STATE OF NEW JERSEY v. TYRIE R. BULLOCK (17-09-2609, ESSEX 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                                NOT FOR PUBLICATION WITHOUT THE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-0537-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYRIE R. BULLOCK,

     Defendant-Appellant.
________________________

                   Submitted February 16, 2022 – Decided June 21, 2022

                   Before Judges Whipple and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-09-2609.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele E. Friedman, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Matthew J. Platkin, Acting Attorney General, attorney
                   for respondent (Lauren Bonfiglio, Deputy Attorney
                   General, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant appeals from his guilty plea convictions for first-degree

aggravated manslaughter and possession of a handgun. The prosecution arises

from a failed robbery during which one of the victims, Edgar Patricio, was shot

in the chest and killed.

      Defendant was charged by a grand jury with committing a

knowing/purposeful murder in the course of a first-degree robbery. The murder

charge was downgraded and the robbery charge dismissed pursuant to a plea

bargain.   As part of the plea agreement, defendant preserved the right to

challenge pretrial evidentiary rulings made by the trial court.

      On appeal, defendant contends that the trial court erred in denying his

Wade/Henderson1 motion to suppress out-of-court eyewitness identifications

made by his cousin and by the victim's brother; both witnessed the shooting.

Defendant further contends the trial court erred in denying his motion to

suppress statements he gave to police during a custodial interrogation.

Defendant argues that police violated his Fifth Amendment rights by reading the




1
  United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208
(2011).


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Miranda2 warnings only after he had already responded to questions pertaining

to where he lived. He also argues that the trial court erred in refusing to redact

from the videorecorded interrogation statements he made to police that

defendant contends are inadmissible under N.J.R.E. 404(b) because they relate

to other crimes not charged in the present indictment. Finally, defendant, who

was nineteen years old when the homicide was committed, contends the matter

must be remanded for resentencing so the trial court can account for a statutory

mitigating factor relating to youth, N.J.S.A. 2C:44-1(b)(14). That mitigating

factor was enacted after the sentencing hearing was convened.

       After carefully reviewing defendant's contentions in view of the record

and the applicable principles of law, we affirm the convictions and the sentence

that was imposed.

                                            I.

       In September 2017, an Essex County grand jury returned a five-count

indictment charging defendant with 1) first-degree purposeful or knowing

murder, N.J.S.A. 2C:11-3(a)(1)(2); 2) first-degree robbery, N.J.S.A. 2C:15-1; 3)

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); 4) second-degree unlawful




2
    Miranda v. Arizona, 384 U.S. 436 (1966)
                                                                            A-0537-19
                                        3
possession of a weapon, N.J.S.A. 2C:39-5(b); and 5) second-degree possession

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

      On June 28, 2018, the trial court convened an evidentiary hearing to

consider defendant's contention that the statement he gave during an

electronically-recorded   custodial   interrogation   should   be   suppressed.

Defendant argued that police failed to administer Miranda warnings before

asking him to provide his home address—a fact the State intended to elicit at

trial. In addition to his Fifth Amendment argument, defendant moved to redact

certain statements that he and the interrogating detective made during the

interrogation pursuant to N.J.R.E. 404(b) because those remarks revealed "other

crimes."

      The trial court denied defendant's Fifth Amendment suppression motion,

concluding that police were not required to administer Miranda warnings before

eliciting routine booking information.     The court thus determined that the

audio/video recording of the interrogation made pursuant to Rule 3:17 could be

played to the jury.

      The court granted defendant's application to redact from the recording

references to defendant's violation of probation and his lack of employment.

The court also redacted the detective's narrative expressing his own theory of


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                                       4
the case, and also ordered redaction of the concluding portion of the recorded

statement when defendant exercised his right to counsel.

      The court denied defendant's motion to redact a statement he made

pertaining to his membership in a particular street gang and to dealing drugs.

Defendant made the statements to explain why he would not commit a robbery

at the location where this crime occurred. The court balanced the probative

value against the risk of unfair prejudice and found those statements could be

admitted with appropriate limiting instructions.

      On August 7, 2018, and December 19, 2018, the trial court conducted a

Wade/Henderson hearing to address defendant's motions to suppress out-of-

court eyewitness identifications made by Nakia Cribb, defendant's cousin, and

William Jimenez-Dominguez, the victim's brother. The court concluded that

both identifications would be admissible at trial and that it was for the jury to

decide their reliability and the weight to be given to them.

