STATE OF NEW JERSEY VS. KASHIF PARVAIZ (12-06-0665, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-5029-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KASHIF PARVAIZ,

Defendant-Appellant.
______________________________________________

Submitted February 12, 2018 – Decided June 18, 2018

Before Judges Messano, Vernoia, and DeAlmeida.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
12-06-0665.

Ferro and Ferro, attorneys for appellant
(Nancy C. Ferro, on the briefs).

Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor and Paula C.
Jordao, Assistant Prosecutor, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

A Morris County grand jury indicted defendant Kashif Parvaiz

and his paramour, Antoinette Stephen, for the murder of defendant's
wife, Nazish Noorani. Stephen pled guilty to murder and related

charges pursuant to a plea agreement with the State and testified

against defendant at trial. A jury convicted defendant of: first-

degree murder as an accomplice, N.J.S.A. 2C:11-3(a)(1) and (2);

first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(2)

and N.J.S.A. 2C:11-3(a)(1); two counts of second-degree possession

of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); two

counts of second degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b); fourth-degree possession of hollow-nosed bullets,

N.J.S.A. 2C:39-3(f)(1); second-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a); fourth-degree child abuse, N.J.S.A.

9:6-1 and N.J.S.A. 9:6-3; and third-degree hindering apprehension

or prosecution, N.J.S.A. 39-3(b)(4).

After appropriate mergers, Judge Robert J. Gilson sentenced

defendant on the murder conviction to life imprisonment with sixty-

three years and nine months of parole ineligibility under the No

Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed

concurrent sentences on the remaining weapons offenses, a

consecutive seven-year term with two years of parole ineligibility

on the endangering conviction, and a consecutive three-year term

on the hindering conviction.1

1
The judge dismissed the child abuse conviction, reasoning it was
a lesser-included offense of the endangering conviction.

2 A-5029-14T4
 Before us, defendant raises the following points on appeal:

POINT ONE

THE TRIAL COURT ERRED IN REFUSING TO DISMISS
THE INDICTMENT.

POINT TWO

THE TRIAL COURT ERRED IN GRANTING THE STATE'S
MOTION PURSUANT TO N.J.R.E. 104 TO ADMIT
DEFENDANT'S ALLEGED STATEMENTS MADE TO MEMBERS
OF LAW ENFORCEMENT.

POINT THREE

THE COURT'S PRE-TRIAL RULING ON SEPTEMBER
[30], 2014[,] ALLOWED THE POSSIBILITY OF THE
STATE INTRODUCING PREJUDICIAL POST-INCIDENT
LETTERS WHICH HAD A CHILLING EFFECT.

POINT FOUR

THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL
EVIDENCE BY THE RULING ON THE N.J.R.E. 404(B)
MOTION ON APRIL 30, 2014.

POINT FIVE

THE STATE IMPROPERLY ATTACKED DEFENSE EXPERT
DR. [STUART] ON HIS FEES EARNED IN UNRELATED
CASES.

POINT SIX

THE DEFENDANT'S SENTENCE WAS EXCESSIVE AND DID
NOT MEET UNIFORMITY GUIDELINES.

In a supplemental pro se brief, defendant argues:

POINT I

THE TRIAL COURT ERRED IN REFUSING TO DISMISS
THE INDICTMENT.

3 A-5029-14T4
 A) PREJUDICIAL MEDIA COVERAGE

B) LACK OF TESTIMONIAL EVIDENCE

C) EXCULPATORY EVIDENCE NOT
PRESENTED

D) DISMISSAL OF WEAPONS CHARGES

POINT II

THE TRIAL COURT ERRED IN GRANTING THE STATE'S
MOTION PURSUANT TO RULE 104 TO ADMIT
DEFENDANT'S ALLEGED STATEMENTS TO LAW
ENFORCEMENT.

POINT III

THE TRIAL COURT'S PRE-TRIAL RULING ON
SEPTEMBER 30, 2014[,] ALLOWED THE POSSIBILITY
OF THE STATE INTRODUCING PREJUDICIAL, POST-
INCIDENT LETTERS WHICH HAD A CHILLING EFFECT.

