15-2(b). In such circumstances, the trial court may order

separate trials on certain counts of the indictment. Ibid. We review a trial court's

severance ruling for an abuse of discretion. State v. Sterling, 215 N.J. 65, 73

(2013).

Severance should be granted if there is a danger that the jury could

improperly use the evidence cumulatively. Our Supreme Court has explained

that

[t]he relief afforded by Rule 3:15-2(b) addresses the
inherent "danger[,] when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would

A-2049-16T3
14
 be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all."

[Ibid. (second alteration in original) (quoting State v.
Pitts, 116 N.J. 580, 601 (1989)).]

"The test for assessing prejudice is 'whether, assuming the charges were tried

separately, evidence of the offenses sought to be severed would be admissible

under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Ibid. (quoting

State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (alteration in original)). A

defendant bears the burden of establishing prejudice. State v. Lado, 275 N.J.

Super. 140, 149 (App. Div. 1994).

Under Rule 404(b), "evidence of other crimes, wrongs, or acts" is

generally prohibited. See N.J.R.E. 404(b). If, however, such evidence is offered

to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident," it is admissible if "relevant to a material issue

in dispute." Ibid. To determine whether other-crimes evidence is admissible

under Rule 404(b), courts use a four-part test:

1. The evidence of the other crime must be admissible
as relevant to a material issue;

2. It must be similar in kind and reasonably close in
time to the offense charged;

A-2049-16T3
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 3. The evidence of the other crime must be clear and
convincing; and

4. The probative value of the evidence must not be
outweighed by its apparent prejudice.

[Cofield, 127 N.J. at 338.]

Here, the record establishes that evidence regarding each robbery was

admissible and relevant to prove defendant's identity and use of a common

scheme or plan. The trial court found that the robberies were carried out by a

man who threatened the cashiers with a silver and black handgun, de manded

money, wore a hooded sweatshirt and face covering to conceal his identity, and

fled in a gray Hyundai. In addition, the robberies were committed within a short

distance of each other. Given the numerous similarities between the Monmouth

Gas and LaCita robberies, the trial court did not abuse its discretion in finding

the two incidents were part of a common scheme or plan under Rule 3:7-6.

The trial court also found that (1) the robberies occurred ten days apart,

which was reasonably close in time; (2) the robberies were similar in kind; (3)

clear and convincing evidence of both robberies existed based on defendant's

confessions, T.W.'s identification of defendant, the video evidence, and the

physical evidence recovered from defendant's home; and (4) the probative value

of the evidence was not outweighed by any apparent prejudice to defendant.

A-2049-16T3
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Those findings were supported by substantial, credible evidence in the record.

Accordingly, the trial court did not abuse its discretion in denying defendant's

severance motion.

B. Other-Crimes Evidence

Next, defendant argues that the trial court committed reversible error by

allowing the State to present defendant's statement to detectives, which included

references to (1) the unindicted Shrewsbury robbery; (2) defendant's use of

heroin; and (3) outstanding court fees that subjected defendant to arrest.

Defendant argues there was no permissible basis to admit evidence of these

"other crimes" and his statement should have been sanitized. Moreover, he

contends that the trial court's failure to provide limiting instructions concerning

his use of heroin and his outstanding court fees deprived him of a fair trial.

Again, we use an abuse-of-discretion standard to review whether the trial

court correctly admitted these other-crimes and bad-acts evidence under Rule

404(b). See Cofield, 127 N.J. at 339-40. We find no abuse of discretion in the

admission of these three references.

We first address the reference to the Shrewsbury robbery. Defendant gave

a statement to police, wherein he confessed to the Monmouth Gas and LaCita

robberies, but vehemently denied involvement in the Shrewsbury robbery. At

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trial, the jury heard that portion of the statement. The court instructed the jury—

on three occasions—that defendant was not charged with the Shrewsbury

robbery and that they must not consider the Shrewsbury robbery in determining

defendant's culpability for the Monmouth Gas and LaCita robberies. Moreover,

since defendant denied his involvement in the Shrewsbury robbery, the

discussion of that other robbery was not other-crime evidence against him. See

State v. Figueroa, 358 N.J. Super. 317, 325-26 (App. Div. 2003) (explaining that

admission of a defendant's statement, which involved discussions of unindicted

crimes that the defendant denied involvement in, was not other-crimes evidence

as to that defendant).

