STATE OF NEW JERSEY VS. RODNEY SMILEY (15-10-2434, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-1648-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY SMILEY, a/k/a
FOO SMILEY,

Defendant-Appellant.
________________________

Argued October 18, 2021 – Decided December 22, 2021

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-10-2434.

Michael Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael
Confusione, of counsel and on the brief).

Daniel Finkelstein, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Daniel Finkelstein, of
counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

On October 7, 2015, an Atlantic County grand jury indicted defendant

Rodney Smiley for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count

one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:11-3 (count two); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(b) (counts four and five); second-degree witness

tampering, N.J.S.A. 2C:28-5(a)(1) (count six); and second-degree certain

persons not to possess a weapon, N.J.S.A. 2C:39-7 (counts seven and eight).

Following a jury trial, defendant was convicted of first-degree witness

tampering, one count of second-degree unlawful possession of a weapon, and

one count of second-degree certain persons not to possess a weapon. The jury

was deadlocked on first-degree conspiracy to commit murder, but found

defendant not guilty of first-degree murder, one count of second-degree

unlawful possession of a weapon, and one count of second-degree possession of

a weapon for an unlawful purpose. He was sentenced to an aggregate thirty-

five-year prison term with an eighteen-year parole disqualifier.

Defendant appeals arguing:

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POINT I

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE SEIZED BY POLICE.

POINT II

THE TRIAL COURT ERRED IN PERMITTING INTO
EVIDENCE PRIOR INCONSISTENT
STATEMENTS.

POINT III

REFERENCE TO DEFENDANT'S VEHICLE AS
BEING "FAMILIAR" TO THE TESTIFYING
DETECTIVE BELOW UNFAIRLY PREJUDICED
DEFENDANT BEFORE THE JURY.

POINT IV

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR MISTRIAL DURING
JURY DELIBERATIONS.

POINT V

THE SENTENCING COURT ERRED IN NOT
GRANTING AN EVIDENTIARY HEARING IN
LIGHT OF THE AT LEAST APPARENT CONFLICT
OF INTEREST OF THE TRIAL JUDGE AT THE
TIME OF DEFENDANT'S TRIAL.

POINT VI

DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.

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 In a pro se supplemental brief, defendant argues:1

POINT I

ENHANCING APPELLANT['S] SENTENCE
CONTRARY TO APPRENDI V. NEW JERSEY 2 []
ARBITRARILY ALLOW[ED] THE SENTENCING
[BY] THE TRIAL JUDGE TO PERSONALLY
IMPLEMENT PREJUDICIAL COMMENTS AND
BIAS INFLUENCE BEFORE THE JURY [AND]
DENIED A FUNDAMENTAL FAIR DUE
PROCESS/EQUAL PROTECTION RIGHTS JURY
TR[IA]L AND FAIR SENTENCING PHASE []
CONTRARY TO THE U.S CONST. 14TH AND 6TH
AMEND. [], N.J. CONST. ART. 1, PARA. 10.

POINT II

THE PROSECUTOR COMMITTED
PROSECUTORIAL MISCONDUCT IN GRAVE
VIOLATION TO THE EVIDENCE ACT PURSUANT
TO N.J.S.A. 2A:84A-33 ET SEQ. IN SECURING THE
ALLEGED WITNESS INTO CUSTODY FOR
TESTIMONY APPEARANCE IN APPELLANT'S
TRIAL AND US[ING] [THE] SAME TO CREATE
TAMPERING WITH WITNESS CHARGES
AGAINST APPELLANT DESPITE THE INITIAL
COERCI[VE] STATEMENT VASTLY DIFFER[ING]
FROM HER SENTENCING PHASE STATEMENT.

1
We note that defendant's pro se arguments are indecipherable as they contain
many grammatical errors and lack citations to the record.
2
530 U.S. 466 (2000).

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 POINT III

APPELLANT WAS DENIED HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO
EXHIBIT CONFRONTATION AND CROSS
EXAMINATION RIGHTS, PURSUANT TO THE U.S.
CONST. 6TH AMEND.[,] 14TH AMEND.[,] AND
N.J. CONST. ART. 1, PARA. 10 WHEN THE TRIAL
COURT AND THE PROSECUTOR KEPT
PIECE-MEALING PREJUDICIAL COMMENTS/
LANGUAGE OF ORGANIZED CRIME THAT WAS
GRAVELY CONTRARY TO ANY GRAND JURY
FINDINGS, AS USED DURING SENTENCING.

