STATE OF NEW JERSEY VS. ZACHARY D. FLOWERS (15-12-0563, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-2891-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZACHARY D. FLOWERS,

Defendant-Appellant.

Submitted May 12, 2020 – Decided June 15, 2020

Before Judges Fisher and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 15-12-0563.

Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the briefs).

Richard T. Burke, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Tried to a jury, defendant Zachary D. Flowers was convicted of felony-

murder, armed robbery, conspiracy to commit robbery, and related weapons

offenses for his involvement in the shooting death of a gas station attendant.

Defendant was sentenced to an aggregate thirty-five-year prison term; he must

serve eighty-five percent of that term under the No Early Release Act, N.J.S.A.

2C:43-7.2. During the nine-day trial, the State presented the testimony of

twenty-five witnesses. But the case turned on defendant's words: six days after

the shooting, defendant gave a detailed confession to police; at trial defendant

recanted his post-arrest admissions, claiming they were a contrived attempt to

protect his friend, David Beagell. Evidence seized from defendant's home

corroborated the statement he gave to police; the prosecutor referenced that

evidence in his closing remarks.

Defendant now appeals, arguing:

POINT I

[]DEFENDANT'S RIGHTS WERE VIOLATED BY
THE PROSECUTOR'S USE AND RELIANCE ON . . .
DEFENDANT'S MOTHER'S STATEMENT MADE
DURING THE COURSE OF A POLICE
INVESTIGATION IMPLICATING . . . DEFENDANT
IN THE CRIME OF MURDER, EVEN THOUGH
DEFENDANT'S MOTHER DID NOT TESTIFY.

A. []Defendant's Right of Confrontation Was Violated.

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B. Putting Highly Prejudicial and Incriminating
Hearsay Statements before the Jurors in the Guise of
Cross-Examination Constitutes Egregious
Prosecutorial Misconduct.

POINT II

[]DEFENDANT WAS DENIED THE RIGHT TO
PRESENT A COMPLETE DEFENSE WHEN STATE
WITNESSES VIOLATED THE SEQUESTRATION
ORDER, UNDERMINING COUNSEL'S ABILITY TO
IMPEACH THEM BASED ON INCONSISTENCIES.

POINT III

THE VIDEO RECORDING OF DEFENDANT'S
STATEMENT SHOULD HAVE BEEN EXCLUDED
BECAUSE IT WAS "INDISCERNIBLE."
(Not raised below)
POINT IV

THE STATE FAILED TO PROVE THAT THE
WARRANTLESS SEARCH OF . . . DEFENDANT'S
BEDROOM WAS LAWFULLY AUTHORIZED BY A
THIRD[-]PARTY CONSENT SEARCH.

POINT V

THE STATE FAILED TO PROVE THAT THE
CONFESSION WAS GIVEN VOLUNTARILY AND
KNOWINGLY.

POINT VI

THE SENTENCE IS EXCESSIVE.

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 We reject the arguments challenging defendant's convictions, subject to a

remand for an evidentiary hearing on his motion to suppress evidence, and we

remand for resentencing without consideration of aggravating factor one,

N.J.S.A. 2C:44-1(a)(1). In doing so, we find insufficient merit in the arguments

raised in points II, III, and V to warrant extended discussion in a written opinion,

R. 2:11-3(e)(2), beyond the comments that follow. We focus instead on points

I, IV, and VI.

I.

Soon after midnight on January 5, 2012, police were dispatched to the BP

gas station in Phillipsburg, following a report that the attendant was lying on the

ground bleeding. Upon their arrival, officers saw Kismathdas Kasam lying in a

pool of blood. Kasam was unconscious with a gunshot wound to his right leg.

A shotgun-style ammunition "wad" lay on the ground nearby. Kasam's wedding

band was removed, cash was missing from the booth, and the wires leading to

the surveillance camera were severed. Medical efforts to save Kasam –

including amputation of his leg – were made in vain; Kasam died from the

gunshot wound two days later.

No one witnessed the crime, but police had some leads, including a

neighbor's description of two men she saw running from the scene. She told

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police the second man was carrying a shotgun. A police artist drew composite

sketches of the suspects based on her descriptions, but police never asked the

neighbor to identify a photograph of any suspects.

Within days of the incident, the police tip line also proved fruitful: a caller

told police defendant admitted to the caller's sister, Sara Warfle, and her

boyfriend, Jeremy Reed, that defendant was involved in the robbery. According

to Warfle's trial testimony, defendant called Reed, sounding "upset" and asked

whether he could come to Reed's home. When defendant arrived, he spoke with

Warfle and Reed together, and told them that he and Andy Torres went to the

BP gas station in Phillipsburg, intending to rob it; Torres went behind the

building and cut the wires to the surveillance system; Torres and the attendant

got into an argument; Torres shot the attendant in the leg with a shotgun; they

took money, then ran from the scene. Defendant also said Alexis Flowers 1 –

defendant's sister and Torres's girlfriend – drove them from the scene. Warfle

did not recall defendant mentioning Beagell was involved in the incident. Reed

1
Alexis, Torres, and Beagell were charged and convicted for their participation
in the incident; they did not testify against defendant at his trial; their judgments
of conviction were not provided to us on this appeal. We upheld Torres's
convictions following a jury trial before another judge, but remanded for
resentencing. See State v. Torres, No. A-2626-15 (App. Div. Mar. 4, 2019) (slip
op. at 1-32), certif. denied, 239 N.J. 259 (2019).

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essentially corroborated Warfle's testimony, adding defendant said Beagell was

with them.

Shortly after his conversation with defendant, Reed agreed to participate

in police-monitored text message communications with defendant. During their

exchange of several messages about the ongoing police investigation, Reed told

defendant print and television media had released sketches of the suspects. In

response to defendant's inquiry, Reed messaged defendant that one of the

sketches resembled defendant's "skin color, and his height, and everything

looked like him." Defendant instructed Reed to "erase all our messages."

