STATE OF NEW JERSEY VS. JOHNATHAN D. MORGAN (11-04-0373, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0390-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNATHAN D. MORGAN,
a/k/a JONATHAN D. MORGAN,

Defendant-Appellant.
_______________________________

Submitted January 17, 2018 – Decided July 24, 2018

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
11-04-0373.

Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Ann M. Luvera, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Johnathan D. Morgan appeals his May 1, 2015 judgment

of conviction for second-degree robbery and felony murder.1 We

affirm.

I.

The following facts were elicited during defendant's trial.

At 4:02 a.m. on September 28, 2010, a male caller placed a phone

call from a blocked number to United Taxi Company and requested

to be picked up at a West Sixth Street address in Plainfield.2 The

late-night dispatcher, Jimmy Morel, sent driver Jose Gomez to pick

up the caller.

Gomez testified as follows. When he arrived at the West

Sixth Street address, a man approached his cab and attempted to

get in the backseat. Gomez noticed the man was hesitant to fully

enter the vehicle and recoiled when the interior light came on as

the door opened. As the man backed out of the rear door of the

taxi, Gomez saw what looked like a silver gun in the man's left

hand. Gomez immediately drove away with the rear door of the cab

1
The judgment of conviction was amended September 24, 2015.
2
At trial, expert Adam Durando testified that adding the prefix
*67 to an outgoing call from a cellular phone prevents the
receiving phone from reading the caller ID information, and thus
the incoming number comes up as "blocked."

2 A-0390-15T4
still open, leaving the man behind. After he had driven a few

blocks, Gomez called the police and Morel to report the incident.

Morel testified as follows. At around 5:35 a.m. that morning,

he received a call from a man using a blocked number requesting

to be picked up at an address on Spooner Avenue in Plainfield and

dispatched driver Isidro Leonardo. Morel later became concerned

that Leonardo had not contacted him to let him know he had dropped

off the man from Spooner Avenue and was available to pick up his

next fare. Morel's attempts to reach Leonardo were unsuccessful.

Gomez was near Spooner Avenue, so Morel asked him to drive by and

see if he could determine what was happening with Leonardo.

Gomez testified that he arrived at the Spooner Avenue location

at the same time as a police officer. They found Leonardo's taxi

pinned against another vehicle. Leonardo was unconscious in the

driver's seat and had been shot in the back of the head. Leonardo

was taken to the hospital where he later died.

A police investigation found a palm print made by co-defendant

Wallace Parrish on the partition between the front and rear seats

of Leonardo's taxi. A review of phone records revealed that the

blocked phone number that called Morel and requested a pick up on

West Sixth Street, came from a cell phone registered to Parrish's

cousin who testified that Parrish was using his old phone. The

call that had requested a taxi be sent to Spooner Avenue had come

3 A-0390-15T4
from a cell phone number registered to R.C. She testified that

phone number belonged to L.N., with whom she had a child. R.C.

further testified that L.N. was incarcerated during the summer and

fall of 2010, and that during this time, he instructed her to

contact defendant, L.N.'s cousin, at that phone number if she

needed anything for the child while L.N. was locked up. R.C.

testified that during the summer of 2010, she contacted defendant

at that number in order to get diapers for her child.

Phone records for that number documented it was used to make

blocked calls to several taxi companies from approximately 4:30

to 5:30 a.m. on September 28: United Taxi at 4:31, 4:40, and 4:50

a.m.; Caribe Taxi at 4:48 a.m.; and to Flash Taxi at 4:29, 5:30,

5:31, and 5:34 a.m. That number was also used to call defendant's

girlfriend at 6:54 a.m. and defendant's cousin K.M. at 5:13 and

6:31 a.m.

In his videotaped statement to police, K.M. stated he had

seen defendant and Parrish together with some other people on

Prescott Place in Plainfield at 1:30 a.m. on September 28, and

that he had called defendant at around 5:30 a.m. that morning, and

that defendant said he was with Parrish on Third Street.

Parrish testified at defendant's trial as follows. On the

night of September 27 and into the pre-dawn hours of September 28,

he was hanging out with several people, including defendant,

4 A-0390-15T4
drinking and smoking on the corner of Prescott Place and Third

Street in Plainfield. Once the other people went home for the

night, Parrish and defendant went to the Sixth Street area and set

about "[f]inding people to rob," but the streets were empty so

they "decided to do cabs," by which he meant "[r]ob them."

