STATE OF NEW JERSEY VS. FRANK L. AIGOTTI (15-06-0258, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-4443-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK L. AIGOTTI, a/k/a
FRANK L. AIGOTTI, JR.,
JAMES WILKE, MOORE
JAMES, JAMES MOORE,
and FRANK L. AIGOTT, JR.,

Defendant-Appellant.
___________________________

Argued telephonically March 24, 2020 –
Decided April 27, 2020

Before Judges Yannotti, Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 15-06-0258.

Ahmed J. Kassim, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Ahmed J. Kassim, of counsel and
on the briefs).
 Shaina Brenner, Assistant Prosecutor, argued the cause
for respondent (Francis A. Koch, Sussex County
Prosecutor, attorney; Shaina Brenner, of counsel and on
the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was tried before a jury and found guilty of first-degree robbery

and second-degree conspiracy to commit robbery. Defendant appeals from the

judgment of conviction (JOC) dated March 13, 2018. We affirm.

I.

On or about May 19, 2015, a Sussex County Grand Jury returned

Indictment No. 15-06-0258 charging defendant with first-degree robbery of

Lakeland Bank, by placing teller Donna O'Neill in fear of immediate bodily

injury, N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit

robbery and theft, N.J.S.A. 2C:5-2, 2C:15-1, 2C:20-3 (count three); third-degree

theft by unlawful taking, N.J.S.A. 2C:20-3 and 2C:2-6 (count four); and third-

degree credit card fraud, N.J.S.A. 2C:21-6(h) (counts six and seven).

Co-defendant Jacinda Moore was charged with defendant in counts three,

four, six, and seven. Moore was also charged with first-degree aiding defendant

in the commission of the robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two);

third-degree hindering the apprehension of defendant, N.J.S.A. 2C:29-3(a)

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(count five); third-degree unlawful possession of a controlled dangerous

substance (CDS) (heroin), N.J.S.A. 2C:35-10(a) (count eight); third-degree

unlawful possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count nine);

and third-degree theft, N.J.S.A. 2C:20-3(a) (count ten).

On November 15, 2016, the trial judge entered an order which, among

other things, denied without prejudice defendant's pro se motion to dismiss the

indictment based on an alleged violation of his right to a speedy trial. On that

date, the judge also entered an order granting defendant's motion to dismiss

counts one, two, three, five, and six.

The State thereafter moved to vacate the order of November 15, 2016 and

reinstate the dismissed counts. The State also moved to amend the charges in

count one and the related charges to state that, during the robbery, defendant had

placed one or more persons in fear of immediate bodily injury. The judge

granted the motions.

At a proceeding on March 1, 2017, the judge decided that the charges

against defendant and Moore would be severed. The State thereafter advised

the court that it would proceed only on counts one and three, and any reference

to theft in count three should be deleted.

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 II.

At the trial, testimony was presented which established that on the

morning of January 13, 2015, at approximately 11:35 a.m., O'Neill, Dawn

Keener, and Martina Styles were working at the Lakeland Bank on Route 23 in

Wantage. Two customers, Lynne Dyer and Benjamin Simmons, entered the

bank. After Simmons completed a transaction, he and Dyer were speaking with

the bank's employees when a person entered the bank and said, "Give me the

money." Dyer and Styles testified that the person was motioning in a way that

made it appear he might have a weapon in his pocket.

Simmons stated, "You've got to be kidding. This doesn't happen." The

person stepped closer and repeated, "Give me the money." Dyer and Simmons

backed away. Simmons raised his hands and put them flat on the counter

because he believed the man was armed.

O'Neill opened her teller drawer and handed the person money. He said,

"Give me more." She then provided the person with additional money. The

bank's employees estimated that the entire incident took less than one minute.

They locked the doors and called the police. They determined that the teller had

given defendant $1477.

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 Trooper Brad Cosh of the New Jersey State Police (NJSP) arrived on the

scene promptly and other law enforcement officers arrived later. Witnesses said

the perpetrator was wearing dark clothing with white sneakers and gloves. They

said he had his face covered except for his eyes, and appeared to have long, dark,

curly hair that could have been fake.

The bank's surveillance cameras recorded the incident. Surveillance video

footage from neighboring businesses depicted the individual fleeing the area of

the bank, crossing Route 23 to the southbound side, walking through a wooded

area near an abandoned house, heading south to Pond School Road, and entering

the trunk of a vehicle near a diner on Route 23.

Detective Steven Deckert of the NJSP identified the vehicle in the

surveillance footage as a silver Dodge Dart SE bearing a temporary New Jersey

registration. On January 19, 2015, Deckert went to Franklin Sussex Auto Mall

(FSAM) on Route 23 and obtained sales records for all Dodge Darts sold at that

location since 2013. Later, while stopped at a traffic light, Deckert observed a

white male driving a silver Dodge Dart. He pulled behind the vehicle and noted

the vehicle's temporary New Jersey vehicle registration number.