Defendant thereafter messaged Reed:

Yeah, we're all good though. We were well equipped,
completely covered, mask, hoods, gloves, we were
ready for it. They don't got shit. None of those
witnesses would be credible in court. But we took out
the video surveillance an hour earlier so, yeah, I'm
good. Have faith in me.

On January 11, detectives assigned to the Warren County Prosecutor's

Office and the Allentown Police Department arrested Torres on an active

warrant, and seized a shotgun from the home he shared with Alexis in

Allentown, Pennsylvania. Detectives questioned Torres, Alexis and defendant,

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who implicated themselves, one another, and Beagell 2 in the incident.

Police also questioned Michelle Flowers, the mother of defendant and

Alexis, after learning her car was involved in the incident. Pertinent to this

appeal, Michelle told police defendant said "he was going down" for his

participation in the robbery, explaining: "he was crossing the street, he had the

money, he was running or whatever, and he turned back and saw [Kas am] fall

to the ground." Defendant told Michelle, "I can never go in the military now."

Michelle did not testify at defendant's trial.

After waiving his Miranda3 rights, defendant gave two detailed statements

to police, totaling nearly two hours in duration. Defendant initially told police

he planned the robbery with Torres and Alexis, then later acknowledged Beagell

"unwillingly" went along for the ride. Defendant claimed Beagell was unaware

Torres intended to bring his shotgun to the gas station; Beagell thought they

would be using defendant's BB gun, baton and taser. Defendant vehemently

denied Beagell was the shooter.

Defendant's video-recorded statements were played for the jury during the

State's case-in-chief. Defendant testified on his own behalf and recanted his

2
Beagell was arrested two weeks later. Torres, slip op. at 3.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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pre-trial admissions. He told the jury he lied to police because he was trying to

protect Beagell, whose role defendant said he assumed when he confessed to

Warfle, Reed, and the detectives.

Defendant testified that a few days after the incident, Beagell said he

participated in the robbery with Torres and Alexis and acknowledged Kasam

had been shot. Beagell "bugged" defendant to help him, so defendant agreed to

"take his role and make a story about how [defendant] was involved and

[Beagell] wasn't." Defendant said he practiced his story on Warfle and Reed,

finding it funny "to portray" himself to his friends in "a gangster kind of role."

Defendant claimed the lies he told to police were based on the details of the

robbery provided to him by Torres, Beagell, and Alexis, which he "was able to

coalesce into a story and then some of the stuff that [he] didn't know" he "winged

it with mixing in fact and fiction."

The jury deliberated for one day – including playback of defendant's post-

arrest statements – and returned a guilty verdict on all counts, except unlawful

possession of the BB gun. Following defendant's sentence, he filed this appeal.

II.

A warrantless search of defendant's bedroom resulted in the seizure of his

BB gun and baton, which corroborated his confession to police. Defendant and

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his two younger siblings lived in the home, which was located in Allentown and

owned by Michelle. Beagell and his girlfriend, Kirsten Piscitello, rented a

bedroom in the residence.

In point IV of his merits brief, defendant primarily argues the State failed

to satisfy its burden of proving the warrantless search of his bedroom was lawful,

and the trial court impermissibly shifted the burden to defendant to demonstrate

Michelle was not authorized to consent to the search of his room. Defendant

seeks reversal and a new trial; he does not argue the court should have held an

evidentiary hearing. Citing Pennsylvania case law, the State maintains "there

was absolutely no evidence presented" to counter Michelle's apparent authority

to grant consent. For the first time on appeal, the State alternatively argues the

seizure was authorized under the inevitable discovery doctrine. 4 Because it

appears from the record that issues of fact precluded a decision based only on

the submissions of the parties and oral argument, we remand for a testimonial

hearing.

4
Because the State did not advance the inevitable discovery exception to the
warrant requirement before the trial court, and we are remanding for a hearing
only as to the third-party consent exception, we decline to consider the State's
alternate argument on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).

A-2891-17T1
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 In reviewing a suppression ruling, we are mindful we must uphold a trial

court's factual findings, "regardless of whether the evidence is live testimony, a

videotaped statement, or documentary evidence" if they are supported by

sufficient credible evidence in the record. State v. S.N., 231 N.J. 497, 514

(2018) (citing State v. S.S., 229 N.J. 360, 379 (2017)). "We accord no deference,

however, to a trial court's interpretation of law, which we review de novo." State

v. Dunbar, 229 N.J. 521, 539 (2017).

In this case, however, no evidence was admitted at the hearing, which was

limited to oral argument following submission of the parties' briefs. Neither

party has supplied us with the motion and supporting or opposing papers that

were filed.5 As a result, we rely on the transcript of the proceedings and the

court's written decision, which summarized the parties' factual and legal

positions. Notably, there is no indication in the court's decision that the parties

stipulated to any facts concerning the search.

During oral argument, defense counsel framed the "crux of [his]

argument" as law enforcement's "awareness" and "knowledge" that Michelle's

home was not "a typical family situation" because Beagell and Piscitello rented

a bedroom in the home and police obtained consent from Piscitello before

5
Nor was the consent form signed by Michelle included on appeal.
A-2891-17T1
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searching the Beagell-Piscitello bedroom. Counsel argued Michelle's residence

was more akin to a rooming house than a family home and, as such, police

needed defendant's consent to search his bedroom. Counsel vacillated as to

whether an evidentiary hearing was necessary, eventually arguing: "I think it

would be impossible to deny . . . defendant's motion without . . . testimony and

without the police successfully trying to explain why" they requested consent

from Piscitello and not defendant "because what they did was seemingly

unconstitutional on its face."

In response, the prosecutor argued there were no material facts in dispute

to warrant a hearing. He asserted defendant did not dispute Michelle owned the

residence; was present when police entered the home; and "never stopped the

consent." The prosecutor told the court defendant did not dispute Beagell and

Piscitello paid rent to Michelle, adding: "And we know [defendant] was not

[paying rent]."