POINT IV

THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL
EVIDENCE BY THE RULING ON THE 404(B) MOTION
ON APRIL 30, 2014.

POINT V

THE STATE IMPROPERLY ATTACKED A DEFENSE EXPERT
DR. STEWART [SIC] ON THE AMOUNT OF FEES EARNED
IN UNRELATED CASES.

POINT VI

DEFENDANT'S SENTENCE WAS EXCESSIVE AND DID NOT
MEET UNIFORMITY GUIDELINES.

We have considered these arguments in light of the record and

applicable legal standards. We affirm.

4 A-5029-14T4
 I.

On August 16, 2011, defendant, Noorani and their two young

sons were visiting Noorani's family in Boonton to celebrate the

end of Ramadan. After sunset, defendant and Noorani went for a

walk, with defendant pushing their youngest son in a stroller.

Pursuant to an elaborate scheme hatched months earlier, Stephen

lay in wait, armed with two different handguns. She approached,

shot and killed Noorani, then shot and wounded defendant to make

it appear as if the assault were a robbery.

Law enforcement officers and emergency medical technicians

arrived and rendered assistance to defendant, who was screaming

in pain, having been shot in the wrist, leg, shoulder, and

buttocks. Defendant gave conflicting descriptions of his

assailants, their number and what they said during the attack to

Sergeant Richard Vnencak of the Boonton Police Department and

Detective Sergeant Thomas Lesiak of the Parsippany-Troy Hills

Police Department. At the hospital, defendant provided two

recorded statements to Detective Matthew Potter of the Morris

County Prosecutor's Office, consented to Potter's search of his

cellphone, and admitted to having an extramarital affair for six

years with a woman other than Stephen.

Captain Jeffrey Paul of the Prosecutor's Office arrived at

the hospital and questioned defendant further. When defendant

5 A-5029-14T4
told Paul that what had occurred was "an accident," and he never

intended the result, Paul stopped the interview and administered

Miranda2 rights to defendant. Defendant was admitted to the

hospital, and Paul took nine additional recorded statements from

him, some initiated by defendant's request to continue speaking

with Paul. Before some, defendant spoke to family members. In

each instance, defendant either acknowledged that he had received

Miranda rights earlier and waived his right to remain silent, or

waived his Miranda rights after they were re-administered.

Defendant admitted that he had a long-standing affair with an

unnamed woman and that he planned his wife's murder with a male

friend.

Judge Gilson conducted a pretrial hearing regarding the

admissibility of defendant's statements pursuant to N.J.R.E.

104(c). Vnencak, Lesiak, Potter, Paul, and Morris County

Prosecutor's Office Detective Harrison Dillard testified.

Defendant called two witnesses. Officer Brian Ahern of the Morris

County Sheriff's Department testified regarding the gunshot

residue test he performed on defendant's hands in the early morning

of August 17. Lieutenant Stephen Wilson of the Morris County

2
Miranda v. Arizona, 384 U.S. 436 (1966).

6 A-5029-14T4
Prosecutor's Office testified that he had directed Potter to obtain

defendant's consent to search his cell phone.

As explained in his comprehensive written decision, Judge

Gilson found the officers who had initially spoken to defendant

at the scene and in the hospital "credibly testified that they

viewed [him] as a victim" and were attempting to gather information

about "the alleged shooters." After considering the totality of

the circumstances, the judge found that defendant "was not in

custody or subject to custodial interrogation at the shooting

scene, or while he was transported to the hospital, or for several

hours at the hospital." Judge Gilson determined that defendant

was in custody when Paul administered Miranda rights "some time

after 3:30 a.m. on August 17, 2011."

Judge Gilson also found that despite having been shot four

times, defendant's wounds were not life threatening and he remained

alert during all interviews. The judge listened to the audio

recordings and concluded defendant understood and answered the

officers' questions "with clear comprehension." The judge

concluded

all statements made by [d]efendant to law
enforcement officers up to and including the
first interview conducted by [Captain] Paul,
were made at a time when [d]efendant was not
in custody. Towards the end of [Captain]
Paul's first interview, [Captain] Paul advised
[d]efendant of his Miranda rights and

7 A-5029-14T4
 [d]efendant freely and knowingly waived those
rights. Thereafter, when [d]efendant twice
invoked his rights, the interviews . . .
ended, but later [d]efendant reinitiated the
communications.