Deckert identified the registered owner of the car and found his name on

the list of purchasers that he had obtained from FSAM. Members of the NJSP

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met with a sales representative at FSAM, and she provided sales information,

which indicated that on December 18, 2014, the registered owner had purchased

the Dodge Dart. The sales representative said Moore co-signed the loan for the

purchase of the car. She said she is Moore's sister and Moore was in a

relationship with defendant.

On January 20, 2015, defendant was arrested at the Sussex County

courthouse for an unrelated matter. Thereafter, he was processed at the Sussex

County Correctional Facility and a corrections officer inventoried his property,

which included a cellphone and the keys to a Dodge vehicle.

Detective Thomas Laird of the Sussex County Prosecutor's Office (SCPO)

was informed of defendant's arrest. Laird obtained a search warrant and

retrieved defendant's phone. Laird thereafter conducted a forensic examination

of the calls and text messages on the phone. Laird's examination revealed that

on January 13, 2015, defendant sent a text message to a person stating he had

money to pay what he owed. The examination also revealed that Moore called

defendant at 11:21 a.m. on January 13, 2015.

Laird obtained a communications data warrant for defendant's and

Moore's phones, as well as their call-detail records. The records indicated that

defendant made several calls to Moore on January 13, 2015, including a call at

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11:38 a.m. that lasted more than fifteen minutes, and a call at 11:55 a.m. that

lasted more than five minutes. Laird also determined that Moore used her phone

for certain internet searches, including searches regarding the robbery at

Lakeland Bank.

On January 21, 2015, Laird conducted surveillance at a residence in

Wantage where defendant and Moore were living. He observed a 2015 Dodge

Dart parked in the driveway. Thereafter, a judge issued a warrant to search the

residence, and on January 29, 2015, Laird and other law enforcement officers

executed the warrant. Defendant and Moore were present at the time.

Detective Jared Cramer of the NJSP conducted a walkthrough of the

property. He observed a grey Dodge Dart parked in the driveway, with a

temporary registration tag from FSAM. The car was seized and taken to NJSP

headquarters in Totowa for processing. In the garage, Cramer recovered a black

work glove with yellow markings on the top with the letters "FG." Cramer then

searched the home. In the master bedroom, he found several items, including a

"Mossy Oak"-brand sweater, cellphones, and red sneakers.

Moore was transported to the NJSP barracks in Sussex County and

charged in connection with her role in the robbery. She was informed of and

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waived her Miranda rights.1 Laird then interviewed Moore and the interview

was recorded.

Moore stated that she and defendant had been dating since December 10,

2005, and that they had two children together. She received a phone call from

defendant shortly before 11:00 a.m. on January 13, 2015. During the phone call,

defendant stated he had several bills to pay including one to his attorney. On

the same day, at 11:39 a.m., defendant called and requested that she pick him up

near the diner on Route 23 because "people were after him." Defendant told her

he had robbed a bank.

Moore said she arrived at the location. Defendant was still on the phone

and told her to open the trunk of her vehicle. Moore observed defendant exit a

wooded area. She said defendant was wearing a wig, a blue and gray jogging

suit, and white sneakers. He was covering his face. He entered her vehicle’s

trunk.

Moore drove southbound on Route 23 and proceeded to Paterson, where

she stopped on a dead-end road that she knew did not have surveillance cameras.

Defendant exited the trunk and gave Moore between $400 and $600 to

purchase drugs.

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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 According to Moore, defendant changed his clothes and threw the clothes

he had been wearing into a garbage can. After Moore bought the drugs, she

rejoined defendant and they purchased red shoes so that he could dispose of his

white sneakers. They went to a Walmart in Riverdale and then returned to their

home in Wantage.

After he took Moore's statement, Laird obtained additional surveillance

footage from traffic cameras in Paterson, which showed the 2015 Dodge Dart

driving around the city on the date of the robbery. Laird also went to a shoe

store in Paterson and obtained video camera footage, which showed defendant

entering the store. He was wearing a dark-colored jacket and white sneakers.

Laird entered a nearby store and took a photo of a pair of red sneakers that

were sold in the store. The sneakers matched the sneakers that were recovered

from defendant's residence on January 29, 2015. Surveillance footage obtained

from the Walmart in Riverdale depicted the 2015 Dodge Dart driving through

the parking lot, and defendant and Moore entering the store from the main

entrance.

According to Laird, defendant was wearing a dark colored jacket and

bright red shoes. On the video footage from within the store, defendant is seen

purchasing various items, including a "Mossy Oak"-brand sweater. The store's

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surveillance footage also shows that defendant was wearing the same brand of

sweater when he exited the store.