Parrish testified they decided he would perform the first

robbery, and defendant gave him a silver revolver. Parrish called

several taxi companies and requested to be picked up near the

corner of Sixth Street and Lee Place, where defendant's girlfriend

lived. Parrish and defendant waited in a dark area near the corner

for a taxi to arrive. When a cab pulled up to the corner, Parrish

approached the driver's side and began to get in. However, he saw

that the divider between the front and back of the cab was closed,

and realized he would not be able to rob the driver. He backed

out, and the cab pulled away. Parrish believed that the driver

sped off because he saw the revolver tucked into his jeans on his

right hip.

Parrish testified he and defendant decided to try to rob

another cab. This time, defendant called several cab companies

from his phone and requested to be picked up on Spooner Avenue.

When a cab arrived, defendant was in possession of the revolver

and wearing gloves. Defendant and Parrish entered the backseat

and got into "a little dispute going back and forth" about "who

5 A-0390-15T4
was going to do [the robbery]." Defendant tried to get Parrish

to take the gun, saying "go ahead, go ahead. I got the next one."

Parrish refused, and told defendant "[i]f you ain't going to do

it, I'm getting out." Parrish got out of the cab, and stood by a

tree while waiting for defendant. Parrish heard defendant command

the driver: "Give me the money. Give me the money." Parrish then

heard a single gunshot go off inside the cab and saw a flash of

light. Parrish saw defendant exit the cab and they fled in

different directions.

The grand jury indicted defendant and Parrish with: count

one - first-degree purposeful or knowing murder, N.J.S.A. 2C:11-

3(a)(1) or (2); count two - first-degree armed robbery, N.J.S.A.

2C:15-1; count three - first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3); count four - second-degree conspiracy to commit robbery,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; count five - second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and count

six - second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a)(1).

Parrish was tried separately and acquitted of murder, but

convicted of the remaining charges. Prior to being sentenced,

Parrish entered into an agreement with the prosecutor to testify

against defendant in exchange for a recommendation that Parrish

6 A-0390-15T4
be sentenced to thirty years in prison with a thirty-year period

of parole ineligibility.3

Defendant's trial was conducted from March 3 to 18, 2015.

The jury found defendant guilty of second-degree robbery on count

two and first-degree felony murder under count three, and acquitted

him on the remaining charges. The jury specifically found that:

defendant committed robbery by threatening or putting in fear of

immediate bodily injury, not by inflicting bodily injury or using

force; defendant was not armed and did not use or threaten use of

a deadly weapon; and defendant was guilty of felony murder as a

non-slayer participant, not as a slayer participant. Defendant

was sentenced to forty-five years in prison with a thirty-year

period of parole ineligibility and an 85% period of parole

ineligibility under the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.

Defendant appeals, arguing in his counseled brief:

POINT I – DEFENDANT WAS DEPRIVED OF A FAIR
TRIAL BY THE COURT'S FAILURE TO CHARGE, SUA
SPONTE, THE STATUTORY AFFIRMATIVE DEFENSE TO
NON-SLAYER PARTICIPANT FELONY MURDER. (Not
Raised Below).

POINT II – THE MATTER SHOULD BE REMANDED FOR
RE-SENTENCING TO ACHIEVE GREATER UNIFORMITY IN
THE SENTENCES IMPOSED ON MORGAN AND HIS CO-
DEFENDANT (Not Raised Below), AND TO CORRECT
ERRORS IN THE SENTENCING COURT'S FINDINGS.

3
We affirm Parrish's judgment of conviction in a separate opinion.

7 A-0390-15T4
 A. This matter should be remanded to
correct the disparity between
Morgan's sentence and that of his
more-culpable co-defendant.

B. The matter should be remanded for
re-sentencing to correct errors in
the sentencing court's findings.

Also, defendant's pro se supplemental brief argues:

POINT I – Prosecutor Erred in charging
Defendant Jonathan Morgan For Non-Slayer
Participant To Murder. For there was no
evidence to link Mr. Morgan to the offenses
charged other than Co-Defendant.