Judge Gilson entered an order permitting the State to introduce

evidence of defendant's statements to Vnencak, Lesiak, Potter and

Paul, and to play the audio recordings for the jury, subject to

appropriate edits and redactions.

Defendant argues the State failed to prove beyond a reasonable

doubt that he knowingly and voluntarily waived his right to remain

silent. He contends that he was in custody before Paul

administered Miranda rights for the first time, and that the

officers failed to stop questioning him when he invoked his right

to remain silent and failed to re-administer Miranda warnings as

necessary.

"Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State

v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J.

224, 243 (2007)). "Because legal issues do not implicate the

fact-finding expertise of the trial courts, appellate courts

construe the Constitution, statutes, and common law 'de novo --

with fresh eyes -- owing no deference to the interpretive

8 A-5029-14T4
conclusions' of trial courts, 'unless persuaded by their

reasoning.'" State v. S.S., 229 N.J. 360, 380 (2017) (quoting

State v. Morrison, 227 N.J. 295, 308 (2016) (citations omitted)).

"[T]he protections provided by Miranda are only invoked when

a person is both in custody and subjected to police interrogation."

Hubbard, 222 N.J. at 266 (citing State v. P.Z., 152 N.J. 86, 102

(1997)). "The critical determinant of custody is whether there

has been a significant deprivation of the suspect's freedom of

action based on the objective circumstances, including the time

and place of the interrogation, the status of the interrogator,

the status of the suspect, and other such factors." P.Z., 152

N.J. at 103 (emphasis added). "If the questioning is simply part

of an investigation and is not targeted at the individual because

she or he is a suspect, the rights provided by Miranda are not

implicated." State v. Timmendequas, 161 N.J. 515, 614-15 (1999).

See also State v. Melendez, 423 N.J. Super. 1, 24 (App. Div. 2011)

(quoting State v. O'Neal, 190 N.J. 601, 618 (2007)) (Miranda

warnings are not required prior to questioning if there is "an

objectively reasonable need to protect the police or public from

any immediate danger associated with a weapon.").

When a suspect unambiguously asserts his right to remain

silent, all questioning must stop. S.S., 229 N.J. at 382. Our

jurisprudence, however, has extended greater protection. "[U]nder

9 A-5029-14T4
our state law privilege against self-incrimination, 'a request,

however ambiguous, to terminate questioning . . . must be

diligently honored.'" Ibid. (quoting State v. Bey (Bey II), 112

N.J. 123, 142 (1988)). Once a suspect has asserted his right to

remain silent, "[i]n the absence of . . . renewed warnings any

inculpatory statement given in response to police-initiated

custodial interrogation . . . is inadmissible." State v. Hartley,

103 N.J. 252, 256 (1986) (emphasis added). "That rule, however,

does not apply if the defendant initiates a dialogue about the

crime." State v. Harvey, 151 N.J. 117, 222 (1997).

In this case, Judge Gilson concluded the initial questions

posed to defendant by Vnencak, Lesiak, Potter and Paul were

attempts to investigate the shooting in which defendant was himself

a victim. Only when defendant intimated his involvement was more

nefarious did his status change to that of suspect. At that point,

police administered Miranda warnings before asking further

questions.

Judge Gilson carefully reviewed the events that transpired

before each recorded statement. He essentially concluded, and we

concur, that police stopped questioning defendant whenever he

invoked his right to remain silent, began questioning him again

when he indicated a desire to continue speaking, and re-

administered Miranda rights to defendant as necessary.

10 A-5029-14T4
 Defendant notes that the officers who testified admittedly

never spoke to any medical personnel before interrogating him. He

contends the judge failed to consider the effects of defendant's

physical injuries and the medical treatment he was receiving at

the time in deciding whether his statements were voluntary. We

again disagree.

Even when Miranda warnings are properly administered, "the

State bears the burden of proving beyond a reasonable doubt that

a defendant's confession is voluntary and not resultant from

actions by law enforcement officers that overbore the will of a

defendant." Hubbard, 222 N.J. at 267 (citing State v. Hreha, 217

N.J. 368, 383 (2014); State v. Galloway, 133 N.J. 631, 654 (1993)).