The jury found defendant guilty of robbery and conspiracy to commit

robbery. Thereafter, the judge granted the State's motion to sentence defendant

to an extended term pursuant to N.J.S.A. 2C:44-3(a) as a persistent offender.

For the robbery, the judge sentenced defendant to a forty-year term of

incarceration, with an eighty-five percent period of parole ineligibility and five

years of parole supervision, pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to a concurrent ten-

year prison term for the conspiracy to commit robbery. The judge entered a JOC

dated March 13, 2018. This appeal followed.

Defendant's counsel has filed a brief in which he argues:

POINT I
DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED BY THE NEARLY THREE-YEAR
DELAY IN BRINGING HIM TO TRIAL.

POINT II
THE TRIAL COURT ERRED IN REINSTATING
COUNTS ONE, TWO, THREE, AND FIVE OF THE
INDICTMENT WITHOUT HAVING THE STATE
SEEK A SUPERSEDING INDICTMENT.

POINT III
THE TRIAL COURT ERRED IN PERMITTING THE
STATE TO REOPEN ITS CASE AND TO PLAY

A-4443-17T4
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 RECORDED CONVERSATIONS BETWEEN
[DEFENDANT] AND MOORE FOR THE JURY
BECAUSE THE CONVERSATIONS WERE
PREJUDICIAL AND THEIR ADMISSION
DEPRIVED [DEFENDANT] OF A FAIR TRIAL.

POINT IV
REVERSAL IS REQUIRED BECAUSE THE
STATE'S CASE WAS BOLSTERED BY
INADMISSIBLE OPINION TESTIMONY.

POINT V
THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT SENTENCED [DEFENDANT] AS A
PERSISTENT OFFENDER BASED ON FOURTH-
DEGREE CRIMES AND IMPOSED AN EXCESSIVE
SENTENCE.

Defendant has filed a pro se supplemental brief. He argues:

[POINT I]
THE STATE DID NOT HAVE THE RIGHT TO FILE
A MOTION FOR RECONSIDERATION AS THE
COURT RULE DOE[S] NOT ALLOW FOR
RECONSIDERATION IN CRIMINAL COURTS AND
THE COURT SHOULD HAVE DECLINED TO HEAR
SUCH A MOTION. ADDITIONALLY[,] THE
COURT'S ORIGINAL DECISION WAS THE
CORRECT ONE AND SHOULD HAVE BEEN LEFT
ALONE BECAUSE THE AMENDING OF THE
INDICTMENT IN THIS INSTANCE WAS
UNCONSTITUTIONAL. (Not Raised Below).

[POINT II]
PROSECUTORIAL MISCONDUCT AT [THE]
GRAND JURY, FAILURE TO CALL WITNESSES
OF THE CRIME, INSUFFICIENT EVIDENCE TO
SUPPORT THE FIRST-DEGREE ROBBERY

A-4443-17T4
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INDICTMENT AND CONVICTION, PERJURY BY
DETECTIVE LAIRD WHICH WAS CLEARLY
SUBORNED BY THE PROSECUTOR, AND
INADEQUATE JURY CHARGE FOR FIRST-
DEGREE ROBBERY. (Not Raised Below).

[POINT III]
INSOFAR AS THERE WAS AN IDENTIFIABLE
FACE ON THE VIDEO, THE JURY WAS JUST AS
WELL POSITIONED AS DETECTIVE LAIRD AND
[TROOPER C]OSH WERE TO DETERMINE (A) IF
IT WAS THE DEFENDANT IN THE SHOE STORE
VIDEO AND (B) IF THE ATM VIDEO SHOWED
THE GLOVE THAT THE STATE PRESENTED AS
EVIDENCE. (Not Raised Below).

[POINT IV]
DEFENDANT WAS THE VICTIM OF JUDICIAL
AND PROSECUTORIAL VINDICTIVENESS AS A
RESULT OF HI[S] HAVING SUCCESSFULLY
EXERCISED HIS CONSTITUTIONAL AND
PROCEDURAL RIGHTS IN THE 2010
PROSECUTION. THE COURT IGNORED
DEFENDANT'S MOTION SEEKING DISMISSAL
FOR SAME. (Not Raised Below).

[POINT V]
THE STATE NEEDLESSLY ELICITED
TESTIMONY FROM [THE] STATE'S MAIN
WITNESS JACINDA MOORE ABOUT DRUG USE
AND OTHER CRIMES EVIDENCE. (Not Raised
Below).

[POINT VI]
[DEFENDANT] FILED MANY PRO SE MOTIONS
WHICH WERE DENIED BY THE COURT. THEY
SHOULD HAVE BEEN TAKEN SERIOUSLY AND
GIVEN DUE WEIGHT, ESPECIALLY THE

A-4443-17T4
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 INTERPRETATION OF THE N.J.S.A. 2C:44-3(a)
MOTION. (Not Raised Below).