POINT IV

THE CUMULATIVE ERRORS WARRANT A
REVERSAL OF THE CURRENT CONVICTION
AND SENTENCE BECAUSE THEY DENIED
APPELLANT HIS STATE AND FEDERAL
CONSITUTIONAL RIGHTS TO A FAIR JURY
TRIAL WITH DUE PROCESS AND EQUAL
PROTECTION CONTRARY TO HIS U.S. CONST.
14TH AND 6TH AMEND[S]. AND N.J. CONST.
ART. 1[,] PARA 10.

We reject the entirety of defendant's arguments and affirm.

I

On September 6, 2012, Jose Ortiz was shot and killed in Atlantic City.

Three or four people wearing black clothes and masks were observed in a black

vehicle and they fired at least ten shots before driving away.

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 The ensuing Atlantic City police investigation located twenty-nine shell

casings at the shooting scene; a ballistics expert later determined they were fired

from three guns. A surveillance camera video depicted a black vehicle, later

identified as owned by defendant's then-girlfriend, Mercedes Camarota, leaving

the scene of the shooting. According to cell phone records, defendant, who had

borrowed the vehicle that day, was within a mile of the shooting. Police located

the vehicle, in which defendant's fingerprints were found, approximately a mile

from the shooting.

On September 7, police searched the vehicle after obtaining a search

warrant. No contraband was found in the vehicle before the warrant's ten-day

expiration date. See R. 3:5-5. The police did not return the vehicle to Camarota.

While the vehicle was being detained, the police communicated with Camarota,

who did not demand its return and revealed that a handgun was concealed in the

vehicle. The police kept the vehicle for forty days before obtaining a second

search warrant on October 18. During the second warrant's execution, a .32

caliber handgun containing defendant's DNA and a .32 caliber cartridge were

found in the concealed area.

Prior to trial, the motion judge, who was not the trial judge or sentencing

judge, denied defendant's motion to suppress the handgun. Defendant claimed

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the decision by police to retain Camarota's vehicle thirty days after the first

warrant had expired on September 17, and before obtaining the second warrant,

was a violation of the Fourth Amendment. The motion judge disagreed, ruling

[T]here's no direct case law that says . . . after you get
a search warrant, you seize a vehicle, the vehicle has to
be returned within x number of days, and then if you
want to go search it again, you go get a new search
warrant, find the vehicle[,] and search it again.

The judge found there was probable cause for the issuance of the second warrant.

During the December 2016 trial, the prosecutor asked Atlantic City

Detective James Brennan on direct examination about attempts to locate the

vehicle. When the detective stated, "I was familiar with a vehicle from previous

police contact," the defense objected. The trial judge overruled the objection

but advised the jury that the comment was in reference to a prior "motor vehicle

summons" involving defendant's use of the vehicle.

Also, during the trial, Camarota testified that defendant did not threaten

her. Prior to her testimony, the trial judge conducted a Rule 104 hearing under

State v. Gross, 121 NJ 1 (1990), to determine if the State could introduce

Camarota's prior inconsistent statements asserting defendant threatened to kill

her if she testified, slapped her, accused her of being a confidential informant,

and told her to "be careful." The judge found "by a preponderance of the

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credible evidence that the [prior recorded] statements are sufficiently reliable

and[,] provided Camarota testifies to the contrary, the State would be permitted

to play the recordings in open court for the jury." The State was also allowed

to inform the jury of Camarota's prior inconsistent statements indicating that

defendant was one of the shooters at Ortiz and that the shooting involved trying

to kill someone named "Moo Moo." To rebut the statements, the defense pointed

out on Camarota's cross-examination that she had spoken to police "several

times prior" and never said anything about defendant having been involved in

the shooting.