The prosecutor continued:

[T]here are no facts that have been given to Your Honor
to give any indication that [defendant] was paying rent,
that the door was locked, that his mother had no access
to that room, no one else had any access to that room
but [defendant], and in the absence of those facts the
law of Pennsylvania indicates that Michelle Flowers
had the apparent authority and the right to grant consent
[to a search] of that residence.

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The prosecutor further argued defense counsel failed to provide an affidavit

from Michelle or defendant disputing the State's facts. According to the

prosecutor, the motion was filed as a legal argument and "we're not taking

testimony regardless."

Following argument, the trial court issued a written decision, initially

finding "the outcome is the same whether applying New Jersey or Pennsylvania

law."6 The judge noted the absence of any evidence in the record that "defendant

was paying rent thereby giving him a legal expectation of privacy in his room."

Distinguishing the familial relationship between defendant and Michelle on the

one hand, and the landlord-tenant relationship among Michelle, Beagell and

Piscitello on the other, the court found "defendant is Michelle Flowers' son who

lives in her home and he does not pay rent. Accordingly, under New Jersey law,

Mrs. Flowers may validly consent to the search of . . . defendant's room in the

home that she owns." Citing New Jersey case law, the court elaborated:

There was no evidence proffered that . . . defendant had
previously objected to the search of his room, had a
lock on his room or any indication that his mother did
not possess common authority over the room in the

6
It appears the parties' trial briefs addressed whether New Jersey or
Pennsylvania law applied to the search of Michelle's home, located in
Allentown. At oral argument before the trial court, defense counsel seemingly
conceded Pennsylvania law governed; on appeal defendant argues New Jersey
law applies.
A-2891-17T1
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 home. Additionally, given the facts presented to this
[c]ourt the officers had a reasonable belief that . . .
Michelle Flowers had sufficient control over the
property to consent to its being searched, as she was the
owner of the home. As such, Michelle Flowers was
able to validly consent to the search of . . . defendant's
room and the police did not need to either obtain a
search warrant or obtain consent from . . . defendant
himself.

Surveying Pennsylvania third-party consent law, the court reached the same

conclusion.

But in reaching its decision, the trial court observed defendant "adopt[ed]

the State's [s]tatement of facts with the exceptions/additions," which the court

summarized as the State's:

• failure to set forth whether police asked Michelle
"about the details of [defendant's] living
arrangements";

• knowledge that defendant was an adult at the time of
the search but police failed to ask Michelle whether
there were "any rental arrangements" regarding
defendant's room;

• action in seeking consent from Piscitello for the
room occupied by her and Beagell, but police did not
similarly attempt to ask defendant for consent for his
room;

• failure to ask Michelle "specifically if she had the
right of entry into the room rented by the defendant;
and what her consent encompassed"; and

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 • failure to cite "exigent circumstances that would
have prevented the State from waiting to search . . .
defendant's separately occupied room until [it] had
either secured consent from [Michelle], as [it] did
with . . . Piscitello, or obtained a warrant.

It appears from the trial court's summary of defendant's "exceptions" and

"additions" to the factual statement set forth in the State's brief that defendant

raised issues of material fact concerning Michelle's authority to consent to a

search of his bedroom. Accordingly, a testimonial hearing was necessary. See

R. 3:5-7(c) (mandating a testimonial suppression hearing when material facts

are in dispute); State v. Parker, 459 N.J. Super. 26, 30 (2019); State v. Green,

346 N.J. Super. 87, 90 (App. Div. 2001). As the Court has reaffirm ed, an

evidentiary hearing is "[t]he proper mechanism through which to explore the

constitutionality of warrantless police conduct . . . ." State v. Atwood, 232 N.J.

433, 445 (2018) (citing N.J.R.E. 104; State v. Gamble, 218 N.J. 412, 419

(2014)). "At evidentiary hearings, the State presents witnesses to substantiate

its basis for the challenged warrantless conduct, and the defense is afforded the

opportunity to confront and cross-examine the State's witnesses." Ibid.

Notably, the Rule "does not require defendants to file an affidavit in order

to be entitled to a hearing on a motion to suppress evidence obtained as a result

of a warrantless search." State v. Torres, 154 N.J. Super. 169, 173 (App. Div.

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1977). But the defendant's counter-statement of facts must assert more than

"[t]he mere allegation of a warrantless search, with the attendant burden of proof

on the State to justify same," or mere denial of "the truth of the State's

allegations." Green, 346 N.J. Super. at 91.

Applying those principles here, we are satisfied defendant's counter-

statement of facts went further than requiring the State to justify the search or

merely denying "the truth of the State's allegations," despite counsel's late

request during oral argument. In reaching our decision, we agree with the trial

court, that the analysis regarding third-party consent searches is essentially the

same under the law of our State and Pennsylvania, as indicated below. We

therefore need not engage in a choice of law analysis. See State v. Minter, 116

N.J. 269, 279 (1989) (noting a choice-of-law analysis is necessary where the

search and seizure rules of the forum jurisdiction differ from the situs of the

search or seizure).

"Warrantless seizures and searches are presumptively invalid as contrary

to the United States and the New Jersey Constitutions." State v. Pineiro, 181

N.J. 13, 19 (2004). The same is true under Article I, Section 8 of the

Pennsylvania Constitution. Commonwealth v. Caple, 121 A.3d 511, 517 (Pa.

Super. 2015). To overcome this presumption, the State must show by a

A-2891-17T1
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preponderance of evidence that the search falls within one of the well-

recognized exceptions to the warrant requirement. State v. Bryant, 227 N.J. 60,

69-70 (2016). Pennsylvania law is in accord. Caple, 121 A.3d at 517. The

warrant requirement "is not lightly to be dispensed with, and the burden is on

the State, as the party seeking to validate a warrantless search, to bring it within

one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981).

Pennsylvania places the same burden on the Commonwealth. In the Interest of

L.G., 79 A.3d 1073, 1086 (Pa. 2013) (recognizing "regardless of whether the

defendant's suppression motion is detailed or boilerplate, the Commonwealth

carries the burden at suppression and satisfies that burden if it proves to the

satisfaction of the suppression court that the evidence was properly seized").