"Determining whether the State has met that burden requires a

court to assess 'the totality of the circumstances, including both

the characteristics of the defendant and the nature of the

interrogation.'" Hreha, 217 N.J. at 383 (quoting Galloway, 133

N.J. at 654).

Here, Judge Gilson listened to the audio recordings. He

credited the officers' testimony that defendant was not confused

and remained calm and cooperative. We disagree with the implicit

assertion that the judge was unable to assess the voluntariness

of defendant's statements without expert medical testimony. We

11 A-5029-14T4
affirm the judge's order admitting defendant's statements as

evidence at trial.3

II.

A.

We turn to asserted trial errors. The State moved pretrial

to introduce evidence of uncharged "bad acts" committed by

defendant, see N.J.R.E. 404(b); State v. Foglia, 415 N.J. Super.

106, 122-23 (App. Div. 2010) (N.J.R.E. 404(b) applies to "bad

conduct" evidence, even if not criminal), arguing the evidence was

probative of defendant's motive and intent to conspire with Stephen

to murder Noorani. Judge Gilson conducted a Rule 104 hearing at

which the State called numerous witnesses, and entered an order

granting in part and denying in part the State's application. In

particular, the judge permitted the State to introduce:

(1) certain internet messages between defendant and Stephen's

sister in which he asked her to purchase poison for him while she

was visiting India; and (2) twenty-five emails recovered from

3
In his pro se brief, defendant asserts trial counsel provided
ineffective assistance by failing to present any expert medical
testimony at the N.J.R.E. 104 hearing. We choose not to address
the issue, leaving it for defendant to assert if he seeks post-
conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

12 A-5029-14T4
defendant's computer, in which he asked avowed practitioners of

voodoo or black magic to cast spells on his wife.4

In his written decision that followed the hearing, the judge

applied the four-prong Cofield test used to determine

admissibility of bad conduct evidence under Rule 404(b):

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;

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.

[State v. Cofield, 127 N.J. 328, 338 (1992)
(citation omitted).]

The judge allowed the State to introduce "the retrieved internet

communications [with Stephen's sister]," but limited the sister's

testimony to "[d]efendant's statement as opposed to

characterization of the communications."

Additionally, the judge found the emails recovered from

defendant's computer sent to voodoo and black magic websites were

both relevant and reliable. The judge explained:

Those e-mails, which are in [d]efendant's own
words, show his desire to be rid of his wife
through any means, including her death.

4
The appeal challenges only the 404(b) evidence admitted by these
two rulings.

13 A-5029-14T4
 Accordingly, the e-mails are highly relevant.
The e-mails are also sufficiently reliable to
be presented to a jury. Defendant has not
disputed that these e-mails are authentic e-
mails that he sent. Moreover, the e-mails
were all recovered from Defendant's computer.

Judge Gilson reasoned the "key issue" was "whether the e-mails

[were] more prejudicial than probative." After carefully

considering the fourth prong of the Cofield test, the judge

concluded:

On balance, . . . the e-mails are not more
prejudicial than probative. Defendant has
denied he conspired to kill his wife, and his
motive and intent are critical issues in the
case. These emails [sic] go directly to
[d]efendant's motive and intent.
Significantly, they are [d]efendant's own
communications, in his own words. While
[d]efendant has argued that the emails are
prejudicial, given that they are [d]efendant's
own emails, they are not more prejudicial than
probative. Moreover, the jury will be given
instructions to only consider the e-mails as
they go to motive and intent.

Before us, defendant tersely argues Judge Gilson erred in

admitting this evidence, which was "extremely prejudicial" and

"unrelated to the crime."5 The argument lacks sufficient merit to

5
In his pro se supplemental brief, defendant argues the emails he
sent to the websites were privileged pursuant to N.J.R.E. 511, the
cleric-penitent privilege, and protected by the First Amendment.
Defendant never raised this argument in the trial court, and so
it is not properly before us on appeal. State v. Witt, 223 N.J.
409, 419 (2015). Nevertheless, the argument lacks any merit.
(footnote continued next page)

14 A-5029-14T4
warrant discussion in a written opinion. R. 2:10-2(e)(2). We

note only that the decision to admit or exclude evidence under

Rule 404(b) rests in the sound discretion of the trial court, to

which we accord "great deference" and reverse "only in light of a

clear error of judgment." State v. Gillispie, 208 N.J. 59, 84

(2011) (citation omitted). Judge Gilson did not mistakenly

exercise his discretion, and we affirm for the reasons stated in

his written opinion.