POINT II – The Prosecution made Inflammatory
and Bias[ed] remarks as well as Prejudicial
Comments towards Defendant Jonathan Morgan
that ultimately lead to the conviction of
Defendants Trial.

II.

The trial court instructed the jury it could convict defendant

of felony murder as a slayer participant or as a non-slayer

participant. See Model Jury Charge (Criminal), "Felony Murder –

Slayer Participant (N.J.S.A. 2C:11-3a(3))" (rev. Mar. 22, 2004);

Model Jury Charge (Criminal), "Felony Murder – Non-Slayer

Participant (N.J.S.A. 2C:11-3a(3))" (rev. Mar. 22, 2004) [Non-

Slayer Charge]. Defendant never requested that the court charge

on affirmative defense in the Non-Slayer Charge. During the charge

conference, the trial court reviewed the Non-Slayer Charge and

stated that the "[a]ffirmative defenses are not applicable here,"

8 A-0390-15T4
and that the charge's language about the affirmative defense "comes

out." Defense counsel did not object, even though he commented

on other portions of the charge.

On appeal, defendant argues for the first time that the trial

court should have sua sponte instructed the jury to consider the

affirmative defense to non-slayer participant felony murder.

However, the evidence did not require the court to instruct on

that defense.

Where a defendant "does not request the [non-slayer

affirmative defense] instruction, it is only when the evidence

clearly indicates the appropriateness of such a charge that the

court should give it." State v. Walker, 203 N.J. 73, 87 (2010).

Moreover, such a defendant must show plain error. Id. at 78, 89.

Defendant must demonstrate "[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant

and sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." Id. at 90

(quoting State v. Burns, 192 N.J. 312, 341 (2007)); see R. 2:10-

2. We must hew to that standard of review.

Generally, "trial counsel's failure to request an instruction

gives rise to a presumption that he did not view its absence as

prejudicial to his client's case." State v. McGraw, 129 N.J. 68,

9 A-0390-15T4
80 (1992). A claim of prejudice "'must be evaluated in light of

the totality of the circumstances — including all the instructions

to the jury, [as well as] the arguments of counsel.'" State v.

Adams, 194 N.J. 186, 207 (2008) (citation omitted). An "error in

a jury instruction that is 'crucial to the jury's deliberations

on the guilt of a criminal defendant' is a '"poor candidate[] for

rehabilitation" under the plain error theory.' Nevertheless, any

alleged error also must be evaluated in light 'of the overall

strength of the State's case.'" Burns, 192 N.J. at 341 (citations

omitted); accord Walker, 203 N.J. at 90.

N.J.S.A. 2C:11-3(a)(3) includes an affirmative defense to a

homicidal act if the defendant was not the only participant in the

underlying crime and the defendant:

(a) Did not commit the homicidal act or in any
way solicit, request, command, importune,
cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any
instrument, article or substance readily
capable of causing death or serious physical
injury and of a sort not ordinarily carried
in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that
any other participant was armed with such a
weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that
any other participant intended to engage in
conduct likely to result in death or serious
physical injury.

10 A-0390-15T4
 There must be "some evidence to support each of the four

factors" before an instruction on the affirmative defense must be

given. Walker, 203 N.J. at 84, 89. If the evidence "did not

provide any support for" any one of the factors, the defendant was

"not entitled to any instruction on the defense." State v. Smith,

322 N.J. Super. 385, 396 (App. Div. 1999); see State v. Ingram,

196 N.J. 23, 35, 43 (2008) (approving a judge's instruction that

the State need only "disprove one of those elements"); Non-Slayer

Charge at 5 (similar).

In Walker, our Supreme Court addressed for the first time

"the issue of when a trial court should instruct the jury on the

defense to statutory felony murder in the absence of a request to

charge from counsel." Walker, 203 N.J. at 86. The Court held

that the applicable standard is the standard governing "a trial

court's duty to charge the jury sua sponte with lesser-included

offenses." Id. at 86-87. As such, the Court instructed that "so

long as there is some evidence pertaining to each of the four

prongs of the defense, whether produced in the State's case or in

defendant's case, the instruction on the affirmative defense to

felony murder should be given to the jury." Id. at 89 (emphasis

added).