Both States recognize a consent search as a well-established exception to the

warrant requirement. See State v. Coles, 218 N.J. 322, 337 (2014);

Commonwealth v. Romero, 183 A.3d 364, 398 (Pa. 2018).

Our Supreme Court has recognized a parent's authority to consent to the

search of an adult child's bedroom is a question "of objective reasonableness

based on an assessment of the totality of the circumstances." Coles, 218 N.J. at

341. In making that assessment, courts may consider "whether a child has

exclusive possession of his or her room, such as whether the child pays rent;

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whether the parent has access to the child's room for cleaning or other such

general access purposes; and whether the child has the right to lock the door to

deny access." Ibid.; see also State v. Crumb, 307 N.J. Super. 204, 245 (App.

Div. 1997).

Similarly, Pennsylvania courts have recognized: "Overt indications of

privacy expectation are not necessary in a strict landlord-tenant relationship

because the expectation is understood by society. But cases dealing with search

and seizure in a family setting emphasize the need for overt indications."

Commonwealth v. Lowery, 451 A.2d 245, 247 (Pa. Super. 1982). Pennyslvania

courts have ackowledged "with certain exceptions, a parent has the authority to

consent to a search of his child's quarters in the parent's home." Id. at 247-48.

The court in Lowery noted the expectation was manifested where a nineteen-

year-old man "locked his bedroom and an adjoining kitchenette, and told his

mother not to enter nor to allow anyone else to enter." Id. at 248 (citations

omitted).

During oral argument the prosecutor argued certain facts – such as,

defendant did not pay rent to Michelle – were established in the record. As

defendant correctly countered, however, the parties and the court may have been

aware of details about the case, but absent testimony, the facts were not

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contained in the record. A reviewing court, "may only consider whether the

motion to suppress was properly decided based on the evidence presented at that

time." State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999).

While we recognize, and do not countenance, defendant's failure to request

a testimonial hearing prior to oral argument, it nonetheless appears he asserted

sufficient questions of fact in his brief's counter-statement and during argument

to warrant a testimonial hearing. We further observe all the authority cited by

the trial court – and the State on appeal – address decisions of motion judges, in

this State and Pennsylvania, after a testimonial hearing had been conducted.

See, e.g., State v. Lamb, 218 N.J. 300, 318 (2014); State v. Suazo, 133 N.J. 315,

320 (1993); Crumb, 307 N.J. Super. at 242; State v. Douglas, 204 N.J. Super.

265, 280 (App. Div. 1985); Commonwealth v. Basking, 970 A.2d 1181, 1191-

92 (Pa. 2009); Commonwealth v. Hunter, 963 A.2d 545, 552-53 (Pa. 2008);

Commonwealth v. Simmen, 58 A.3d 811, 814 (Pa. Super 2012); Lowery, 451

A.2d at 247-48.

In sum, the detectives who executed the search may have reasonably

believed Michelle had authority to consent to search defendant's bedroom,

Coles, 218 N.J. at 341, but their reasons are not apparent from the record. We

are therefore satisfied the appropriate remedy here is to remand the matter for a

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testimonial hearing. Following the hearing, should the trial court determine the

State failed to prove the necessary elements of a valid consent search, the BB

gun and baton seized from defendant's bedroom shall be suppressed and a new

trial granted. If, however, valid consent is established, we affirm defendant's

conviction, but remand for reconsideration of sentence for the reasons that

follow in Section VII below.

III.

In point I of his brief, defendant claims his right of confrontation was

violated when the prosecutor cross-examined him about the admissions he made

to his mother, who did not testify at trial. Defendant challenges the following

inquiry:

PROSECUTOR: Besides this [sic] alleged
conversations you had with David Beagell and Andy
Torres and Alexis Flowers that you say provided you
with the details of what happened because you weren't
there --

ANSWER: Uh-huh.

PROSECUTOR: -- you also had a conversation with
your mother about what took place that evening. Didn't
you?

ANSWER: Not really. I wouldn't call it a conversation.

PROSECUTOR: Well, you've seen the discovery in
this case correct?

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 ANSWER: Correct.

PROSECUTOR: You know your mother gave a
statement --

DEFENSE COUNSEL: Objection. Not in evidence.

THE COURT: Not in evidence.

PROSECUTOR: It doesn't matter, Judge.

THE COURT: Overruled. Sidebar.

At the ensuing sidebar, the prosecutor acknowledged Michelle's statement

was not in evidence, but indicated he intended to ask defendant what Michelle

said and "whether that was true or not." The judge overruled defense counsel's

continued objection, noting the prosecutor "can certainly [say], would it surprise

you if your mother said such and such." (Emphasis added).

Over defense counsel's continued objection, the prosecutor continued:

PROSECUTOR: Mr. Flowers, you did have . . . at least
one conversation with your mother about what took
place that evening. Did you not?

DEFENDANT: Uh-huh.

PROSECUTOR: Yes?

DEFENDANT: Yes.

PROSECUTOR: And . . . would it surprise you that
your mother said that you told her you were involved
and that you felt shitty about it and that it was going to

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 ruin your chance to go in the military? Would it
surprise you that she said that?

DEFENDANT: Yeah. I wasn't there for her statement.

PROSECUTOR: But, does it surprise you that --

DEFENDANT: I just said, yes.

PROSECUTOR: -- okay. So, that never happened?
You never had that conversation with your mother?

DEFENDANT: I just told you a minute ago I had a
conversation with my mother.

PROSECUTOR: But, you never told your mother that
you were involved or that you felt shitty about it --

DEFENDANT: No.

PROSECUTOR: -- or that it wouldn't get you in the
military?

DEFENDANT: No.

PROSECUTOR: All right. So, she's lying when she
told us that?

[(Emphasis added).]