III.

We turn first to defendant's argument that his right to a speedy trial was

violated by the delay in bringing this matter to trial. Defendant argues that this

court should reverse his convictions and remand the matter with instructions to

dismiss the indictment. Alternatively, defendant argues that we should remand

the matter to the trial court for a full hearing and further consideration of his

speedy-trial claim.

The Sixth Amendment to the United States Constitution guarantees a

defendant's right to a speedy trial and that right is applied to the states by the

Due Process Clause of the Fourteenth Amendment. State v. Cahill, 213 N.J.

253, 264 (2013) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)).

In Barker v. Wingo, 407 U.S. 514, 530-33 (1972), the Court established a

balancing test to evaluate claims of violations of the right to a speedy trial.

In Barker, the Court identified four non-exclusive factors a court should

consider when evaluating a speedy-trial claim: length of the delay, reasons for

the delay, assertion of the right to a speedy trial by the defendant, and prejudice

to the defendant. 407 U.S. at 530-33. All four factors are not necessary or

sufficient "to the finding of a deprivation of the right of speedy trial. Rather,

A-4443-17T4
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they are related factors and must be considered together with such other

circumstances as may be relevant." Id. at 533.

Applying these factors, we are not convinced defendant was denied his

right to a speedy trial in this matter. The record shows that defendant was

arrested on January 29, 2015, and his trial did not begin until November 28,

2017. According to defendant, completion of discovery was delayed. The

record shows that this case involves an array of evidentiary materials that the

detectives gathered from various witnesses and sources. The evidence includes

surveillance videos, forensic examinations of phones, motor vehicle records, and

physical evidence. It also includes various witness statements. Defendant has

not shown that discovery was delayed unnecessarily, or that the delay was

entirely the State's fault.

Moreover, the parties devoted considerable time to motions, including

defendant's motion to dismiss the indictment, the State's motion to reinstate the

dismissed counts, the State's motion to disqualify counsel, and the State's motion

for leave to appeal the denial of its disqualification motion. Defendant contends

the State's motion to disqualify defense counsel was meritless and merely a

delaying tactic; however, the State appeared to have a legitimate concern that

counsel might be a witness at trial.

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 As noted, there was evidence that defendant owed his attorney money and

one of defendant's reasons for robbing the bank was to pay his attorney. It

appears that counsel had confirmed that defendant owed him money. At trial,

however, the assistant prosecutor informed the judge that the issue had been

resolved because counsel had "changed his position and said that money was not

owed." Defendant's contention that the State's motion to disqualify counsel was

merely a delay tactic is not supported by the record.

In addition, at the time these charges were pending, defendant faced

charges under at least four other indictments, and the State chose to try the oldest

case first. Other delays were attributable to the defense, the State, and the court.

The record does not support defendant's contention that the State deliberately

attempted to delay the trial in this matter.

We note that defendant did assert his right to a speedy trial when he filed

his pro se motions in May 2016. It appears that defendant's attorney did not

thereafter file a formal motion to assert defendant's right to a speedy trial

because the trial had been scheduled for June 6, 2017.

In any event, defendant has not shown he was prejudiced by the delays in

bringing this case to trial. He has not shown that the delays prejudiced his

defense. He also has not shown he was subjected to oppressive pretrial

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incarceration or suffered anxiety greater than the anxiety any defendant

experiences while incarcerated awaiting trial.

IV.

We next consider defendant's contention that the trial judge erred by

reinstating and amending counts one, two, three, five, and six of the indictment.

Defendant contends that by allowing the State to amend the indictment, the

judge violated his constitutional rights to indictment by a grand jury and notice

of the charges against him. We disagree. We are convinced that the trial judge

did not err by vacating the November 15, 2016 order, reinstating the dismissed

counts and allowing the State to amend the indictment.

Rule 3:7-4 provides that the court "may amend the indictment . . . to

correct an error in form or the description of the crime intended to be charged

. . . provided that the amendment does not charge another or different offense

from that alleged and the defendant will not be prejudiced thereby in his . . .

defense on the merits." Therefore, "[a]n error relating to the substance or

'essence' of an offense cannot be amended by operation of that rule." State v.

Dorn, 233 N.J. 81, 94 (2018). "[T]he analysis as to whether an indictment was

sufficient and whether an amendment under Rule 3:7-4 was appropriate hinges

upon whether the defendant was provided with adequate notice of the charges

A-4443-17T4
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and whether an amendment would prejudice defendant in the formulation of a

defense." Id. at 96.