      On April 9, 2019, defendant pled guilty to aggravated manslaughter

(Count One of the indictment, as amended to reflect the downgrade from

murder) and unlawful possession of a weapon (Count Five). The remaining

charges, including first-degree robbery, were dismissed pursuant to the

agreement. With the State's concurrence, defendant entered a conditional plea


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                                        5
pursuant to Rule 3:9-3(f), preserving his right to appeal the denial of his motion

to suppress his statement under both Miranda and N.J.R.E. 404(b), as well as his

motion to suppress the out-of-court identification evidence.

      On May 29, 2019, the trial court sentenced defendant on the aggravated

manslaughter conviction to a twelve-year term of imprisonment subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the weapons conviction,

the court imposed a seven-year term of imprisonment with a forty-two-month

period of parole ineligibility as required by the Graves Act, N.J.S .A. 2C:43-

6(c).3 The court ordered the sentences to be served concurrently and further

ordered them to run concurrently with a pre-existing Passaic County sentence

for violating the terms of his Pre-Trial Intervention (PTI). PTI was imposed

after defendant was convicted on two separate charges of third-degree

possession of a controlled dangerous substance with intent to distribute . The

court also recommended that defendant serve his sentence at a youth correctional

facility due to his age and family support. The State's brief indicates that

defendant is presently serving his sentence at Garden State Youth Correctional


3
   The Graves Act is named for Senator Francis X. Graves, Jr., who sponsored
legislation in the 1980s mandating imprisonment and parole ineligibility terms
for persons who committed certain offenses while armed with a firearm. The
term now refers to all gun crimes that carry a mandatory minimum term of
imprisonment.
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                                        6
Facility in accordance with the trial court's recommendation.           This appeal

follows.

                                             II.

      We    discern    the   following   facts     from   the   plea   hearing,   the

Wade/Henderson hearing, and the hearing on defendant's motion to suppress his

statement to police.

      On June 18, 2017 at around 5:30 a.m., Edgar Patricio, his brother William

Jimenez-Dominguez, his cousin Darwin Loja, and two friends, Juan Tenepaw

and Jonathan Cabrera, were walking home after spending time together playing

soccer and then drinking some beer. The weather was clear and the sun had

already risen. They encountered a man who approached them and demanded in

English "marijuana or money." Patricio spoke English and tried to intervene by

speaking to the assailant. The man shot Patricio in the chest and killed him.

The failed robbery and ensuing homicide was captured on surveillance video.

      Before the shooting, defendant's cousin, Nakia Cribb, was around Seventh

Street in Newark when she saw defendant, who she called "Jazz" or "Jazzie."

Cribb's mother and defendant's grandmother are sisters, and Cribb had known

defendant his whole life. She spoke to defendant for a minute before she walked

across the street.


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         Cribb saw defendant begin arguing with some men and heard defendant

say, "Give me your money. Give me your money." Cribb heard gunshots and

saw defendant shoot one of the men in the chest before running away. She heard

a man screaming for help, went over to the bleeding man, and called 9-1-1. She

told the 9-1-1 operator, "a young black man just shot a Hispanic man in the chest

[and ran away]."

         Later that day, Jimenez-Dominguez, the gunshot victim's brother, went to

the police station and gave a description of the perpetrator. He told police it

appeared that the woman who ran up and called 9-1-1 (Nakia Cribb) knew the

perpetrator. The photo-array identification procedure was conducted the same

day and was videorecorded. When police showed Jimenez-Dominguez a photo

array consisting of six photographs, he selected defendant's photo from the

array.

         Around 1:20 p.m. that afternoon, police brought Cribb to the station to

give a statement and confirm the identity of the shooter.         She described

defendant as being 6'4" tall with dreadlocks down his back. She identified a

photograph of defendant.

         Police went to defendant's house on Prospect Street in East Orange,

arrested him and transported him to the Essex County Prosecutor's Office


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(ECPO) Homicide Task Force headquarters. 4 There defendant learned he was

being charged with murder.

         The ensuing custodial interrogation was electronically recorded in

accordance with Rule 3:17.        The interrogation was conducted by ECPO

Detectives Kenneth Poggi and Eric Manns. Detective Poggi asked defendant

preliminary questions, including defendant's name, birthdate, address,

educational background, and whether he could read, write, and understand

English. The detective then administered Miranda warnings. Defendant waived

his Fifth Amendment rights and told the interrogating detectives that he was

unemployed and thought that he had been arrested for a PTI violation. When

the detective accused defendant of committing a robbery and murder, defendant

denied involvement in the crime. Defendant explained, "I don't do violent

crimes. I sell drugs. Ya'll feel me;" "I ain't gonna lie to you, I sell drugs;" and

"I'm a [Crip] . . . we saw a lot of the Bloods so we don't go nowhere."

