NOT FOR PUBLICATION WITHOUT THE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)
A-4443-17T4
2
(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.
A-4443-17T4
3
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
A-4443-17T4
5
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
A-4443-17T4
6
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
A-4443-17T4
7
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).
A-4443-17T4
8
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
A-4443-17T4
9
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
10
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
13
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.
A-4443-17T4
14
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
A-4443-17T4
15
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
16
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
A-4443-17T4
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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
A-4443-17T4
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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
21
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
A-4443-17T4
22
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.
A-4443-17T4
23
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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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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