Here, the judge initially dismissed counts one, two, three, five, and six of

the indictment because the State had not presented evidence to the grand jury

showing that O'Neill observed defendant simulating the possession of, or

intended use of, a deadly weapon. The judge also found that the State had not

presented the grand jury with any evidence that could support the conclusion

that O'Neill "was in fear of immediate bodily injury as a result of such

simulation."

The State thereafter moved for reinstatement of the dismissed counts and

leave to amend the indictment to indicate that other persons who were in the

bank at the time of the robbery had been placed in fear of immediate bodily

injury by defendant's simulation. The judge granted the State's motion.

Therefore, count one was amended to charge defendant with committing

the theft at Lakeland Bank, and in the course thereof, "put[ting] one (1) or more

persons in fear of immediate bodily injury in the course of committing a theft

specifically by acting in a manner consistent with having a deadly weapon in his

pocket while demanding money . . . ." The related charges were amended

accordingly, including count three, in which defendant was charged with

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conspiring with Moore to commit the robbery. As noted previously, the State

later chose to proceed only on counts one and three.

We are convinced the amendments to the indictment were permitted by

Rule 3:7-4. The amendments merely corrected an error in the description of the

offense and did not charge a new offense. Furthermore, defendant had adequate

notice of the charges. He was charged with committing the robbery by placing

persons in fear of immediate bodily injury, through his simulated use of a

weapon. Defendant has not shown that the amendments prejudiced his defense.

V.

Defendant argues that after the State rested its case, the trial judge erred

by allowing the State to reopen its case and play recordings of certain

conversations he had with Moore during his incarceration. He contends the

evidence was prejudicial and deprived him of a fair trial. We disagree.

"The conduct of a trial, civil or criminal, is in the hands of the judge."

State v. Menke, 25 N.J. 66, 70 (1957). The "[d]ecision as to whether to permit

the State to reopen after resting . . . must be allowed to rest in [the judge's]

discretion." Id. at 70-71.

When deciding whether to allow the State to reopen its case, the court

considers certain factors, including: (1) "whether the defendant had excused his

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witnesses who would have been used to rebut the new evidence offered, and had

called to the attention of the court the disadvantageous position in which the

State had placed him;" (2) "whether the prosecutor had deliberately withheld the

so-called additional evidence until that late stage of the trial;" (3) “the extent, if

any, to which the defendant suffered greater damage than would have been

imposed if the evidence had been offered at the proper time." Id. at 71. We

review the court's decision for abuse of discretion. Ibid.

Here, the record shows that the State moved to reopen its case before

defendant began to present his case. The State sought to present evidence that,

while he was incarcerated, defendant had been calling Moore utilizing other

inmates’ personal identification numbers. On November 29, 2017, the day

before she was scheduled to testify at trial, defendant called Moore to discuss

her upcoming testimony.

The judge permitted the State to reopen its case, relying on N.J.R.E. 608.

The judge found that the State did not deliberately withhold the evidence to

surprise defendant. The judge also found that if there was any prejudice to

defendant, it was "very, very” minor. The judge therefore allowed the State to

play recordings of defendant's conversations with Moore.

A-4443-17T4
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 We are convinced that the judge's decision was not a mistaken exercise of

discretion. Since defendant had not begun presenting his defense, he had not

excused any witnesses who could have rebutted this evidence. The record also

does not support defendant's contention that the State deliberately withheld this

evidence. Moreover, since the State apparently became aware of defendant’s

conversations with Moore after it rested its case, the State could not have offered

this evidence “at [a] proper time.” Menke, 25 N.J. at 71.

VI.

Defendant further argues that the trial judge erred by allowing the State to

present what he claims was inadmissible opinion testimony. He asserts the

surveillance video evidence was inconclusive and Moore lacked credibility as a

witness. He contends the State attempted to make up for those deficiencies by

allowing Cosh, Laird, and Deckert to narrate the surveillance-video footage,

despite a lack of personal knowledge by these witnesses. He argues that this

testimony improperly bolstered the State's case. Again, we disagree.

We note that defendant did not object to the testimony at trial. Therefore,

we must determine whether the judge erred by permitting the testimony and, if

so, whether the error is "of such a nature as to have been clearly capable of

producing an unjust result . . . ." R. 2:10-2. To warrant reversal of a conviction,

A-4443-17T4
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the error must be "sufficient to ‘raise a reasonable doubt . . . as to whether the

error led the jury to a result it otherwise might not have reached.’" State v.

Funderburg, 225 N.J. 66, 79 (2016) (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

Evidence Rule 701 states "[i]f a witness is not testifying as an expert, the

witness'[s] testimony in the form of opinions or inferences may be admitted if it

(a) is rationally based on the perception of the witness and (b) will assist in

understanding the witness'[s] testimony or in determining a fact in issue."