Here, the record was devoid of evidence as to any of the four

prongs. The only witness to the robbery and killing who testified

11 A-0390-15T4
was Parrish. Parrish testified defendant was armed with a deadly

weapon and committed the homicidal act, negating two prerequisites

for the affirmative defense. N.J.S.A. 2C:11-3(a)(3)(a)-(b).4

There was no evidence to the contrary. Defendant did not testify

or call any witnesses, and no statements by defendant were

introduced at trial. Cf. Walker, 203 N.J. at 87-89 (relying on

the defendant's trial testimony); Smith, 322 N.J. Super. at 396

(same). Because there was no evidence "that defendant was not a

direct participant in the commission of the homicidal act" and was

unarmed, the affirmative defense was inapplicable. State v.

Sheika, 337 N.J. Super. 228, 251 (App. Div. 2001).

Indeed, defendant never claimed he was an unarmed participant

in the robbery who did not commit the homicidal act. Rather, in

his opening argument, defense counsel contended that defendant

"had absolutely nothing to do with [the] two robberies of taxicab

drivers on that morning," that "[t]here will be nothing connecting

Mr. Morgan to this case other than" Parrish, that Parrish was the

4
Parrish also testified defendant knew that Parrish had been armed
with a deadly weapon, and that Parrish (like defendant) intended
to commit armed robbery. We need not reach whether that was
contrary to the other two prerequisites for the affirmative
defense, N.J.S.A. 2C:11-3(a)(3)(c)-(d). See State v. Belliard,
415 N.J. Super. 51, 76 (App. Div. 2010) (indicating that a
defendant must have "had nothing to do with the act that caused
the death" and that "the intent and preset plan [must be] to commit
a non-violent felony").

12 A-0390-15T4
perpetrator, and that Parrish was lying to get a deal. In his

closing arguments, defense counsel again contended that Parrish

was "the sole actor" who "acted alone" and did the crimes "on his

own," that Parrish was falsely implicating defendant to get a

deal, and that there was no other testimony that defendant "was

anywhere near either robbery." Defense counsel also argued that

Parrish had borrowed defendant's cell phone to call the taxi

companies, and that defendant was only "guilty of being in the

[neighbor]hood." The jury did not agree.

Thus, there was no evidence supporting any of the prongs of

N.J.S.A. 2C:11-3(a)(3)(a) – (d), nor did defendant claim there was

any. Therefore, the trial court did not err in finding the

affirmative defense was inapplicable.

Defendant argues that if the jurors believed only the State's

evidence defendant used his cell phone to call taxi companies so

a taxi could be robbed, they could have convicted him as an

accomplice to robbery without finding he committed the homicidal

act, was armed with a deadly weapon, or had a reasonable belief

Parrish was armed with a deadly weapon. However, there was

evidence supporting all of those findings, and no evidence to the

contrary. There must be "some evidence" contrary to those

findings, and indeed to all four factors in N.J.S.A. 2C:11-

13 A-0390-15T4
3(a)(3)(a)-(d), before it is appropriate to instruct on the

affirmative defense. Walker, 203 N.J. at 84, 89.

Moreover, to determine "when a trial court should instruct

the jury on the defense to statutory felony murder in the absence

of a request to charge from counsel," we apply "the standard that

we require concerning a trial court's duty to charge the jury sua

sponte with lesser-included offenses." Id. at 86. "[W]hen the

defendant fails to ask for a charge on lesser-included offenses,

the court is not obliged to sift meticulously through the record

in search of any combination of facts supporting a lesser-included

charge." Id. at 86-87 (quoting State v. Denofa, 187 N.J. 24, 42

(2006)). "Only if the record clearly indicates a lesser-included

charge — that is, if the evidence is jumping off the page — must

the court give the required instruction." Denofa, 187 N.J. at 42;

see Walker, 203 N.J. at 86. Defendant's current parsing of the

evidence would not have jumped off the page, was not clearly

indicated, and improperly would have required the trial court to

sift meticulously through the record in search of that particular

combination of facts. It was not plain error that the trial court

did not do so.