Furthermore, when the State first moved to admit the portion of

defendant's statement referencing the Shrewsbury robbery, defense counsel

consented to the admission of that part of the statement. Accordingly, defendant

is barred from challenging the admissibility of the Shrewsbury reference under

the doctrine of invited error. See State v. A.R., 213 N.J. 542, 561 (2013)

("[T]rial errors that 'were induced, encouraged or acquiesced in or consented to

by defense counsel ordinarily are not a basis for reversal on appeal[.]'" (quoting

State v. Corsaro, 107 N.J. 339, 345 (1987))).

A-2049-16T3
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 Defendant also asserts that the court committed reversible error by

allowing the jury to hear portions of defendant's statement concerning his use of

heroin and his unpaid court fees. In his recorded statement, defendant told

detectives that he was high on heroin during the LaCita robbery, and that he set

up the Monmouth Gas robbery to get money to satisfy unpaid court fees. Those

portions of his statement were not redacted.

Defendant did not object to those portions of his statement at trial and,

therefore, we review those admissions for plain error. R. 2:10-2. To constitute

plain error, the evidence must have been "clearly capable of producing an unjust

result." Ibid. As part of that analysis, we "consider the effect of any error in

light 'of the overall strength of the State's case.'" State v. Baker, 400 N.J. Super.

28, 47 (App. Div. 2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Here, the jury convicted defendant of the LaCita robbery. The State's

evidence concerning that robbery was strong. Those proofs included defendant's

confession, surveillance video footage, the clothing worn by the robber

(recovered from defendant's home), and the imitation handgun used in the

robbery. Given the limited references to his use of heroin and unpaid court fees,

we discern no plain error warranting the reversal of the jury verdict.

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 C. The Request for a Mistrial

Defendant claims the State's delayed disclosure of a recorded phone

conversation between T.W. and a detective warranted a mistrial. He asserts that

the trial court's denial of his motion compromised his right to a fair trial and

requires reversal of his convictions. We disagree.

A mistrial should be granted "only to prevent an obvious failure of

justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citing State v.

Rechtschaffer, 70 N.J. 395, 406 (1976)). Whether an event at trial justifies a

mistrial is a decision "entrusted to the sound discretion of the trial court." Ibid.

(citing State v. DiRienzo, 53 N.J. 360, 383 (1969)). We "will not disturb a trial

court's ruling on a motion for a mistrial, absent an abuse of discretion that results

in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (quoting

Harvey, 151 N.J. at 205).

During trial, it came to light that there was an additional recorded

statement between a detective and T.W. When the trial court learned of that

situation, it conducted a Rule 104 hearing outside the presence of the jury. See

N.J.R.E. 104.

A-2049-16T3
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 The court also ordered the State to obtain and produce a copy of that

recording, and the recording was played at the Rule 104 hearing. The transcript

of the complete audio recording provides as follows:

[T.W.]: Hello.

[DETECTIVE]: Hello, [T.W.]?

[T.W.]: Yes.

[DETECTIVE]: How are you doing, sir? It's Detective
Cahill, the Long Branch Police Department.

[T.W.]: What's up?

[DETECTIVE]: How are you doing, my friend? I was
wondering, number one, I wanted to speak to you again
about if you have some time today or tomorrow, but
more importantly have you heard anything, anything on
the street that you think might know what's going on?

[T.W.]: No, I haven't, but maybe if you guys got a
better look at that tape you might see something.

[DETECTIVE]: What do you mean?

[T.W.]: Like during that day. Looked like I seen
somebody that looks like him around like 10:00.

[DETECTIVE]: Do you think so?

[T.W.]: Well, like around 10 o'clock.

[DETECTIVE]: Okay.

A-2049-16T3
21
[T.W.]: You might want to look at the shoes, people
walking in and out. You might see it.

[DETECTIVE]: You might see it. Do you think you
saw it?

[T.W.]: I didn't see the shoes, but - -

[DETECTIVE]: You think you saw?

[T.W.]: Yeah.

[DETECTIVE]: And - - all right. All right. I
appreciate that. And that's, you know, more of what I
wanted to talk to you about. I know that you're a
perceptive guy and we're dealing with that. You have
no idea it took - - it's taken like eight hours to download
that video because it's a very old system. The guy has
it, so if you think 10 o'clock, in the 10 o'clock hour, I'll
- - is there something you - - did you talk to [P.S.] about
this?

[T.W.]: Huh?

[DETECTIVE]: Did you talk to [P.S.] about this?

[T.W.]: Um. . .