During the jury charge regarding the prior inconsistent statements, the

judge stated:

Evidence has been presented showing that at a prior
time a witness, Mercede[s] Camarota, has said
something or has failed to say something which is
inconsistent with the witness's testimony at the trial.
You may consider this evidence along with all the other
evidence in the case. In deciding whether any such
statement, if made, is credible, you should consider any
relevant factors including [her] connection to and
interest in the matter reported in her prior statement, the
person or persons to whom she gave the statement, the
place and occasion for giving the statement, whether
[she] was then in custody or otherwise the target of an
investigation, [her] physical and mental condition . . .
at the time, the presence or absence of any other
persons, whether [she] incriminated herself or sought to
exculpate herself by the statement, the presence or

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 absence and the nature of any interrogation, whether the
sound recording contains all or only a portion or a
summary of what [she] said, the presence or absence
of any motive to fabricate, the presence or absence of
any explicit or implicit pressures, inducement or
coercion for making the statement, whether the use to
which the authorities would put the statement was
apparent or made to [her], the inherent believability or
lack of believability of the statement, the presence or
absence of corroborating evidence.
I further instruct you that a witness's prior
inconsistent statement under police interrogation must
be carefully examined and assessed in light of all the
surrounding circumstances, including her interest in
giving the statement at that time[.] If you decide that
the statement is reliable, then you may consider it for
its truth and weight along with . . . all the other evidence
in this case. However, if you decide that the statement
is not reliable, then you may not consider it for any
purpose at all.

On December 12, the jury found defendant guilty of first-degree witness

tampering and one count of second-degree unlawful possession of a weapon.

On the murder charge, the jury was confused about whether they had reached a

unanimous verdict, so the judge directed the jurors to return to the jury room to

determine whether their respective votes on each count were unanimous. The

jury subsequently announced it was deadlocked on the lesser-included charge of

aggravated manslaughter and the conspiracy charge, but acquitted defendant of

the remaining charges. Because defendant was found guilty of one count of

second-degree unlawful possession of a weapon, he stipulated he was a "certain

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person" under N.J.S.A. 2C:39-7, and consented to having the court determine

his guilt on one count of certain persons not to possess a weapon. The judge

found him guilty of the offense under that count, and not guilty of the other

count charging certain persons not to possess a weapon.

Defendant moved for a mistrial based on the jury's initial confusion

regarding unanimity on the murder count. The trial judge denied the motion,

finding:

The [c]ourt has considered that [because of the
confusion, no verdict rendered by the jury should be
entered and it should be a mistrial as to all counts],
however, although there may have been some confusion
on the jury's understanding . . . they have, in fact,
reached unanimity on four of the six counts. That has
been confirmed. They indicated that there is no amount
of time that would allow them to deliberate that could
lead them to unanimity on [first-degree murder or first-
degree conspiracy to commit murder]. As a result,
since they cannot reach unanimity on [those charges],
then they cannot proceed to the lesser included
charges. . . .

So, as a result, the [c]ourt is inclined to accept a
partial verdict . . . .

On June 16, 2017, a different judge (the sentencing judge), sentenced

defendant because the trial judge was nominated to be Atlantic County

Prosecutor on February 28. Defendant argued that because he was indicted for

second-degree witness tampering, his conviction for first-degree witness

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tampering should be downgraded to the second degree. The sentencing judge

denied the application and sentenced defendant as follows:

The [c]ourt concludes that a mandatory extended
term is required on [second-degree unlawful possession
of a weapon] pursuant to the Graves Act, N.J.S.A.
2C:43-6(c). Further, the chronological sequencing of
the defendant's firearms convictions are not
determinative of the requirement to impose a
mandatory extended term on this count. See State v.
Hawks, 114 N.J. 359, [1989] and State v. Halisky, 140
N.J. 1, a 1995 case.

....

[T]he [c]ourt will consider whether to impose a
consecutive sentence under an analysis of the [State v.]
Yarbough[, 100 N.J. 627 (1985)] factors.

....

[Defendant] is [twenty-seven] years old. His
criminal history is extensive[,] with ten arrests resulting
in six convictions, two indictable[,] and four [in]
municipal [court].

His previous convictions involve[d] [possession
of controlled dangerous substances] with intent to
distribute, assault, disorderly conduct, possession of
marijuana[,] and obstruction. He's been to prison
before. When afforded probation in the past, he
violated. He was last released from State Prison on
August 25th of 2015[,] where he was serving a prison
sentence from a handgun charge.

Defendant has a domestic record without final
restraints. Defendant has an extensive juvenile record

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with eight arrests and six adjudications for aggravated
assault, possession with intent, conspiracy to commit
robbery and resisting, possession of marijuana,
receiving[,] and trespass.