The court sustained defendant's timely objection to the prosecutor's final

question in that line of inquiry and instructed the jury to "disregard th e last

statement by the prosecutor." Defendant did not answer the question. The

prosecutor continued to poke holes in defendant's recantation, including: why

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defendant would instruct Reed to erase their messages if defendant were only

"role playing"; why defendant would exonerate Beagell, whom he knew only for

a few months, yet implicate his sister in felony murder charges; how defendant

was able to provide details about the shotgun, which matched the gun police

seized from Torres's home; and how Beagell was under the impression

defendant's BB gun, baton and taser would be used in the robbery.

At the conclusion of the prosecutor's cross-examination – which spanned

more than twenty transcript pages, excluding the questions at issue – defense

counsel again "strenuously" objected to the prosecutor's questions concerning

defendant's statements to his mother, arguing the State "in effect put[] into

evidence that [defendant] told his mother he committed the crime." The next

trial day, during the final charge conference, defense counsel reiterated his

objection, requesting a mistrial. The court denied the motion, informing counsel

he would issue a curative instruction during its final charge, which would "not

be bolded" but would be included "just like any other part of the instructions."

Ordinarily, the scope of cross-examination is a matter addressed to the

trial judge's discretion. State v. Murray, 240 N.J. Super. 378, 394 (App. Div.

1990). We will interfere, however, when "clear error and prejudice are shown."

Ibid.

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 Criminal defendants have the constitutional right to confront the witnesses

against them. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Branch,

182 N.J. 338, 348 (2005). "The opportunity to cross-examine a witness is at the

very core of the right of confrontation." State v. Cabbell, 207 N.J. 311, 328

(2011). The Confrontation Clause generally prohibits the use of an out-of-court

testimonial hearsay statement unless the person who made the statement is

unavailable to testify at trial, and the defendant had a prior opportunity for cross-

examination. Id. at 329-30 (citing Crawford v. Washington, 541 U.S. 36, 59

(2004)). "A statement about a relevant past event made to a police officer

conducting a criminal investigation meets the Sixth Amendment's formality and

solemnity requirement for a testimonial statement." State v. Basil, 202 N.J. 570,

592 (2010).

Defendant testified at trial, placing his credibility squarely in issue. He

recanted his pre-arrest statements to Reed and Warfle and his post-arrest

statements to police, requiring the jury to determine which version rang true.

Obviously, the prosecutor sought to discredit defendant's belated story. In that

regard, he was entitled to impeach defendant's credibility by questioning him

about admissions he made to anyone, including his mother. See N.J.R.E.

803(c)(25) (recognizing a statement against interest as an exception to the

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hearsay rule); State v. White, 158 N.J. 230, 238 (1999). But the prosecutor's

questioning went further than permissibly asking whether defendant made

certain admissions to his mother regarding his "involve[ment]" in the incident.

Because Michelle did not testify at trial, the prosecutor impermissibly

asked defendant, "would it surprise you that your mother said that you told her

you were involved . . . ." (Emphasis added). Michelle's out-of-court statements

to police about defendant's statements to her clearly were inadmissible hearsay

under N.J.R.E. 802, and violated the Confrontation Clause. Functionally, the

prosecutor's inquiry of defendant about what Michelle told police was a

backdoor means of improperly eliciting Michelle's hearsay statement. 7 Cf.

Murray, 240 N.J. Super. at 394-95.

7
Compounding the error, the prosecutor then asked defendant whether his
mother was lying when she gave her statement to police about his admissions.
It is well settled that "the mere assessment of another witness's credibility is
prohibited." State v. Frisby, 174 N.J. 583, 594 (2002). The trial court correctly
and immediately sustained defense counsel's objection at trial; defendant does
not challenge the court's ruling or the prosecutor's remark on appeal; and for the
reasons that follow, we conclude the prosecutor's entire line of inquiry was
harmless error. We nonetheless take this opportunity to remind the State of its
obligation to conduct cross-examination within the bounds of our jurisprudence.
Indeed, "New Jersey courts have commented repeatedly on the special role filled
by those entrusted with the responsibility to represent the State in criminal
matters, observing that the primary duty of a prosecutor is not to obtain
convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-
03 (2012).
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 Nor are we persuaded that the trial court's instruction cured the prosecutor's

error. Although the Supreme Court has recognized, "[w]hen inadmissible

evidence is admitted in error by the trial court, a curative instruction may

sometimes be a sufficient remedy," State v. Prall, 231 N.J. 567, 586 (2018), the

Court also has cautioned a curative instruction generally "must be firm, clear,

and accomplished without delay" to alleviate potential prejudice from

inadmissible evidence, State v. Vallejo, 198 N.J. 122, 134 (2009). Those criteria

were not met here.

The curative instruction was issued as part of the court's final jury charge

within the "Function of the Court" section. See Model Jury Charges (Criminal),

"Final Charge" (rev. May 12, 2014).

I may have sustained an objection or objections
to some questions asked by counsel which may have
contained statements of certain facts. The mere fact
that an attorney asks a question and inserts facts, or
comments, or opinions in the question in no way proves
the existence of those facts.

Specifically, you are to disregard any questions
related to statements made to third parties who have not
testified. They are not evidence.

You will only consider such facts which in your
judgment have been proven by the testimony of
witnesses or other . . . or from exhibits admitted into
evidence by the court.

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25
 [(Emphasis added).] 8

That instruction lacked specificity, referring obliquely to "any questions

related to statements made to third parties who have not testified." The

instruction also was "delayed," having been issued two trial days after the

prosecutor's erroneous cross-examination concluded. 9

Nonetheless, we are not convinced defendant was prejudiced by the

inquiry. Murray, 240 N.J. Super. at 394-95. We therefore consider the

prosecutor's line of questioning for harmless error. See R. 2:10-2 (directing

reviewing courts to disregard "[a]ny error or omission . . . unless it is of such a

nature as to have been clearly capable of producing an unjust result"). A trial

error only warrants reversal of a defendant's conviction if the error raises "'a

reasonable doubt' as to whether [it] affected the result reached by the jury."

Prall, 231 N.J. at 588 (alteration in original); State v. Weaver, 219 N.J. 131, 154

(2014).