B.

While in jail awaiting trial, defendant wrote nineteen

letters to Stephen, who was also in custody. Based upon that

correspondence and communications defendant had with another

inmate, Michael Brown, a grand jury returned two indictments

(footnote continued)

Because testimonial privileges 'undermine the search for
truth in the administration of justice,'" we construe them
narrowly, State v. J.G., 201 N.J. 369, 383 (2010) (quoting State
v. Williams, 184 N.J. 432, 444 (2005)), and the party asserting
the privilege has the burden of demonstrating it applies. Horon
Holding Corp. v. McKenzie, 341 N.J. Super. 117, 125 (App. Div.
2001). For the privilege to apply, the communication must be
made: "(1) in confidence; (2) to a cleric; and (3) to the cleric
in his or her professional character or role as a spiritual
advisor." J.G., 201 N.J. at 383-84 (quoting State v. Cary, 331
N.J. Super. 236, 244 (App. Div. 2000)). Having never made the
argument before Judge Gilson, defendant certainly failed to carry
his burden. Moreover, there is no support for the claim that
defendant's emails to a public website were made with any
expectation of confidentiality.

15 A-5029-14T4
against defendant alleging witness tampering, N.J.S.A. 2C:28-5(a),

and the attempted murder of Noorani's family members and

defendant's former paramour. The State sought to join these

indictments with the indictment charging defendant with Noorani's

murder.

Judge Gilson denied the joinder motion, concluding "the

prejudicial impact of the State's evidence would outweigh its

probative value" and confuse the jury. He explained that the

jailhouse letters would be prejudicially cumulative, because there

was "adequate alternative evidence" of defendant's involvement in

Noorani's murder, particularly in light of Stephen's agreement to

testify against him.

However, in his written decision, the judge specifically

declined to address whether the State could introduce the evidence

under N.J.R.E. 404(b). Noting there was no motion before the

court, Judge Gilson stated:

One of the principal concerns regarding
joinder of the Indictments is the high degree
of confusion in using the letters for
different purposes in a joint trial. That
confusion would not be present if some of the
letters were used to show consciousness of
guilt or intent to conspire to commit murder.
Moreover, under Rule 404(b), those letters
could be "sanitized" and more narrowly
tailored and thereby avoid the possibility of
confusion and prejudice to the Defendant.

16 A-5029-14T4
 It should be further noticed that the
Court may need to wait until the trial of this
matter has begun before it can appropriately
determine the use of the alleged witness
tampering letters under Rule 404(b). . . .

Finally, nothing in this opinion or the
accompanying Order should be read to preclude
the State from making an appropriate motion
at trial to use the letters in redirect or
rebuttal if Defense counsel opens such a door
in the questioning of Antoinette Stephen.

The State never moved before trial to admit the evidence under

N.J.R.E. 404(b). Nonetheless, defendant argues the judge's

opinion "acted as a 'sword of Damocles,'" chilling defense

counsel's cross-examination and summation. The argument not only

ignores the trial record but also rests upon a faulty legal

premise.

The prosecutor attempted on several occasions to admit the

letters into evidence, arguing that defense counsel had opened the

door during his cross-examination of Stephen and her sister. Judge

Gilson denied those requests. Nothing Judge Gilson said in

colloquy with counsel about the possible re-opening of the case

if defense counsel strayed in summation from prior rulings was

prejudicial, and, indeed, the prosecutor did not object during

defense counsel's summation.

Moreover, the premise of defendant's entire argument is that

admitting the letters into evidence under any circumstances would

17 A-5029-14T4
have been reversible error. We disagree with that assumption as

a matter of law. As Judge Gilson noted, the letters were highly

probative and, had the State moved pretrial, some of them likely

and properly would have been admitted to prove motive and intent.