He has served a term of juvenile probation and
detention. When afforded probation and [Intensive
Supervision Program,] he violated. [D]efendant reports
no serious substance issues. He is unemployed owing
to his incarceration. He has completed his high school
education. He is unmarried and has one child to whom
he is in arrears in child support.

Based on all these facts and circumstances, the
[c]ourt finds and concludes that the following
aggravating factors apply to this sentence.

Aggravating factor [three, N.J.S.A. 2C:44-
1(a)(3)] applies and has great weight. There is more
than a risk that this defendant will commit another
offense. If left to his own devices, it is a virtual
certainty that he will offend again and violently.

[D]efendant's criminality has been escalating
dangerously and sharply since his teen years. There is
little doubt that . . . defendant will offend again.

Aggravating factor [five, N.J.S.A. 2C:44-1(a)(5)]
applies and has significant weight. There is a
substantial likelihood that the defendant is involved . . .
in organized criminal activity. Defendant has been
involved with street crime and gang criminality since
his teen years.

The incident during which . . . defendant
intimidated a witness stems from violent street gang
behavior to frustrate the course of criminal justice by
promoting and violently enforcing the ["]no[-]snitch["]

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 mentality. This aggravating factor has great weight and
is applied to [c]ount [six], witness tampering.

Aggravating factor [six, N.J.S.A. 2C:44-1(a)(6)]
applies and has great weight. The extent of . . .
defendant's prior criminal record and the seriousness of
the offense of which he's been convicted is apparent.
[D]efendant has been in and out of incarceration and
has been racking up offenses for most of his life.

....

Aggravating factor [nine, N.J.S.A. 2C:44-
1(a)(9)] applies and has the greatest weight. There is a
very strong need to deter this defendant from violating
the law. Prior sanctions[,] including probationary and
prison sentences[,] have not adequately deterred his
criminality. A very substantial commitment to State
Prison is now required to specifically deter . . .
defendant from future criminality.

....

The [c]ourt has carefully considered the entirety
of the record in this case and can find no mitigating
factors that apply.

. . . The aggravating factors clearly and
substantially in quality and quantity outweigh the
absence of mitigating factors or any other factor.

Given the great weight of the aggravating
factors[,] a sentence well-above the mid[-]range is
required on each count.

Defendant was sentenced to an aggregate prison term of thirty-five years

with eighteen years of parole ineligibility based on: a mandatory extended term

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of seventeen years for second-degree unlawful possession of a weapon, with

eight-and-a-half years of parole ineligibility; consecutive to a mandatory

extended term of eighteen years for first-degree witness-tampering, with nine-

and-a-half years of parole ineligibility; and a concurrent ten-year term for the

second-degree certain persons conviction. The State dismissed the deadlocked

conspiracy charge.

II

Defendant argues the motion judge erred in denying his motion to

suppress the search and seizure of the handgun pursuant to the second search

warrant. There is no merit to this argument. He cites no legal support for his

argument that the search was unreasonable under our federal and state

constitutions because the first search warrant was executed without discovering

the handgun and the police continued to hold the vehicle for forty days before

obtaining the second warrant.

Defendant's challenge to the denial of his motion to suppress is strictly a

legal one, as there are no factual disputes regarding the issuance of the two

search warrants and their execution. Thus, we owe no deference to the motion

judge's order. State v. Gamble, 218 N.J. 412, 425 (2014).

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 Our Supreme Court has held that "[l]egally-seized property may be

retained as long as the retention is reasonably related to the government's

legitimate need for it." State v. One 1986 Subaru, 120 N.J. 310, 317 (1990)

(citing United States v. Premises known as 608 Taylor Ave., 584 F.2d 1297,

1302-04 (3d Cir. 1978)); see also Lavezzi v. State, 219 N.J. 163, 178-79 (2014)

("The retention of evidence during a criminal investigation, like the seizure of

that evidence, is a law enforcement activity."). As the State correctly notes, it

"[has the right] to retain evidence pending a criminal prosecution." N.J.S.A.

2C:64-4(a).