14 A-0390-15T4
 Defendant notes he was acquitted of the handgun possession

charges and of conspiracy to rob Gomez.5 However, those acquittals

after the trial was over did not supply the evidence absent when

the trial court was shaping its charge. In any event, defendant

cannot rely on acquittals because "it cannot be determined why a

jury returned an acquittal." State v. Kelly, 201 N.J. 471, 488

(2010). Unlike guilty verdicts which must be supported by

sufficient evidence, acquittals "may result from lenity,

compromise, or even mistake. We therefore must resist the

temptation to speculate on how the jury arrived at a verdict."

State v. Goodwin, 224 N.J. 102, 116 (2016) (citations omitted).

Finally, we note the affirmative defense would have been

"'incompatible with defendant's position at trial.'" State v.

Daniels, 224 N.J. 168, 184 (2016) (quoting State v. R.T., 205 N.J.

493, 510 (2011) (Long, J., concurring)).6 Defendant's defense was

that he was totally uninvolved and unaware of Parrish's plans to

commit robbery. However, the premise of the affirmative defense

to felony murder is that the defendant was a "participant in the

5
We note the jury was not instructed it could find defendant
guilty of the handgun charges as an accomplice or a conspirator,
or guilty of conspiracy to rob if he conspired to rob Leonardo.
6
In R.T., "four justices, or a majority of the Court, agreed with
the analysis set forth in Justice Long's concurrence." Daniels,
224 N.J. at 184.

15 A-0390-15T4
underlying crime," namely the robbery. N.J.S.A. 2C:11-3(a)(3);

see Walker, 203 N.J. at 83. Such "affirmative defenses generally

are more problematic because they have, 'at their core, the notion

that a defendant has indeed committed the interdicted act but that

he should be excused from its consequences.'" Daniels, 224 N.J.

at 184 (quoting R.T., 205 N.J. at 510-11 (Long, J., concurring)).

Even if the affirmative defense "was clearly indicated on the

record," courts must consider "whether the potential instruction

would be incompatible with defendant's position at trial or would

prejudice the defense in some way," such as by "dr[awing] the

jury's attention away from his true defense — that he never

intended to conspire or aid or assist in the commission of the

crimes." Id. at 187. "[A] defendant who denies having committed

a crime should not be required to acknowledge, either explicitly

or inferentially, complicity in the event by way of a compelled

affirmative defense." R.T., 205 N.J. at 511 (Long, J.,

concurring). "'[F]orcing counsel to incorporate defenses that

pre-suppose the existence of the very fact his main method of

defense contests destroys the credibility and coherence of the

defense entirely.'" Id. at 510 (citation omitted). The trial

court was not required sua sponte to "foist[] on defendant an

affirmative defense that he did not want and could not meet."

Daniels, 224 N.J. at 187.

16 A-0390-15T4
 III.

In his pro se brief, defendant argues the State could not

charge him with felony murder either as the slayer or as a non-

slayer participant. He claims that the only evidence against him

was Parrish's testimony, that Parrish perjured himself, and that

the prosecutor failed to disclose the perjury. However, while the

verdict shows the jury did not find defendant guilty beyond a

reasonable doubt of some of the counts despite Parrish's testimony,

defendant has not shown that Parrish perjured himself, that the

prosecution "knowingly used perjured testimony," or that there was

"'any reasonable likelihood that the false testimony could have

affected the judgment of the jury'" on the remaining counts. State

v. Carter, 91 N.J. 86, 112 (1982) (quoting United States v. Agurs,

427 U.S. 97, 103-04 (1976)). Defendant's claim lacks sufficient

merit to warrant further discussion. R. 2:11-3(e)(2).

IV.

Defendant's pro se brief argues he was unfairly prejudiced

by remarks by the prosecutor. However, the trial court prevented

any prejudice from the remarks.

Defendant cites a rhetorical question from the prosecutor's

opening: "What innocent reason would there be to call three

different cab companies in succession from two different phones

and block your numbers?" Defendant did not object to that

17 A-0390-15T4
statement. Accordingly, "defendant must demonstrate plain error."

State v. Timmendequas, 161 N.J. 515, 576 (1999). "Generally, if

no objection was made to the improper remarks, the remarks will

not be deemed prejudicial." Ibid. Indeed, it was "'fair to infer

from the failure to object below that in the context of the trial

the error was actually of no moment.'" State v. Nelson, 173 N.J.