N.J.R.E. 701. "The central purpose of [Rule] 701 is to ensure that lay opinion

is based on a sufficient foundation, and not inadmissible hearsay." Rice v.

Miller, 455 N.J. Super. 90, 104 (App. Div. 2018). "[L]ay opinion testimony is

limited to what was directly perceived by the witness and may not rest on

otherwise inadmissible hearsay." State v. McLean, 205 N.J. 438, 460 (2011).

The courts "have established the boundary line that separates factual

testimony by police officers from permissible expert opinion testimony." Ibid.

"On one side of that line is fact testimony, through which an officer is permitted

to set forth what he or she perceived through one or more of the senses." Ibid.

Such fact testimony consists of "a description of what the officer did and saw,"

and is an "ordinary fact-based recitation by a witness with first-hand

A-4443-17T4
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knowledge." Ibid. "On the other side of the line . . . , experts, with appropriate

qualifications, [can] explain the implications of observed behaviors that would

otherwise fall outside the understanding of ordinary people on the jury." Ibid.

At trial, Cosh was shown surveillance footage and still photographs from

inside Lakeland Bank taken before and after the robbery. Cosh identified the

bank’s front entrance, the side of the bank facing Route 23 southbound, the

bank's drive-through lane, an aerial photo of the Route 23 area near the bank,

and the suspect fleeing the bank wearing certain clothing. He did not testify that

defendant was the suspect seen in the surveillance footage.

Deckert was shown surveillance footage from a camera at the diner on

Route 23. He identified a "lone subject" who entered the picture from a nearby

wooded area, walked towards the Pond School Road area, and then retraced his

or her steps. Deckert testified that the individual was seen approaching a vehicle

near Pond School Road and entering the trunk of the vehicle. The vehicle then

proceeded southbound on Route 23. Using a still photograph, Deckert identified

that vehicle as a Dodge Dart.

In his testimony, Laird stated that defendant was the person depicted in

the footage obtained from the shoe store in Paterson and the Walmart in

Riverdale. Laird testified that he had personal knowledge of defendant after

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having observed defendant in the Sussex County courthouse following his arrest.

Laird did not, however, state that defendant was the person seen in the bank

security footage. Laird said still photos depicted a "male departing from the

bank right after the bank robbery . . . ." He added that the male had "the same

clothing, [and] the same glove with a wad of cash in his hand."

We are convinced that the testimony of these three witnesses was

admissible under N.J.R.E. 701. Each witness provided factual observations

based on his personal review and observation of the surveillance videos or

photographs. Furthermore, based on their respective knowledge and experience,

each witness was able to assist the jury perform its fact-finding role. They were

able to explain the locations depicted and "the implications of observed

behaviors that would otherwise fall outside the understanding of ordinary people

on the jury." McLean, 205 N.J. at 460.

In arguing that the judge erred by allowing the testimony, defendant relies

on State v. Lazo, 209 N.J. 9 (2012). In that case, the Court concluded that it was

improper for a detective to opine that the defendant’s arrest photo closely

resembled a composite sketch of the suspect. Id. at 24. The Court stated that

"[t]he detective had not witnessed the crime and did not know the defendant; the

officer’s opinion stemmed entirely from the victim’s description.” Ibid.

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 Defendant's reliance upon Lazo is misplaced. As noted, Cosh and Deckert

did not identify defendant as the person seen in the surveillance videos or still

photos. Laird stated that defendant was the person seen in the video surveillance

obtained from the shoe store in Paterson and the Walmart in Riverdale, but Laird

had personal knowledge of defendant's appearance, having seen him in the

Sussex County courthouse after his arrest. Moreover, Laird did not identify

defendant as the person seen in the bank's surveillance footage, and he never

opined that defendant was the person who committed the robbery.

VII.

Defendant contends the judge erred by sentencing him to an extended term

as a "persistent offender," pursuant to N.J.S.A. 2C:44-3(a). The statute provides

that the court may impose an extended term of imprisonment if "[t]he defendant

has been convicted of a crime of the first, second or third degree and is a

persistent offender." Ibid. A "persistent offender" is defined as:

a person who at the time of the commission of the crime
is [twenty-one] years of age or over, who has been
previously convicted on at least two separate occasions
of two crimes, committed at different times, when he
was at least [eighteen] years of age, if the latest in time
of these crimes or the date of the defendant's last release
from confinement, whichever is later, is within [ten]
years of the date of the crime for which the defendant
is being sentenced.

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 [Ibid.]

As noted, the jury found defendant guilty of robbery and conspiracy to

commit robbery, which occurred on January 13, 2015. Defendant contends the

judge erred by considering crimes he committed in 2004 and 2005, which he

claims were outside the ten-year window established in N.J.S.A. 2C:44-3(a).