Camarota's vehicle was legally seized as evidence of a murder and held

by the police. Given there is no dispute the vehicle was legally in police custody,

defendant does not have a Fourth Amendment claim. His argument that the

vehicle had to be returned to Camarota after the first warrant had expired is not

supported by statute, court rule, or case law. In fact, Camarota, the vehicle's

owner, maintained communication with the police regarding the retention of

vehicle and never asked for her car back. In short, there was nothing

unreasonable about the police's decision to retain the vehicle and obtain a second

search warrant upon obtaining new information because the first search had

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expired. Thus, denial of defendant's motion to suppress was not a manifest

denial of justice, nor an abuse of discretion.

III

Defendant argues the trial judge erred in his application of Gross to allow

the State to admit Camarota's prior inconsistent statements as substantive

evidence because the State did not prove that they met the special reliability

requirements. He maintains Camarota did not initially implicate him in the

shooting or identify him in any of the surveillance video that was shown to her.

He argues that she only gave her alleged prior inconsistent statements after she

was placed in a holding cell and charged with second-degree unlawful

possession of the handgun found in her vehicle. Her incarceration, according to

defendant, made the statements unreliable. Thus, the admissibility of her prior

statements violated his state and federal constitutional rights, including those

under the Confrontation Clause of the Sixth Amendment. In his pro se brief,

defendant argues he never waived federal or state constitutional rights of

confrontation and cross-examination. We do not agree.

When a witness's testimony differs from his or her own prior statement,

our evidentiary rules permit prior statements to be admitted as substantive

evidence. N.J.R.E. 803(a)(1) is designed "to limit substantive admissibility of

A-1648-18
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prior inconsistent statements . . . to those statements given in a form and under

circumstances importing special reliability." Gross, 121 N.J. at 9 (citations

omitted). Further, "when the statement is offered by the party calling the

declarant-witness, it is admissible only if . . . [it] is contained in a sound

recording or in a writing made or signed by the declarant-witness in

circumstances establishing its reliability." N.J.R.E. 803(a)(1)(A). And "when

a witness testifies at trial inconsistent with a signed or sound-recorded statement

admissible under N.J.R.E. 803(a)(1), the Confrontation Clause is not offended

by the reading or playing of the out-of-court statement to the jury provided that

the defendant has the opportunity to cross-examine the witness." State v.

Cabbell, 207 N.J. 311, 336 (2011).

The prior inconsistent "statement[] must pass the double hurdle of a . . .

hearing on admissibility and in-court cross-examination prior to a finding on

sufficiency." State v. Mancine, 124 N.J. 232, 248, 590 A.2d 1107 (1991). At a

reliability hearing, "the court should be convinced by a preponderance of the

evidence that the evidence is sufficiently reliable for presentation to the

jury . . . ." State v. Brown, 138 N.J. 481, 539 (1994). The burden is on the party

offering the statement to show its reliability by a "fair preponderance of the

evidence." Gross, 121 N.J. at 15. "The determination of the reliability of

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pretrial statements must take into account all relevant circumstances." State v.

Michaels, 136 N.J. 299, 317 (1994). The Gross Court "detailed the range of

factors that might bear on the reliability of a pretrial statement[,]" including "the

person or persons to whom the statement was made; the manner and form of

interrogation; the physical and mental condition of the declarant[;] the use of

inducements, threats or bribes; and the inherent believability of the statement."

Ibid.

If a statement is admitted under N.J.R.E. 803(a), the jury should be

instructed to consider the same kinds of factors as enumerated above when

"assessing its credibility and probative worth." Gross, 121 N.J. at 16-17. For

example, a jury "could be instructed that the witness'[s] prior inconsistent

statement under police interrogation must be carefully scrutinized and assessed

in light of all the surrounding circumstances, including [the witness's] interest

in giving the statement at that time." Id. at 17.

We discern no abuse of discretion in allowing the admission of Camarota's

prior inconsistent statements. After conducting a Rule 104 hearing, the trial

judge thoroughly analyzed all relevant Gross factors before concluding that the

statements possessed sufficient reliability to permit admission. And as the State

correctly notes, defendant was charged with witness tampering, thus, Camarota's

A-1648-18
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statements were admissible as a hearsay exception because they were "offered

against a party who has engaged, directly or indirectly, in wrongdoing that was

intended to, and did, procure the unavailability of the declarant as a witness."