[DETECTIVE]: Your boss?

[T.W.]: No, no. I work with - - give you all a call
yesterday, but sort of fucking shits. Man, I don't like
this type of shit, but - -

[DETECTIVE]: Hey, I, I, I completely understand
where you're coming from and I feel like today that, you
know, you know a little bit more and I know you don't
want to jump out and say it and I'm doing my best to

A-2049-16T3
22
figure it all out on my own, but every once in a while I
need a little bit of help.

[T.W.]: All right. Around the 10:00 hour, like, he
showed me, he showed me like a video. He asked me
if it was a certain dude and I said, na, it wasn't him.

[DETECTIVE]: Who's that certain dude that you know
it's not?

[T.W.]: Fucking W[.S.].

[DETECTIVE]: Okay.

[T.W.]: He was in there with somebody else.

[DETECTIVE]: Okay.

[T.W.]: And fuck him. He tried to play me the fuck
out, so fuck him, too. So - -

[DETECTIVE]: Listen to me. We're - - if you - - listen.
I'm very, very close to the brother of W[.S.], so if you
think you can help me out any more, you know, just,
there's other things you can tell me on the fly and it will
help me out, keep [me] on the fly. All right?

[T.W.]: All right. Like I said, it was - - it wasn't W[.S.]

[DETECTIVE]: Okay.

[T.W.]: I know W[.S.], and I don't think W[.S.] would
do nothing like that to me.

[DETECTIVE]: Yeah.

[T.W.]: But - -

A-2049-16T3
23
 [DETECTIVE]: But his brother is a different story?

[T.W.]: Like I said, you might want to - -

[DETECTIVE]: Okay. I got you. I got you. I'm going
to deal with that and just answer my call if I call you.
Okay? I really appreciate it.

[T.W.]: All right.

[DETECTIVE]: Thank you, [T.W.]

[T.W.]: All right.

[DETECTIVE]: Bye.

[T.W.]: Bye.

The trial court reasoned that the recording was not exculpatory because it

actually reinforced T.W.'s identification of defendant. The court also found that

the recording bolstered the State's case and, therefore, it did not present the type

of exculpatory evidence that was likely to favor the defense and result in a

manifest injustice. We discern no abuse of discretion in the trial court's

reasoning and decision to deny the motion for a mistrial.

D. The Alleged Cumulative Errors

Defendant contends that there were multiple errors at his trial, which in

cumulative effect deprived him of due process and a fair trial. The errors that

defendant points to, however, are the errors concerning severance, the admission

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of other-crime and bad-act evidence, and the denial of his motion for a mistrial.

As we have already analyzed, none of those alleged errors have merit.

Consequently, defendant has not demonstrated any prejudice and he has also

failed to establish that he did not receive a fair trial. See State v. Weaver, 219

N.J. 131, 155 (2014) (explaining that the theory of cumulative error does not

apply where no error was prejudicial and the trial was fair). Here, a review of

the record establishes that defendant received a fair trial.

E. The Sentence

Finally, defendant argues that his sentence was incorrect because the court

failed to merge his convictions for possession of an imitation weapon for an

unlawful purpose with his robbery convictions. Defendant also argues that he

is entitled to an ability-to-pay hearing regarding the imposition of discretionary

fines. The State agrees that a remand is necessary for both of those reasons.

We also agree that this matter must be remanded for resentencing. Under

N.J.S.A. 2C:1-8(a), defendant's possession of an imitation firearm when he

committed both robberies were elements of defendant's armed robbery

convictions. Accordingly, his weapons convictions should have merged with

his robbery convictions. See State v. Diaz, 144 N.J. 628, 641 (1996) (explaining

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that when the proofs established that defendant's unlawful purpose was to use a

gun against a victim of a robbery, merger was required).

Moreover, defendant was entitled to an ability-to-pay hearing concerning

the imposition of discretionary fines. Here, the trial court imposed $700 in

discretionary fines. In determining a defendant's ability to pay discretionary

fines, "the court shall take into account the financial resources of the defendant

and the nature of the burden that its payment will impose." N.J.S.A. 2C:44 -

2(c)(1); see also State v. Newman, 132 N.J. 159, 178-79 (1993). Here, the

sentencing court failed to consider defendant's ability to pay the discretionary

fines. Accordingly, we remand for resentencing and an ability-to-pay hearing.

Defendant's convictions are affirmed. His sentences are vacated and we

remand for resentencing. We do not retain jurisdiction.

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