Defendant can hardly claim reversible error when this very damning

evidence was kept entirely from the jury.

C.

Defendant called Dr. William Allen Stuart as an expert in

emergency medicine. Dr. Stuart had reviewed defendant's hospital

records and police reports, but he never interviewed defendant.

It was the doctor's opinion that given the medication administered

at the hospital, defendant would have been asleep when Captain

Paul interviewed defendant in an unrecorded conversation. Dr.

Stuart also opined that other medication given to defendant makes

patients susceptible to suggestion and unable to exercise critical

judgment. During cross-examination, Dr. Stuart acknowledged that

he testified predominantly for defense counsel, had collected tens

of thousands of dollars in fees every year from 2011 through 2014,

and was charging defendant $2000 for the time spent testifying in

this case.

Defendant argues the judge erred by permitting the prosecutor

to cross-examine the doctor about the fees he earned in unrelated

cases. We find no reversible error.

18 A-5029-14T4
 "[O]rdinarily, the scope of cross-examination of a witness

rests in the discretion of the trial judge. An appellate court

will not interfere with the exercise of such discretion unless

clear error and prejudice are shown." State v. Adames, 409 N.J.

Super. 40, 61 (App. Div. 2009) (quoting Glenpointe Assocs. v. Twp.

of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)).

"The bases on which an expert relies when rendering an opinion

are a valid subject of cross-examination." State v. Jenewicz, 193

N.J. 440, 466 (2008). Moreover, historically, the jury may

consider the expert's fee as a factor possibly affecting

credibility. State v. Smith, 167 N.J. 158, 189 (2001); see also

Model Jury Charges (Criminal), "Optional Charge Concerning

Compensation of Experts" (approved Oct. 1, 2001) (adopted to

address the Court's concern in Smith, 167 N.J. at 189, that the

then-current jury charge was inadequate). However, the prosecutor

may not denigrate the expert or imply the fees tainted his

testimony or that the expert offered testimony contrived with

defense counsel's assistance. Smith, 167 N.J. at 184-85; see also

State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002)

(prosecutor's summation made "evidentially unsupported assertions

that the experts had sold their integrity for their witness fees").

Here, defense counsel first introduced the subject of Dr.

Stuart's fee on direct examination. The prosecutor's summation

19 A-5029-14T4
criticized the doctor's opinions based upon his failure to

interview defendant or listen to the audio recordings. He made

one fleeting comment regarding the doctor's fees, calling him "a

professional witness." Additionally, Judge Gilson provided the

Model Jury Charge at the end of the case, which focused the jurors'

attention on the proper import of this evidence. Under these

circumstances, the prosecutor's cross-examination and summation

comments were not reversible error.

III.

At sentencing, Judge Gilson found aggravating factors three

and nine applied to all counts for which defendant was convicted.

See N.J.S.A. 2C:44-1(a)(3) (the risk defendant will re-offend);

N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others).

He also found aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the

gravity and seriousness of harm to the victim), only as to the

child endangerment conviction, rejecting its application and

application of aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the

nature and circumstances of the offenses and defendant's role),

to all other counts to avoid "double counting." See State v.

Fuentes, 217 N.J. 57, 74-75 (2014) (an element of the offense may

not be used as an aggravating sentencing factor to increase

punishment).

20 A-5029-14T4
 The judge applied mitigating factor seven. N.J.S.A. 2C:44-

1(b)(7) (defendant's lack of criminal history). He fully explained

why he rejected other mitigating factors urged by defense counsel.

Judge Gilson considered the factors cited by the Court in State

v. Yarbough, 100 N.J. 627, 643-44 (1985), in deciding to impose

certain consecutive sentences.

Defendant argues the sentence was excessive. He claims that

the judge mistakenly considered and weighed the aggravating and

mitigating factors, and that the sentence was impermissibly

disparate to the one imposed on Stephen. We reject these

arguments.6

"Appellate review of sentencing is deferential, and

appellate courts are cautioned not to substitute their judgment

for those of our sentencing courts." State v. Case, 220 N.J.