N.J.R.E. 804(b)(9). The statements were properly presented to establish that

defendant threatened Camarota so that she would not testify against him.

IV

Defendant argues Brennan's testimony that he was "familiar" with the

vehicle attributed to defendant and involved in the shooting was prejudicial,

which the trial judge failed to remedy with a curative instruction to the jury to

disregard the statement. He claims a new trial is warranted because evidence of

his prior involvement with the police predisposed the jury to think he was a bad

person. In support, defendant points to case law stating that it is prejudicial to

a defendant if the jury is aware that a defendant is in pretrial custody or was

imprisoned. See State v. Harris, 156 N.J. 122 (1998) (reference to mug shot

photo arrays); State v. Porambo, 226 N.J. Super. 416 (App. Div. 1988) (evidence

that officer had previously weighed and measured the defendant). There is no

merit to the argument.

Defendant stipulated to the fact that on both August 26 and September 3,

2012, ten and three days, respectively, before the September 6 shooting, he was

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pulled over by police while driving Camarota's vehicle and was issued a motor

vehicle summons. It was perfectly appropriate for the trial judge to explain this

to the jury when the defense objected to Brennan's statement. Thus, there is no

reasonable basis to conclude that the detective's reference to his familiarity with

the vehicle produced an unjust result. See State v. Williams, 404 N.J. Super.

147, 169 (App. Div. 2008) ("[T]he factual assertions by the court constituted

stipulated facts. N.J.R.E. 101(a)(4). Furthermore, we find no basis for

defendant's contention that the responses were capable of producing an unjust

result."). Moreover, there was no intimation that defendant was held in custody

or incarcerated based on the motor vehicle summons.

Besides, defendant is barred by the doctrine of invited error from arguing

before us that the judge erred in revealing the stipulated fact to the jury. "A

party who consents to, acquiesces in, or encourages an error cannot use that error

as the basis for an objection on appeal." Spedick v. Murphy, 266 N.J. Super.

573, 593 (App. Div. 1993) (holding the plaintiff was barred from challenging

the admission of the testimony on appeal where it appeared from the colloquy

between the trial judge and the attorneys, that the plaintiff "essentially agreed"

to permit certain testimony); see also N.J. Div. of Youth and Fam. Servs. v.

M.C., III, 201 N.J. 328, 340 (2010) (holding invited error bars "a disappointed

A-1648-18
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litigant from arguing on appeal that an adverse decision below was the product

of error, when that party urged the lower court to adopt the proposition now

alleged to be error") (internal quotation marks and citation omitted).

In sum, the trial judge did not abuse his discretion by not telling the jury

to disregard Brennan's testimony that he was familiar with the vehicle associated

with defendant.

V

Defendant argues the trial judge erred in denying his motions for mistrial

that was based on the fragmented jury verdict announcements. He asserts the

judge failed to ensure that the jury understood its verdict was final when they

announced it, then discovered that there was no unanimity. He maintains that

the judge should have ensured that the jury understood its verdict was final

before it accepted the verdict. See State v. Shomo, 129 N.J. 248, 258 (1992)

("When the jury returns an interim partial verdict, the court must ensure that the

jury intended its partial verdict to be final by specifically instructing the jury

regarding the verdict's finality.").

Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having

given due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a miscarriage of

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justice under the law." Mistrials should only be granted "with the greatest

caution, under urgent circumstances, and for very plain and obvious causes."

State v. Loyal, 164 N.J. 418, 436 (2000) (citation omitted). Accordingly, trial

judges should exercise their discretion to grant a mistrial "with great reluctance,

and only in cases of clear injustice. . . . Neither trial nor appellate courts may

grant a new trial unless it clearly appears there was a miscarriage of justice."

Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005). "Whether

an event at trial justifies a mistrial is a decision 'entrusted to the sound discretion

of the trial [judge].'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v.

Harvey, 151 N.J. 117, 205 (1997)). We will not disturb the denial of a mistrial

"unless there is a clear showing of mistaken use of discretion by the trial court,"

Greenberg v. Stanley, 30 N.J. 485, 503 (1959) (citations omitted), or a manifest

injustice would result, State v. LaBrutto, 114 N.J. 187, 207 (1989).