Harmless error may be disregarded by the reviewing court even where the

trial court is found to have abused its discretion in admitting evidence and failed

8
We emphasize the court's addition to the model jury instruction.
9
Because the court was in recess during Thanksgiving week, the court did not
issue its final charge until twelve calendar days after defendant testified.
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26
to properly instruct the jury. See Prall, 231 N.J. at 581, 587-88. We evaluate

the error "in light of the overall strength of the State's case." State v. Sanchez-

Medina, 231 N.J. 452, 468 (2018); see also State v. Hightower, 120 N.J. 378,

410 (1990) (finding harmless error where the officer testified defendant "was

the person responsible for the murder" in view of "the strength of the State's

case, the length of the trial, and the number of witnesses called").

Defendant argues the error was not harmless due to the lack of eyewitness

identification and the "scarcity of other evidence apart from admissions, for

which there was an explanation." We disagree.

Defendant's confession to police was replete with details of the events as

they unfolded, including the planning of the robbery and the shooting of the

attendant. Many of those details were corroborated by physical evidence

admitted at trial. For example, defendant told police he wanted to bring along

his baton, taser and BB gun, all of which were seized from his home and

admitted in evidence. Defendant also provided specific details about the

characteristics of the shotgun, its gray fabric case, and the colors and size of the

ammunition shells that Torres loaded into the gun, which matched the shotgun,

fabric case, and ammunition seized from Torres's residence and admitted in

evidence.

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27
 Defendant also described the route taken to the gas station and how he

removed the Pennsylvania license plates from Michelle's car and replaced them

with New Jersey plates from a random car along the way. He explained that

Torres went around the back of the building to cut the wires to the surveillance

system, and he and Torres waited behind the gas station for the other cars to

leave before they approached the attendant.

Defendant precisely described the execution of the robbery and shooting,

explaining the attendant "couldn't really speak English very well" 10 so Torres

"repeated give me all your money mother fucker and uh, the dude immediately

emptied his pockets out and gave him the money." Defendant "grabbed the

money out of the cigar box" and Torres demanded Kasam's gold ring, which

police later recovered from a pawn shop and was admitted in evidence.

Defendant described exactly where Torres shot Kasam: "Like kinda by the

booth but kinda in front of the pump and [Torres] was back like five or six f eet

and he shot him in the leg. I saw his pants ruffle. I didn't really see any, any

holes or any blood splatter or anything." Defendant told police Torres: "Angled"

10
Defendant included the audio portion of his video-recorded statements on
appeal. Our review of the recording discloses defendant affected an accent when
relating Kasam's statements.

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28
the shotgun "down at [Kasam's] knee cap." And, Torres "didn't look around, he

didn't take his eyes off of [Kasam] for a second. He looked directly at him,

pointed down and went boom." That description was consistent with the opinion

of the State's reconstruction expert, who testified the shot was fired on a

downward angle.

The jury was afforded the opportunity to assess defendant's credibility

during his video-recorded statements to police – which they viewed again during

deliberations – and compare his demeanor on the stand when he recanted those

statements. The jury also heard the testimony of Warfle and Reed, which was

corroborated by the text message exchange between Reed and defendant,

including defendant's instructions to delete the incriminating messages.

Importantly, the jury was presented with physical evidence that corroborated

defendant's account: the BB gun, baton and taser.

Under the totality of those circumstances, we agree with the State that

"[t]he jury was presented with sufficient evidence, including [defendant]'s own

statements to police, his conversations with third party witnesses, his text

messages to [Reed], and the discovery of evidence in [defendant]'s room, to

properly find [him] guilty . . . ." Moreover, the prosecutor's erroneous

questioning was brief compared with his overall cross-examination of

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29
defendant. And, the prosecutor made no mention of Michelle's statements to

police – or defendant's statements to her – in his closing remarks to the jury.

While we do not condone the prosecutor's line of questioning, we are

persuaded the prosecutor's error was harmless. See Hightower, 120 N.J. at 410.

Compare State v. Branch, 182 N.J. 338, 353-54 (2005) (finding improper

admission of hearsay statements implicating the defendant warranted a new trial

where, among other things, there was no physical evidence admitted at trial)

with State v. Roach, 146 N.J. 208, 226 (1996) (concluding a Confrontation

Clause violation was harmless in light of the overwhelming evidence against the

defendant, including the defendant's confession recounting "the details of the

shooting").

IV.

We turn to defendant's contentions raised in point V. Defendant primarily

argues he did not knowingly and voluntarily waive his Miranda rights because

"he was barely an adult living with his mother," who persuaded him to confess.

Defendant also claims police participated in off-the-record conversations en

route to the police station that were not recorded, "raising a reasonable doubt

about the State's proofs." We reject these arguments, finding ample evidence in

A-2891-17T1
30
the record that both defendant's post-arrest statements were the product of his

own free will, State v. L.H., 239 N.J. 22, 42 (2019), and properly elicited.

The events that preceded the actual questioning of defendant were fully

explored at the evidentiary hearing and in the court's oral decision. The State

produced Detective Justin Boyce of the Warren County Prosecutor's Office, who

administered the rights before defendant made both statements and conducted

the inquiry.11 Michelle and defendant also testified at the hearing.

As the trial court found, and the recordings reveal, Boyce read defendant

his Miranda warnings, and asked whether he understood each right. Defendant

replied, "Yes," to each inquiry. Boyce stated he permitted Michelle to speak

with defendant, but their conversation occurred after defendant made his second

statement. Boyce acknowledged he engaged defendant in "casual conversation"

with defendant during the five- to ten-minute ride to the police station. Because

defendant did not make any admissions at that time, Boyce did not memorialize

their conversation in his report.

Conversely, Michelle testified: "[T]hey told me that they would let me see

him if I convinced him to give a confession." Michelle said: "[T]hey put us in

11
The State introduced the video recordings of both statements throug h the
testimony of another detective, whose testimony was limited to authenticating
the recordings.
A-2891-17T1
31
a room together" and she told defendant "to tell them that he did it." Michelle

continued: "It took a while for me to get him to say anything to them at all."