Those offenses were third-degree resisting arrest and third-degree witness

tampering, respectively.

Defendant was sentenced in June 2006 to an eighteen-month prison term.

Moreover, defendant was released from confinement within ten years of the date

of the offense for which he was being sentenced. Therefore, the judge did not

err by considering the offenses defendant committed in 2004 and 2005 in

determining if he was a persistent offender under N.J.S.A. 2C:44-3(a).

Defendant also argues that the judge erred by considering his convictions

of three fourth-degree offenses, which were committed within the ten-year

window under N.J.S.A. 2C:44-3(a). Defendant asserts it would be contrary to

the Legislature's intent to consider fourth-degree offenses in determining

whether he is a "persistent offender." Again, we disagree.

When interpreting a statute, we must "give effect to the intent of the

Legislature." State v. Harper, 229 N.J. 228, 237 (2017) (quoting State v.

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25
Morrison, 227 N.J. 295, 308 (2016)). In doing so, we begin our analysis with

the plain language of the statute and "[i]f it clearly reveals the Legislature's

intent, the inquiry is over." Ibid. (citing DiProspero v. Penn, 183 N.J. 477, 492

(2005)). We may not, under the guise of interpretation, "rewrite a statute or add

language that the Legislature omitted." State v. Munafo, 222 N.J. 480, 488

(2015) (citing DiProspero, 183 N.J. at 492).

The pertinent language of N.J.S.A. 2C:44-3(a) is clear and unambiguous.

It states that a defendant may be sentenced to an extended term if the defendant

"has been previously convicted on at least two separate occasions of two crimes,

committed at different times . . . ." N.J.S.A. 2C:44-3(a) (emphasis added). The

statute therefore allows the court to consider any "crimes" and does not exclude

fourth-degree offenses.

Defendant argues, however, that fourth-degree offenses should not be

considered for purposes of determining whether an extended term may be

imposed under N.J.S.A. 2C:44-3(a) because fourth-degree offenses are not

considered in sentencing under the Persistent Offenders Accountability Act,

N.J.S.A. 2C:43-7.1, which is commonly known as the "Three Strikes" law.

The "Three Strikes" law provides, in part, that an extended term under

N.J.S.A. 2C:43-7 may be imposed when a person is convicted of at least three

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specified second- or third-degree offenses. N.J.S.A. 2C:43-7.1(b)(1). However,

N.J.S.A. 2C:44-3(a) and the "Three Strikes" law are separate and distinct

sentencing schemes.

The "Three Strikes" law does not allow for the consideration of fourth-

degree offenses, whereas N.J.S.A. 2C:44-3(a) does not preclude consideration

of such crimes in determining if a defendant is a "persistent offender."

Therefore, the judge did not err by considering the fourth-degree offenses in

determining whether defendant was a "persistent offender" under N.J.S.A.

2C:44-3(a).

VIII.

In addition, defendant challenges his sentence. He contends the judge

erred by finding aggravating factor twelve. He also contends his sentence is

excessive when compared to the sentence imposed on Moore and another person

who testified at trial.

"An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). In reviewing a sentence, the court must determine whether: "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were . . . 'based upon competent credible evidence in the

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27
record;' [and] (3) 'the application of the guidelines to the facts' of the case

'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

"An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).

Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)

(risk defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)

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

of which he has been convicted); nine, N.J.S.A. 2C:44-1(a)(9) (need to deter

defendant and others from violating the law); and twelve, N.J.S.A. 2C:44-

1(a)(12) (offense was committed against a person defendant knew or should

have known was sixty years of age or older, or disabled). The judge also found

mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the

victim).

As stated previously, for the robbery, the judge sentenced defendant to

forty years in State prison, with an eighty-five percent period of parole

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ineligibility and five years of parole supervision, pursuant to NERA. For the

conspiracy to commit robbery, the judge sentenced defendant to a concurrent

ten-year term of incarceration. The judge ordered defendant to pay restitution

to the bank in the amount of $1477. The judge also imposed fines, fees, and

penalties.

Defendant argues that the judge erred by finding aggravating factor

twelve. He contends there was no specific evidence that any of the victims were

over the age of sixty years. However, Dyer testified that she was in the bank

when the robbery was committed. She said a person entered the bank, demanded

money, and "intimated he had a weapon." Dyer said she had been living in

Wantage for sixty years. Thus, there was a sufficient factual basis for the finding

of aggravating factor twelve.

Defendant further argues that his sentence is excessive when compared to

the sentence that Moore received. "[U]niformity [i]s one of the major sentencing

goals in the administration of criminal justice." State v. Roach, 146 N.J. 208,

231 (1996). A sentencing "[d]isparity may invalidate an otherwise sound and

lawful sentence." Id. at 232.