We discern no abuse of discretion by the trial judge. A jury's initial

expression of its verdict is not binding, and further deliberation is permissible,

until the judge accepts the verdict. See Shomo, 129 N.J. at 256 ("In certain

circumstances, an interim partial verdict may assist a trial court in making

orderly and expeditious progress in adjudicating a case."); United States v.

Clainos, 163 F.2d 593, 596 (D.C.Cir.1947) (permitting partial verdicts can aid a

A-1648-18
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jury in proceeding methodically from count to count). The jury's confusion as

to the murder charge––of which defendant was acquitted––does not invalidate

its verdict for the remaining counts. We favor the State's contention that the

jury's confusion was limited to the murder counts, which is irrelevant to its

unanimity on the other counts, considering the trial judge's instructions were

proper. The judge here correctly allowed the jury to deliberate further after it

expressed its confusion about the murder charge. There is no reason to reverse

the jury verdicts, as defendant suggests, because the judge's supplemental charge

to resolve the deadlocked jury was not coercive. Accordingly, the judge was

correct in not granting a mistrial for every count when the jury was only initially

unclear on its unanimity on a particular count.

VI

Defendant contends the sentencing judge erred in not granting his request

for an evidentiary hearing to determine whether his convictions should be

reversed because the trial judge was under consideration to be appointed the

Atlantic County Prosecutor at the time of the trial and, thus, should have recused

himself from presiding over the trial. He maintains that under the Code of

Judicial Conduct, Canon 2, Rule 2.1 "[a] judge shall avoid impropriety and the

appearance of impropriety" and "[a] judge shall act at all times in a manner that

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promotes public confidence in the independence, integrity[,] and impartiality of

the judiciary and shall avoid impropriety and the appearance of impropriety."

Based upon our review of the trial record, defendant failed to present any

evidence of a conflict of interest. We therefore see no error in the sentencing

judge's decision not to grant an evidentiary hearing. Nonetheless, our ruling is

without prejudice to defendant seeking relief through a petition for post -

conviction (PCR) relief. See generally State v. Preciose, 129 N.J. 451, 459-60

(1992) (indicating that PCR is for claims beyond trial record).

VII

Last, defendant raises several challenges to his sentence. He contends his

aggregate thirty-five sentence with an eighteen-year parole disqualifier is

excessive given that he was found not guilty of first-degree murder, first-degree

conspiracy to commit murder, and possession of the alleged murder weapon. He

contends it was error to sentence him to first-degree witness tampering given

that he was charged with second-degree witness tampering in the indictment,

and there was no application by the State to sentence him one degree higher or

to amend the witness tampering charge to a first-degree crime. Defendant also

contends that the judge erred in imposing consecutive sentences for the weapon

and witness tampering crimes, particularly in light of the length of the aggregat e

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sentence imposed on him. He notes that to determine whether to impose a

concurrent or consecutive sentence, a judge should consider that "there can be

no free crimes in a system for which the punishment shall fit the crime."

Yarbough, 100 N.J. at 643.

As the State correctly points out, because defendant declined to object to

the jury instructions directing the jury to consider whether he was guilty of first-

degree witness tampering and not second-degree witness tampering as charged,

or to the jury's verdict for first-degree witness tampering, he has waived the

argument that he should have been convicted and sentenced for second-degree

witness tampering. See State v. Del Fino, 100 N.J. 154, 160 (1985) ("[A]ll

defenses and objections based on defects in the institution of the proceedings or

in the indictment must be raised before trial. Except for good cause shown,

failure to present any such defense constitutes a waiver."); see also State v.

Laws, 262 N.J. Super. 551, 562 (1993) (providing that arguments about the

grand jury must be raised at trial). Moreover, the first-degree witness tampering

conviction was justified given the facts of the case. N.J.S.A. 2C:28-5 states, in

relevant part:

Witness tampering is a crime of the first degree if the
conduct occurs in connection with an official
proceeding or investigation involving any crime
enumerated in subsection d. of section 2 of P.L.1997,

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 c.117 (C.2C:43-7.2) [including murder under N.J.S.A.
2C:11-3] and the actor employs force or threat of force.
Witness tampering is a crime of the second degree if the
actor employs force or threat of force. Otherwise[,] it
is a crime of the third degree.