417, 471 (2002) (quoting State v. Macon, 57 N.J. 325, 333 (1971)).

In closing, the prosecutor argued: "What innocent

explanation? I submit there is none." The trial court

interrupted, telling the jury:

I want to remind the jury that the defendant
doesn't have to explain a darn thing, not
anything. . . . [Y]ou can't take into the
jury room anything that would put any burden
on the defendant that he has to produce any
evidence or he has to prove his innocence or
anything else. He doesn't have to explain
anything.

In denying defendant's motion for a new trial, the trial

court noted that "[t]he same principle was expressed to the jury

on a great number of occasions during the initial instructions,

. . . during voir dire, . . . and again during final instructions."

For example, the court's final instructions reminded the jury:

The burden of proving each and every element
beyond a reasonable doubt rests on the State,
and you know that burden never shifts over to
the defense. It's not the defendant's duty
or obligation to prove his innocence, as I
said during summations, or even offer any

18 A-0390-15T4
 proof relating to his innocence, which I said
as well.

These instructions were more than adequate to remove any prejudice

from the prosecutor's remarks, which in any event "were not a

direct comment on defendant's failure to testify." State v.

Purnell, 126 N.J. 518, 539 (1992).

Defendant cites another remark from the prosecutor's opening:

"The 5:35 call, what I refer to – and I will during the course of

this trial – as the murder call, that came from a phone that was

used by [defendant]." Defendant again did not object, but after

the prosecutor's opening, the trial court called both counsel to

sidebar and instructed the prosecutor not to use the expression

"murder call" because it was inflammatory.

During closing argument, the prosecutor referenced the

"murder call" twice, and defense counsel objected to the second

remark. After a sidebar conference, the trial court stated it did

not believe it justified a mistrial, but issued a prompt curative

instruction:

[T]he term "murder call" should not influence
your decision one way or another. As [the
prosecutor] was instructed, she will no longer
use that term for the phone call that was made
to United Taxi. Please don't let that inflame
your senses. I know murder is the charge. I
know the telephone call was alleged to have
been made that led to the murder, but that's
a shorthand term that shouldn't be used and I
don't want that to enter into your

19 A-0390-15T4
 deliberations to stir up your passions. This
call has to be made by you without any passion,
without any sympathy, without any preconceived
ideas. I don't want any of those emotions
entering into your deliberations at any time
for any purpose so please don't consider that
term as well.

[(emphasis added).]

This instruction negated any potential prejudice arising from

the prosecutor's use of "murder call." "We presume the jury

followed the court's instructions." State v. Smith, 212 N.J. 365,

409 (2012). As the trial court found in denying defendant's motion

for a new trial, it was "obvious the wording used by the assistant

prosecutor did not impact the jur[ors] since they found defendant

not guilty of murder and felony murder as a slayer participant."

See State v. Patterson, 435 N.J. Super. 498, 511 (App. Div. 2014).

Because "the trial court promptly and effectively dealt with those

comments via a curative instruction . . . the relief requested by

defendant is unwarranted." State v. Wakefield, 190 N.J. 397, 440

(2007).

Finally, defendant cites the prosecutor's comment in closing

argument that Leonardo's "blood and . . . his brain ended up on

the front seat of his taxicab." Defendant did not object, but the

trial court raised the comment sua sponte in the same sidebar, and

then instructed the jury:

20 A-0390-15T4
 you can consider the fact that there may be
blood on there, but do not consider the fact
that the material on that front seat was brain
matter. . . . [T]hat's not competent evidence
for you to consider so I'm not going to allow
you to consider that. I'm going to strike
that. Pretend you never heard it, never used
it.

Moreover, the trial court instructed the jury before closing

argument that "what's said during summations is not evidence."

After the closings, the court reiterated:

Regardless of what counsel may have recounted
the facts to be during the course of the trial
or especially in summations, . . . it's your
recollection of the evidence that should guide
you in your deliberations. Arguments and
statements and remarks and openings and
closings while they're important are not
evidence . . . [A]ny comments by counsel are
not controlling.