49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606

(2013)). Generally, we only determine whether:

(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

6
Defendant also argues the Pre-Sentence Investigation (PSI) report
contained objectionable opinions of the probation officer who
interviewed defendant regarding defendant's lack of remorse. The
argument lacks sufficient merit to warrant discussion. R. 2:11-
3(e)(2). It suffices to say that Judge Gilson's thorough oral
opinion demonstrates a considered evaluation of the evidence, as
well as the judge's own independently reached conclusions
regarding the level of defendant's remorse.

21 A-5029-14T4
 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."

[Fuentes, 217 N.J. at 70 (alteration in
original) (quoting State v. Roth, 95 N.J. 334,
364-65, (1984)).]

Defendant specifically argues the judge erred in finding

aggravating factor three, and in failing to find mitigating factors

eight, (the defendant's conduct was the result of circumstances

unlikely to recur); nine (the defendant's character and attitude

indicate unlikeliness to commit another offense); and twelve (the

defendant was willing to cooperate with law enforcement

authorities). See N.J.S.A. 2C:44-1(b)(8), (9), and (12).

As to aggravating factor three, Judge Gilson recognized

defendant had no prior involvement with the criminal justice

system, however, he noted defendant would rather kill his wife

than go through divorce proceedings. The judge found defendant's

disregard for the law made it likely he would re-offend if

necessary to avoid a difficult situation. As to the mitigating

factors, it suffices to say that Judge Gilson addressed each one,

and we find no reason to disturb his findings as to any. See

Case, 220 N.J. at 66 (explaining "the need for the sentencing

court to explain clearly why an aggravating or mitigating factor

22 A-5029-14T4
presented by the parties was found or rejected and how the factors

were balanced to arrive at the sentence").

Turning to the disparity argument, pursuant to the plea

bargain, in return for her cooperation, Stephen was to receive a

recommended sentence of thirty years imprisonment with thirty

years of parole ineligibility, the minimum sentence for murder. 7

See N.J.S.A. 2C:11-3(b)(1). Defendant contends that because

Stephen was the actual shooter, the life sentence imposed by Judge

Gilson should be set aside, and we should remand for resentencing.

We again disagree.

Even though "[d]isparity may invalidate an otherwise sound

and lawful sentence, . . . [a] sentence of one defendant not

otherwise excessive is not erroneous merely because a

co-defendant's sentence is lighter." State v. Roach, 146 N.J.

208, 232 (1996) (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. The court
should then inquire into the basis of the
sentences imposed on the other defendant. It
should further consider the length, terms, and
conditions of the sentence imposed on the
co-defendant. If the co-defendant is
sufficiently similar, the court must give the
sentence imposed on the co-defendant
substantive weight when sentencing the

7
Defendant's appellate brief actually misstates Stephen's
exposure as "thirty years flat."

23 A-5029-14T4
 defendant in order to avoid excessive
disparity.

[Id. at 233.]

Here, Stephen was not sentenced at the time of defendant's

sentencing hearing. Trial counsel's argument was not that any

sentence greater than that anticipated for Stephen was per se

disparate; rather, he argued that since Stephen fired the fatal

shots, defendant should receive no greater sentence than Stephen.

Under the circumstances, Judge Gilson's failure to specifically

address the issue is understandable. The appellate record contains

neither Stephens' judgment of conviction nor the PSI report

prepared in that case.

Although all these circumstances limit our review in the

fashion outlined by the Court in Roach, we assume arguendo that

Stephen received the sentence anticipated by the plea bargain and

conclude defendant's sentence was not impermissibly disparate.

Initially, we have repeatedly recognized that a

co-defendant's cooperation with law enforcement may justify

ostensible sentence disparity. State v. Williams, 317 N.J. Super.

149, 159 (App. Div. 1998); State v. Gonzalez, 223 N.J. Super. 377,

393 (App. Div. 1988). Additionally, our review of the trial

evidence makes it abundantly clear that defendant, not Stephen,

was the "mastermind" and intended beneficiary of the plot. The

24 A-5029-14T4
evidence also revealed that defendant repeatedly lied to and misled

Stephen about his family situation. Finally, Judge Gilson found

that defendant had consciously decided to place his own child's

life at risk and lacked remorse for his wife's brutal murder.