There is no question that defendant's alleged threats to Camarota occurred in

connection with her cooperation with a murder investigation. Based on the

evidence presented and its credibility findings, the jury had a basis to find

defendant guilty of first-degree witness tampering. See State v. Warmbrun, 277

N.J. Super. 51, 60 (App. Div. 1994) (holding that once the jury convicts, its

verdict establishes probable cause to indict, and a purported error in the

indictment is rendered harmless.).

A mandatory extended term was required because defendant was

convicted of unlawful possession of a weapon and certain persons charges under

the Graves Act, N.J.S.A. 2C:43-6(c), which reads as follows:

A person who has been convicted under subsection b.
or d. of N.J.S.[A.] 2C:39-3 [(Prohibited weapons and
devices)], subsection a. of N.J.S.[A.] 2C:39-4
[(Possession of weapons for unlawful purposes)],
subsection a. of section 1 of . . . [N.J.S.A. 2C:39-4.1]
[(Possession of weapons during commission of certain
crimes; penalties)], subsection a., b., c., or f. of
N.J.S.[A.] 2C:39-5 [(Unlawful possession of
weapons)], subsection a. or paragraph (2) or (3) of
subsection b. of section 6 of . . . [N.J.S.A. 2C:39-7]
[(Certain persons not to have weapons or ammunition)]
. . . who, while in the course of committing or

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 attempting to commit the crime, including the
immediate flight therefrom, used or was in possession
of a firearm as defined in [N.J.S.A.] 2C:39-1[(f)], shall
be sentenced to a term of imprisonment by the court.
The term of imprisonment shall include the imposition
of a minimum term. The minimum term shall be fixed
at one-half of the sentence imposed by the court or
forty-two months, whichever is greater, or eighteen
months in the case of a fourth[-]degree crime, during
which the defendant shall be ineligible for parole.

The minimum terms established by this section shall
not prevent the court from imposing presumptive terms
of imprisonment pursuant to [N.J.S.A.] 2C:44-1[(f)](1)
except in cases of crimes of the fourth degree.

A person who has been convicted of an offense
enumerated by this subsection and who used or
possessed a firearm during its commission, attempted
commission or flight therefrom and who has been
previously convicted of an offense involving the use or
possession of a firearm as defined in 2C:44-3[(d)], shall
be sentenced by the court to an extended term as
authorized by 2C:43-7[(c)], notwithstanding that
extended terms are ordinarily discretionary with the
court.

Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple

sentences of imprisonment "for more than one offense, . . . such multiple

sentences shall run concurrently or consecutively as the court determines at the

time of sentence." N.J.S.A. 2C:44-5(a) does not state when consecutive or

concurrent sentences are appropriate. In Yarbough, the Court set forth the

following guidelines:

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(1) there can be no free crimes in a system for which
the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;

(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of violence
or threats of violence;

(c) the crimes were committed at different times
or separate places, rather than being committed
so closely in time and place as to indicate a single
period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to
be imposed are numerous;

(4) there should be no double counting of aggravating
factors;

(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense[.]

[100 N.J. at 643-44 (footnote omitted).]

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What had been guideline six was superseded by a 1993 amendment to N.J.S.A.

2C:44-5(a), which provides "[t]here shall be no overall outer limit on the

cumulation of consecutive sentences for multiple offenses." 3

The Yarbough guidelines leave a "fair degree of discretion in the

sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "[A] sentencing

court may impose consecutive sentences even though a majority of the Yarbough

factors support concurrent sentences," id. at 427-28, but the court must state its

reasons for imposing consecutive sentences, and when a court fails to do so, a

remand is needed in order for the court to place its reasoning on the record, State

v. Miller, 205 N.J. 109, 129 (2011). When a trial court imposes a consecutive

sentence, "[t]he focus should be on the fairness of the overall sentence." State

v. Abdullah, 184 N.J. 497, 515 (2005) (alteration in original).

Here, the multiple convictions support consecutive sentences based on the

sentencing judge's reasoning. The judge did not abuse his discretion, as the

sentences imposed were consistent with our sentencing guidelines and do not

shock the conscience. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State

v. O'Donnell, 117 N.J. 210, 215-16 (1989). Hence, we will not disturb

defendant's sentences.

3
L. 1993, c. 223, § 1.
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 Any arguments not specifically addressed are without sufficient merit to

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

Affirmed.

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