         Defendant confirmed where he lived. He explained who he lived with,

and where he was at the time of the murder. In an apparent attempt to assert an

alibi, he said that he watches his nieces and nephews every morning and every

night.


4
    Defendant does not challenge the lawfulness of the arrest.
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      Detective Poggi explained his own theory of the robbery-homicide based

on what he saw on the surveillance videos, punctuated by occasional responses

from defendant. Approximately seventeen minutes after questioning had begun,

defendant said that he wanted to speak with an attorney.       The detective

immediately ended the interrogation.

      Defendant raises the following contentions for our consideration in his

counseled brief:

            POINT I:

            THE IDENTIFICATIONS MADE BY MS. CRIBB
            AND MR. JIMINEZ-DOMINQUEZ POSED A VERY
            SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
            MISIDENTIFICATION,   AND    THEREFORE,
            SHOULD HAVE BEEN SUPPRESSED.

                    A. THE   SHOWUP    IDENTIFICATION
                       MADE BY MS. CRIBB, A WOMAN
                       WHO WAS BLIND IN ONE EYE AND
                       ADMITTED HAVING POOR VISION IN
                       THE OTHER EYE, WAS HIGH ON
                       HEROIN AND CRACK AT THE TIME
                       OF THE INCIDENT AND THE
                       SHOWUP PROCEDURE, AND WHOSE
                       DESCRIPTION OF THE PERSON SHE
                       THOUGHT SHE SAW DID NOT
                       MATCH MR. BULLOCK, PRESENTED
                       A VERY SUBSTANTIAL LIKELIHOOD
                       OF                 IRREPARABLE
                       MISIDENTIFICATION.



                                                                       A-0537-19
                                       10
        i. A SHOWUP PROCEDURE IS
           INHERENTLY SUGGESTIVE—
           ESPECIALLY WHEN IT IS
           CONDUCTED MORE THAN TWO
           HOURS AFTER THE EVENT—
           AND     THERE     IS    NO
           "FAMILIARITY" EXCEPTION TO
           THIS GENERAL PRINCIPLE.

       ii. A PROPER ASSESSMENT OF THE
           SYSTEM    AND   ESTIMATOR
           VARIABLES REVEALS THAT
           MS. CRIBB'S IDENTIFICATION
           PRESENTED      A      VERY
           SUBSTANTIAL LIKELIHOOD OF
           IRREPARABLE
           MISIDENTIFICATION

  B. THE IDENTIFICATION MADE BY MR.
     JIMENEZ-DOMINGUEZ PRESENTED
     A VERY SUBSTANTIAL LIKELIHOOD
     OF MISIDENTIFICATION BECAUSE
     THE DEFENDANT STOOD OUT FROM
     THE OTHER PHOTOGRAPHS, THE
     WITNESS WAS UNDER THE STRESS
     OF WITNESSING HIS BROTHER
     BEING SHOT TO DEATH, AND HE
     WAS REPEATEDLY EXPOSED TO
     FEEDBACK WHEN SPEAKING TO
     ANOTHER EYEWITNESS ABOUT THE
     INCIDENT AND THE SHOOTER.

POINT II:

THE  MOTION    COURT   COMMITTED
REVERSIBLE ERROR IN REFUSING TO
REDACT OTHER BAD ACT EVIDENCE AND


                                        A-0537-19
               11
                  MR. BULLOCK'S ADDRESS FROM THE
                  CUSTODIAL STATEMENT.

                     A. THE COURT'S REFUSAL TO REDACT
                        THE PRIOR BAD ACT EVIDENCE
                        CONTAINED      WITHIN     MR.
                        BULLOCK'S           CUSTODIAL
                        STATEMENT           WARRANTS
                        REVERSAL.

                     B. MR.    BULLOCK'S    COMMENTS
                        REGARDING HIS ADDRESS FALL
                        OUTSIDE THE SCOPE OF THE
                        ROUTINE BOOKING EXCEPTION
                        BECAUSE THE DETECTIVE KNEW OR
                        SHOULD HAVE KNOWN THAT
                        ASKING ABOUT MR. BULLOCK'S
                        ADDRESS WAS LIKELY TO ELICIT
                        AN INCRIMINATING RESPONSE

                  POINT III:

                  THE LAW REQUIRING SENTENCING
                  MITIGATION       FOR       YOUTHFUL
                  DEFENDANTS DEMANDS RETROACTIVE
                  APPLICATION        BECAUSE       THE
                  LEGLISLATURE    INTENDED     IT,  AS
                  GLEANED    BY    ITS   AMELIORATIVE
                  PURPOSE AND THE LEGISLATIVE INTENT.
                  MOREOVER, ACCORDING THE STATUTE
                  RETROACTIVITY WOULD NOT RESULT IN
                  A MANIFEST INJUSTICE TO THE STATE.