In denying defendant's motion for a mistrial after

summations, the trial court found it had given "enough curative

instructions." In denying the motion for a new trial at

sentencing, the court noted "[t]he record won't reflect my tone

of voice but I was adamant when I gave those instructions." The

court found the "immediate curative instruction[s] combined with

the general instructions . . . removed any prejudice that may have

resulted from those statements. The jury's verdict is proof that

there was no manifest denial of justice under the law, nor was

there any miscarriage of justice."

21 A-0390-15T4
 "Whether testimony or a comment by counsel is prejudicial and

whether a prejudicial remark can be neutralized through a curative

instruction or undermines the fairness of a trial are matters

'peculiarly within the competence of the trial judge.'" State v.

Yough, 208 N.J. 385, 397 (2011) (citation omitted). "'An appellate

court 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) (citation

omitted). We find no abuse of discretion.

V.

Finally, defendant's counseled brief challenges his sentence.

"Appellate courts review sentencing determinations in accordance

with a deferential standard." State v. Fuentes, 217 N.J. 57, 70

(2014). The sentence must be affirmed unless:

(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) 'the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.'

[Ibid. (quoting State v. Roth, 95 N.J. 334,
364-65 (1984)).]

A.

Defendant argues this matter should be remanded for re-

sentencing to correct the disparity between his forty-five year

22 A-0390-15T4
sentence and Parrish's thirty-year sentence on the first-degree

felony murder count. We disagree. However, the difference

reflects that Parrish cooperated with the State.

Our Supreme Court has "consistently stressed uniformity as

one of the major sentencing goals in the administration of criminal

justice." State v. Roach, 146 N.J. 208, 231 (1996). Unwarranted

"[d]isparity [with the sentence of a co-defendant] may invalidate

an otherwise sound and lawful sentence." Id., at 232 (citing,

e.g., State v. Hubbard, 176 N.J. Super. 174, 175 (Resent. Panel

1980)). However, "'[a] sentence of one defendant not otherwise

excessive is not erroneous merely because a co-defendant's

sentence is lighter.'" Ibid. (quoting State v. Hicks, 54 N.J.

390, 391 (1969)). "The trial court must determine whether the co-

defendant is identical or substantially similar to the defendant

regarding all relevant sentencing criteria." Id. at 233.

Defendant and Parrish are "dissimilar" because Parrish

"provided meaningful cooperation with the prosecution," and

"testified against defendant as a prosecution witness." State v.

Williams, 317 N.J. Super. 149, 155, 159 (App. Div. 1998). "The

leniency [Parrish] received was predicated upon [his] willingness

. . . to cooperate with the State in the prosecution of

[defendant]." Hubbard, 176 N.J. Super. at 186. "It would be

grossly unfair" if a cooperating defendant "had to be sentenced

23 A-0390-15T4
without regard to . . . [his] aid to the prosecution in coping

with crime." Williams, 317 N.J. Super. at 159. Thus, "[t]here

was no 'grievous inequity' between his sentence, and the sentence

of the codefendant[] who w[as] eligible to receive mitigating

consideration by reason of [his] cooperation with law enforcement

authorities." State v. Gonzalez, 223 N.J. Super. 377, 393 (App.

Div. 1988) (quoting Hicks, 54 N.J. at 391).

"[T]he Guidelines recognize the importance of a defendant's

cooperation with the State which was clearly expressed by the

Legislature when it made cooperation a mitigating factor for

sentencing purposes." State v. Gerns, 145 N.J. 216, 224 (1996)

(citing N.J.S.A. 2C:44-1(b)(12) (making "[t]he willingness of the

defendant to cooperate with law enforcement authorities" a

mitigating factor)). A sentencing court may and should acknowledge

a defendant's cooperation. State v. Dalziel, 182 N.J. 494, 505-

06 (2005).

Moreover, Roach focused on the unjustified disparity between

defendants' minimum sentences and found "the disparity between the

sentences is not minimal — it is huge: thirty additional years in

prison." 146 N.J. at 216, 233. By contrast, defendant's minimum

sentence under NERA was only 8.25 years longer than Parrish's

thirty-year minimum sentence. Such a reward for cooperation was

not "'such a clear error of judgment that it shocks the judicial

24 A-0390-15T4
conscience.'" Roach, 146 N.J. at 230 (quoting Roth, 95 N.J. at

363-64).