While sentence disparity exists in this case, the

circumstances and conduct of Stephens were not "identical or

substantially similar to [that of] defendant." Roach, 146 N.J.

at 233. The sentence imposed on defendant was lawful and

justified, and we affirm.

IV.

Defendant argues it was error to deny his pre-trial motion

to dismiss the indictment. He argues that the crimes garnered

extensive media coverage, and the prosecutor failed to adequately

ensure the grand jurors were free of taint and able to fairly

consider the evidence. He also contends the presentation lacked

sufficient "testimonial evidence" and consisted largely of

hearsay. Lastly, defendant claims the prosecutor failed to present

exculpatory evidence. None of these arguments is availing.

"The trial court's decision denying defendant's motion to

dismiss h[is] indictment is reviewed for abuse of discretion."

State v. Saavedra, 222 N.J. 39, 55 (2015) (citing State v. Hogan,

144 N.J. 216, 229 (1996)). "[B]ecause grand jury proceedings are

entitled to a presumption of validity," defendant bears the burden

25 A-5029-14T4
of demonstrating the prosecutor's conduct requires dismissal of

the indictment. State v. Francis, 191 N.J. 571, 587 (2007) (citing

State v. Engel, 249 N.J. Super. 336, 359 (App. Div. 1991)).

Undoubtedly, the prosecutor has an absolute duty to bring

potential bias or partiality on the part of a grand juror to the

attention of the assignment judge. State v. Murphy, 110 N.J. 20,

33 (1988). Before doing so, "the prosecutor may make a threshold

finding to determine if the facts as presented by the grand juror

have the potential for bias or interest." State v. Brown, 289

N.J. Super. 285, 291 (App. Div. 1996).

Judge Gilson carefully reviewed the prosecutor's inquiry of

the grand jurors before presenting any evidence on the first day

of the proceedings, as well as the additional questions and

cautionary instructions the prosecutor provided later that day and

on the second day of the presentation. The judge concluded the

prosecutor's conduct was more than adequate and "there was no

showing of even a possibility of bias or partiality." We agree.

Defendant next contends the evidence actually adduced before

the grand jury was largely hearsay elicited through leading

questions posed by the prosecutor. This is clearly so. However,

a grand jury may return an indictment based primarily upon hearsay

testimony or other evidence that would be inadmissible at trial.

See, e.g., State v. Tringali, 451 N.J. Super. 18, 26 (App. Div.

26 A-5029-14T4
2017). Moreover, "procedural irregularities in a grand jury

proceeding are rendered harmless where defendant is ultimately

found guilty by petit jury." State v. Warmbrun, 277 N.J. Super.

51, 60 (App. Div. 1994) (quoting State v. Ball, 268 N.J. Super.

72, 120 (App. Div. 1993)). Defendant's argument requires no

further discussion.

Lastly, defendant argues the prosecutor failed to present

exculpatory evidence to the grand jury, namely, the negative

results of a gunpowder residue test performed on defendant shortly

after the shooting, and documentary evidence that Stephen sent

money to defendant on multiple occasions. He argues this latter

evidence served to rebut the State's contention that defendant

sent money to Stephen shortly before the murder to facilitate the

crime.

In Hogan, 144 N.J. at 235, the Court held that prosecutors

generally have no duty to provide the grand jury with evidence

beneficial to a defendant. However, "in the rare case" when the

prosecutor's file contains "credible" evidence "that both directly

negates the guilt of the accused and is clearly exculpatory," the

evidence must be provided to the grand jury. Id. at 237.

Here, Judge Gilson concluded, and we agree, this evidence did

not directly negate defendant's guilt nor was it clearly

exculpatory. Moreover, a finding of guilt by a petit jury renders

27 A-5029-14T4
harmless any failure to present exculpatory evidence to the grand

jury. State v. Cook, 330 N.J. Super. 395, 411 (App. Div. 2000).

Affirmed.8

8
To the extent we have not otherwise addressed assertions made in
defendant's pro se filing, they lack sufficient merit to warrant
discussion, Rule 2:11-3(e)(2), or otherwise were never advanced
in the trial court. Witt, 223 N.J. at 419.

28 A-5029-14T4