However, a defendant's sentence "is not erroneous merely because a co -

defendant's sentence is lighter." Ibid. (quoting State v. Hicks, 54 N.J. 390, 391

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(1969)). The court "must determine whether the co-defendant is identical or

substantially similar to the defendant regarding all relevant sentencing criteria.”

Id. at 233. The court must determine "whether the disparity is justifiable or

unjustifiable." Ibid.

Here, Moore faced charges related to the bank robbery and was charged

with other offenses. She pled guilty to second-degree robbery as an accomplice

and agreed to testify against defendant. She received a five-year Drug Court

sentence.

On the other hand, defendant was tried and found guilty of first-degree

robbery and second-degree conspiracy to commit robbery. He has an extensive

criminal record and was eligible for an extended term under N.J.S.A. 2C:44-

3(a). Defendant and Moore are not similarly situated with respect to the relevant

sentencing criteria, and the disparity between the sentences is justifiable.

Defendant also contends his sentence is excessive when compared to a

sentence imposed on Keven Puza, who testified for the State. Puza stated that

he robbed Lakeland Bank in 2014, pled guilty, and was sentenced to a five -year

term of incarceration, subject to NERA. However, Puza was not convicted of a

first-degree offense. Defendant and Puza are not similarly situated with respect

to the sentencing criteria. The different sentences are justifiable.

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 We therefore conclude that the record supports the judge's findings of

aggravating and mitigating factors and the sentence imposed is not an abuse of

discretion. We reject defendant's claim that his sentence is excessive or

disproportionate to the sentences imposed on Moore and Puza.

IX.

As noted, defendant has raised several additional arguments in his pro se

supplemental brief. These arguments are raised for the first time on appeal.

Defendant contends the trial court did not have authority under the court

rules to entertain the State's motion to reconsider the order of November 15,

2015, which dismissed certain counts of the indictment. Defendant argues that

the rules governing criminal proceedings do not permit motions for

reconsideration. This argument is patently without merit. See State v.

Timmendequas, 161 N.J. 515, 554 (1999) (noting that the Court "has never

questioned the appropriateness of interlocutory motions to reconsider in

criminal matters.").

Defendant also argues that the State engaged in prosecutorial misconduct

by only calling Laird before the grand jury, and by charging defendant with first-

degree robbery. He contends the State did not present sufficient evidence to the

grand jury to support the first-degree robbery charge. It is well-established,

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31
however, that a grand jury may return an indictment even if based primarily on

hearsay. State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987). The State

was not required to present the grand jury with testimony from persons who

witnessed the robbery. Moreover, there was sufficient evidence to support the

first-degree robbery charge.

Defendant further argues that the trial judge improperly admitted evidence

of other crimes, wrongs, or acts, specifically testimony by Moore regarding his

drug use. He also argues that the judge did not properly instruct the jury on the

limits to its use of this evidence. Again, we disagree.

Evidence of a person's "other crimes, wrongs, or acts" may not be admitted

"to prove the disposition of a person in order to show that such person acted in

conformity therewith." N.J.R.E. 404(b). However, the rule permits such

evidence to be admitted as "proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident when such matters

are relevant to a material issue in dispute." Ibid.

The evidence of defendant's drug use was properly admitted since it was

relevant to defendant's motive for committing the robbery. In addition, the judge

properly instructed the jury on its use of this evidence. The judge stated:

In this case, evidence has been presented with regard to
drug use by the defendant. This may be used for the

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 limited purpose of motive. Whether this evidence in
fact demonstrates motive is for you to decide. You may
decide that the evidence does not demonstrate motive
and is not helpful to you at all. In that case, you must
disregard the evidence. On the other hand, you may
decide that the evidence does demonstrate motive and
you may only use it for that specific limited purpose.
However, you may not use this evidence to decide that
the defendant has a tendency to commit crimes or that
he is a bad person.

Defendant further argues that he was a victim of judicial and prosecutorial

"vindictiveness" because he successfully exercised his constitutional rights in a

2010 prosecution and the trial court ignored his motion to dismiss the indictment

on this basis. The argument is meritless.

"The essence of the concept of prosecutorial vindictiveness is a violation

of due process by retaliating against a defendant for exercising a legal right."

State v. Gomez, 341 N.J. Super. 560, 571 (App. Div. 2001) (citing Blackledge

v. Perry, 417 U.S. 21, 27-28 (1974)). There is nothing in the record to support

defendant's claim that he was prosecuted for exercising a legal right.

Defendant also contends that: the prosecutor improperly permitted Laird

to present false testimony before the grand jury; the jury charge for the first-

degree robbery charge was inadequate; Laird and Cosh should not have been

permitted to testify as to what they observed in video recordings; and the trial

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court failed to take his pro se motions seriously. These arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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