Defendant emphasizes he was convicted of fewer crimes than

Parrish. However, both defendants were convicted of first-degree

felony murder. It was that crime which determined their maximum

and minimum sentences.

We recognize defendant was convicted as a non-slayer

participant, and Parrish as a slayer participant, in the felony

murder. However, the "justification for the felony-murder rule"

is that "one who commits a felony should be liable for a resulting,

albeit unintended, death." State v. Martin, 119 N.J. 2, 20 (1990).

None of the felons, including the slayer, need have any intent to

kill. Id. at 20, 23. Unless the affirmative defense applies, the

non-slayer equally "assume[d] a homicidal risk" by committing the

felony. Id. at 22-23. Thus, an "accomplice may be liable for the

death of the victim even if he or she was not the gunman who killed

the victim, but was merely a lookout for the driver of a getaway

car." Id. at 33. Given the nature of felony murder, we cannot

say the difference in defendants' roles made the trial court's

reward for cooperation unwarranted or shocking. See ibid. (stating

"the focus should be on the relationship between the victim's

death and the felony, not the individual roles of the various

perpetrators").

25 A-0390-15T4
 Finally, defendant was sentenced two months before Parrish,

at which time Parrish had only a recommendation from the State for

a thirty-year sentence. Accordingly, it was not yet certain what

Parrish's sentence would be.

B.

Defendant further argues the trial court erred in finding

aggravating factors. The sentencing court found no mitigating

factors and aggravating factors three, six, and nine: "(3) The

risk that the defendant will commit another offense"; "(6) The

extent of the defendant's prior criminal record and the seriousness

of the offenses of which he has been convicted"; and "(9) The need

for deterring the defendant and others from violating the law."

N.J.S.A. 2C:44-1(a).

Defendant claims his criminal record did not justify the

trial court's finding that "[t]here is a strong aggravating factor

six." However, the court properly relied on defendant's five

prior indictable convictions for drug trafficking, drug

possession, drug trafficking again, contempt, and his throwing

bodily fluids at a Department of Corrections employee; two

disorderly persons offenses for hindering; and two violations of

probation as an adult as well as four juvenile adjudication for

drugs, obstruction, and violating probation. Moreover, "the

weighing of aggravating and mitigating factors" is left to the

26 A-0390-15T4
"sound discretion" of the trial court. State v. Jarbath, 114 N.J.

394, 402 (1989). We find no abuse of discretion.

Defendant claims the trial court double-counted Leonardo's

death in its finding of aggravating factor nine:

There is definitely a need to deter here, both
generally and specifically. This was a
senseless murder of a gentlemen who was trying
to make a living for his family. He was living
his life, and he was doing all the right
things. There is no reason these two
gentlemen, as convicted by this jury, had the
right to take his livelihood, to take him from
his family, to take his life.

"It is well-settled that where the death of any individual

is an element of the offense, that fact cannot be used as an

aggravating factor for sentencing purposes." State v. Carey, 168

N.J. 413, 425 (2001). However, the court was emphasizing that

defendant had "no reason" for this "senseless" killing. A court

may consider the senseless nature of a crime without double-

counting. See State v. Bowens, 108 N.J. 622, 639 (1987) (citing

the "senseless nature of the stabbing"). Unlike a killing

committed for a reason, which may not recur if the reason does not

recur, a senseless killing may recur without reason, and thus may

require greater deterrence. Deterrence is "one of the most

important factors in sentencing." Fuentes, 217 N.J. at 78-79.

Thus, the court sufficiently explained why it found there was a

need to deter both defendant and others, and its finding was

27 A-0390-15T4
supported by competent and credible evidence in the record. See

id. at 80-81. We find no "abuse of discretion." State v. Robinson,

217 N.J. 594, 603 (2014).7

Affirmed.

7
Cf. State v. Case, 220 N.J. 49, 68 (2014) (remanding where "the
court did not adequately explain its decision to give that factor
'particular emphasis'"); Fuentes, 217 N.J. at 63 (remanding for
further explanation where the judge found a contrary mitigating
factor).

28 A-0390-15T4