Defendant told the court a similar account, stating he was "pretty sure" his

mother met with him before he gave his statement "otherwise there would have

been no reason for her to try to convince me to give the statement in the first

place."

On cross-examination of both witnesses, the prosecutor elicited time

frames that shed doubt on the sequencing of the mother-son conversation, as

alleged by the defense. The testimony revealed Michelle was present when

Alexis gave her statement, which police recorded. The transcript of Alexis's

statement reveals a comment by Michelle around 5:39 p.m. that she had been at

the police station for about four hours, but had not yet spoken with defendant,

whose statement had begun at 5:10 p.m.

In its oral decision, the trial court explained it found Boyce "particularly

credible," noting there were no "gaps in his testimony." Conversely, the cou rt

discredited the testimony of defendant and his mother, finding Michelle's

account sounded "contrived," with "gaps" concerning timeframes. The court

therefore believed Boyce's testimony, including the sequencing of Michelle's

conversation with defendant. But the court observed no impropriety even had

A-2891-17T1
32
Michelle spoken with defendant before he confessed, noting defendant cited no

authority prohibiting a parent from doing so, or that it would rise to the level of

"unwarranted, or illegal . . . use of police trickery, or psychological pressure."

In reaching its decision, the trial court acknowledged it viewed both video

recordings of Boyce's Miranda warnings. The court observed defendant's waiver

was knowing and intelligent, and his statements were voluntarily made, in light

of the totality of the circumstances. The court considered the sufficiency of the

warnings; that defendant was "re-Mirandized" before giving his second

statement; and he appeared to understand his rights. The court also referenced

defendant's age, literacy, and sobriety at the time he waived his rights, and that

police made "no threats of inducement."

Our review of the court's determination is limited. We defer to a judge's

factual and credibility determinations when, as here, they are supported by

evidence in the record. See Dunbar, 229 N.J. at 538. In deferring to the court's

findings based on its observations of the witnesses at the hearing and its review

of the video recordings of the issuance of the warnings, we find no reason to

intervene. See State v. Davila, 203 N.J. 97, 109-10 (2010). We affirm

substantially for the reasons set forth in the trial court's sound oral decision.

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33
 V.

Little need be said about the contentions raised in point II. The court

issued a sequestration order prior to trial, prohibiting the witnesses from

discussing their trial testimony. See N.J.R.E. 615. Defendant renews his

argument that Reed and Warfle violated the order during their hallway

conversation before Reed testified, thereby negatively impacting his attorney's

ability to cross-examine the witnesses. Defendant's claim is unavailing.

Warfle and Reed testified in succession at trial and sat together in the

hallway outside the courtroom while they waited to testify. On direct-

examination, Reed said he had forgotten the couple drove defendant to his

father's house the night defendant confessed his involvement in the incident –

until Reed spoke with Warfle "in the hallway." Defense counsel immediately

moved for a mistrial. The court excused the jury and conducted a hearing

pursuant to N.J.R.E. 104, during which Reed confirmed the couple did not

discuss Warfle's testimony after she testified; they had spoken before Warfle

was called into the courtroom; and Warfle merely refreshed Reed's testimony.

Correctly recognizing the purpose of a sequestration order is to prohibit

witnesses from discussing their testimony after they testify at trial, the trial court

denied defendant's application, finding the lack of any evidence "that anything

A-2891-17T1
34
was discussed post-testimony." See State v. Williams, 404 N.J. Super. 147, 160

(App. Div. 2008) (recognizing the purpose of a sequestration order is "to prevent

prospective witnesses from hearing what the other witnesses detail in their

evidence"); see also State v. DiModica, 40 N.J. 404, 413 (1963). Given our

discretionary standard of review, State v. Hyman, 451 N.J. Super. 429, 441

(App. Div. 2017), we discern to reason to disturb the court's ruling.

VI.

We find insufficient merit in defendant's newly-minted contentions raised

in point III – that the video recording was "indiscernible" – to warrant discussion

in this written opinion. R. 2:11-3(e)(2). We simply note both of defendant's

post-arrest statements were played during trial and during jury deliberations,

with no issues whatsoever raised by trial counsel, the prosecutor, the jurors, or

the court.

VII.

In defendant's final point, he challenges his sentence, asserting it exceeds

the mandatory-minimum prison term for felony murder by five years. See

N.J.S.A. 2C:11-3(b)(1). Defendant essentially argues the trial court improperly

considered the "crime itself as an aggravating factor" and failed to consider his

role in the offense, his age, and susceptibility to influence by others.

A-2891-17T1
35
 Following appropriate mergers, the trial court imposed a thirty-five-year

term of imprisonment on the felony murder conviction and a concurrent three-

year prison term for unlawful possession of the shotgun used in the commission

of the offense. The court found and assigned "heavy weight" to aggravating

factors one (the nature and circumstances of the offense) and two (the gravity of

harm to the victim, including his particular vulnerability); and "considerable

weight" to aggravating factors on aggravating factors three (the risk defendant

will commit another offense) and nine (the need to deter) on the felony murder

conviction, N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9). The court also found

aggravating factors three and nine on the unlawful possession of a weapon

conviction.12 The court considered the litany of mitigating factors argued by

defense counsel, see N.J.S.A. 2C:44-1(b)(1), (2), (7), (8), (9), (10), (11), (12)

and (13), but found none applied on any counts of conviction.

"Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). Ordinarily, we defer to the sentencing court's

12
The court incorrectly found aggravating factors three and nine also applied
on the three counts that it had properly merged with the felony murder coun t:
count two (armed robbery); count three (conspiracy to commit robbery); and
count four (possession of a weapon for an unlawful purpose). On remand, the
court shall neither impose aggravating factors on the merged counts nor consider
their weight in resentencing defendant. The judgment of conviction shall be
amended accordingly.
A-2891-17T1
36
determination, State v. Fuentes, 217 N.J. 57, 70 (2014), and do not substitute

our assessment of the aggravating and mitigating factors for that of the trial

judge, Miller, 205 N.J. at 127. Relevant to this appeal, we must affirm the

sentence, unless: "the aggravating and mitigating factors found by the

sentencing court were not based upon competent and credible evidence in the

record." Ibid. "Elements of a crime, including those that establish its grade,

may not be used as aggravating factors for sentencing of that particular crime,"

State v. Lawless, 214 N.J. 594, 608 (2013), which "would result in

impermissible double-counting." State v. A.T.C., 454 N.J. Super. 235, 254

(App. Div. 2018); see also State v. Yarbough, 100 N.J. 627, 633 (1985). We

will remand for resentencing if the sentencing court considers an inappropriate

aggravating factor. Miller, 205 N.J. at 129.

At the outset, we discern no error in the trial court's finding of aggravating

factor three based on defendant's prior involvement with the law as a juvenile

and pending aggravated assault charge against a correction officer while

detained on the present offenses. Nor do we find any error in the application of

aggravating factor nine, in view of the strong need to deter defendant and others

from the senseless violence that underscored his convictions.

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37
 We also are not persuaded by defendant's argument that the trial court

failed to find mitigating factors two (defendant did not contemplate his acti ons

would cause serious harm) and thirteen (he was substantially influenced by a

more mature individual). N.J.S.A. 2C:44-1(b)(2) and (13). As the trial court

reasonably determined, mitigating factor two did not apply here, where

defendant "agreed to participate in a robbery in which there was a loaded

firearm." Although the court recognized defendant was only eighteen years old

when he committed the crime, it noted the record was devoid of any evidence

defendant was influenced by Torres or Alexis, warranting application of

mitigating factor thirteen. Rather, as the trial court noted, defendant apparently

convinced Beagell to participate. Moreover, based on our review of the record,

the court properly found none of the other six mitigating factors argued by

defense counsel applied.

We turn to the court's assessment of aggravating factors one 13 and two.

"While sentencing courts frequently apply both aggravating factors one and two,

each requires a distinct analysis of the offense for which the court sentences the

13
We recognize defendant's merits brief does not state the court found
aggravating factor one. Because defendant generally argued the court
impermissibly "used the crime itself as an aggravating factor," we choose to
consider the propriety of aggravating factor one.
A-2891-17T1
38
defendant." Lawless, 214 N.J. at 600. We consider these factors in reverse

order.

Aggravating factor two involves an assessment of "[t]he gravity and

seriousness of harm inflicted on the victim," taking into account the defendant's

knowledge "that the victim of the offense was particularly vulnerable or

incapable of resistance due to advanced age, ill-health, or extreme youth, or was

for any other reason substantially incapable of exercising normal physical or

mental power of resistance . . . ." N.J.S.A. 2C:44-1(a)(2). "Aggravating factor

two "focuses on the setting of the offense itself with particular attention to any

factors that rendered the victim vulnerable or incapable of resistance at the time

of the crime." Lawless, 214 N.J. at 610-11. The factor "does not limit

'vulnerability' to age or other physical disabilities of the victim." State v.

O'Donnell, 117 N.J. 210, 218-19 (1989) (finding the victim, who had been "tied

up" was "rendered vulnerable within the meaning of [aggravating factor two]").

In applying aggravating factor two, the trial court noted Kasam was

"outnumbered and outgunned" and "[o]nce [defendant] made the decision to take

part in the armed robbery [he] set in motion circumstances that would leave Mr.

Kasam particularly vulnerable" because Kasam was unarmed. "At that point

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39
where [Kasam] was most vulnerable he was shot and left bleeding and

[defendant] left him there to die."

In support of its decision, the court's judgment of conviction properly

relied on and cited our decision in State v. Faucette, 439 N.J. Super. 241, 272

(App. Div. 2015), where we upheld a finding that a gas station attendant alone

at night was "particularly vulnerable." Ibid. Like the victim in Faucette, Kasam

was working alone at the BP gas station, when he was shot and killed by his

assailants during an armed robbery. Ibid. Defendant told police he and Torres

waited until no other cars were present at the gas station before approaching

Kasam. In that regard, Kasam was similarly vulnerable as the victim in Faucette.

Accordingly, the competent and credible evidence in the record supports the

court's finding of aggravating factor two. Miller, 205 N.J. at 127.

We part company, however, with the court's finding of aggravating factor

one, which "must be premised upon factors independent of the elements of the

crime and firmly grounded in the record." Fuentes, 217 N.J. at 63. Aggravating

factor one not only requires consideration of "[t]he nature and circumstances of

the offense," but also "the role of the actor therein, including whether or not it

was committed in an especially heinous, cruel, or depraved manner . . . ."

N.J.S.A. 2C:44-1(a)(1). "In appropriate cases, a sentencing court may justify

A-2891-17T1
40
the application of aggravating factor one, without double-counting, by reference

to the extraordinary brutality involved in an offense." Fuentes, 217 N.J. at 75;

State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div. 2001) (applying factor one

in an aggravated manslaughter and felony murder case where the defendant

brutally and viciously attacked the victim).

As to this factor, the court found: "Kasam was not shot in such a manner

that death was instantaneous. Rather, he was shot and left to suffer [a]n

agonizing . . . and painful death. He was not armed. He was shot in the leg.

The shooting constituted excess force to accomplish the robbery." (Emphasis

added). Noting defendant did not fire the shot that killed Kasam, the court found

defendant knew Torres was armed with a firearm and "was capable of shooting

the victim in such circumstances."

According to the trial record, Kasam was killed by a single gunshot.

Although he did not succumb to his wound until two days later, the shooting

itself did not "extend[] to the extreme reaches of the prohibited behavior."

Fuentes, 217 N.J. at 75. Likewise, the gravity of harm to the victim, i.e., death,

is itself an element of first-degree felony murder. While, as the court noted, the

shooting exceeded the force necessary to complete the robbery offense, that

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41
conviction merged with defendant's felony murder conviction, for which he was

sentenced.

Because the trial court erred in finding aggravating factor one, we remand

for reconsideration of defendant's sentence in its absence.

Affirmed in part; remanded in part. We do not retain jurisdiction.

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