      Defendant also filed a pro se supplemental letter. That letter does not

include point headings. The gravamen of defendant's pro se contentions are that



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            my motions took place in a rushed and unorganized
            way. The [j]udge was fair but in a case where a person
            is being accused of the most horrific crime and by
            default if convicted will change his/her life then,
            fairness isn't enough. While I had my Wade [m]otion,
            a [Rule] 404(b) motion was conducted and a Miranda
            [m]otion was conducted. To my understanding those
            all are separate motions that generally calls for separate
            dates. . . . Even as I was taken into custody confused
            and resistless, I wasn't read my Miranda Rights. I was
            subject to listen to narrative from a detective who isn't
            an eyewitness. He narrated what he thought happened
            from watching a foggy video and from taking
            statements from people later to be found as drug
            abusers with criminal backgrounds far more extensive
            than some drug lords.


                                      III.

      We first address defendant's contentions that the trial court erred in ruling

that the out-of-court identifications made by Cribb and Jimenez-Dominguez

would be admissible at trial. We begin by acknowledging the legal principles

governing the admissibility of eyewitness identification evidence.

      In State v. Henderson, the Court recognized "that eyewitness

'[m]isidentification is widely recognized as the single greatest cause of wrongful

convictions in this country.'" 208 N.J 208, 231 (2011) (alteration in original)

(quoting State v. Delgado, 188 N.J. 48, 60 (2006)).         The Court reviewed

confounding circumstances, including various "estimator" variables (e.g.,


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lighting conditions, distance, and stress) and "system" variables (i.e., the manner

in which police administered a photo array procedure or conducted a one-on-

one show up procedure) that influence a witness's ability to accurately identify

a culprit. Id. at 247, 289–90.

      When administering a photo identification procedure, the person

administering the procedure should include only one suspect in the array,

presented along with photos of at least five look-alikes that "generally fit the

witness' description" of the perpetrator. Id. at 251–52 (citation omitted).


             Because of the pivotal role identification evidence
             plays in criminal trials, and the risk of misidentification
             and wrongful conviction from suggestive behavior—
             whether by governmental or private actors—a private
             actor's suggestive words or conduct will require a
             preliminary hearing under Rule 104 in certain cases to
             assess whether the identification evidence is
             admissible.

             [Id. at 326. (emphasis added).]

      The threshold for suppression of identification evidence is high. In State

v. Chen, decided on the same day as Henderson, the Court recognized that

"[e]yewitness identification testimony . . . must be sufficiently reliable to be able

to prove or disprove a fact[,] and its probative value cannot be substantially

outweighed by the risk of undue prejudice or misleading the jury . . . ." 208 N.J.


                                                                               A-0537-19
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307, 326 (2011). The Court in Henderson retained the general rule that, "if after

weighing the evidence presented [at a Wade hearing] a court finds from the

totality of the circumstances that defendant has demonstrated a very substantial

likelihood of irreparable misidentification, the court should suppress the

identification evidence." Henderson, 208 N.J. at 289 (emphasis added).

      The Court made it clear that while trial courts are expected to "weed out

unreliable identifications," id. at 302, the suppression remedy is to be used

reservedly, not reflexively, or often. "It is the jury's task to determine how

reliable . . . evidence is, with the benefit of cross-examination and appropriate

jury instructions.   Chen, 208 N.J. at 328.      Only in the rare case that an

identification procedure will be so highly suggestive as to "taint the reliability

of a witness' identification testimony" will it be appropriate to bar that evidence

altogether. Ibid.

                                          A.
                                  Cribb Identification

      At the Wade/Henderson hearing, the State established that 1:21 p.m. on

June 18th—the day of the shooting—Cribb was brought to the ECPO task force

headquarters. We note that was more than two hours after the shooting. Cribb

was shown three photographs and was asked to identify the three persons



                                                                             A-0537-19
                                       15
depicted in those photos. 5 Cribb said the first photograph depicted "Rob G.,"

who was also her cousin and defendant's older brother. Cribb did not recognize

the person depicted in the second photograph. When police showed her the third

photograph, she confirmed that it depicted defendant, who she referred to as

"Jazzie." She explained that defendant was her cousin,6 and confirmed that he

was the man who walked up and shot the victim. Cribb testified that she knew

defendant his entire life and saw him "[a]lmost every day" in the neighborhood.

      Cribb acknowledged at the hearing that she had been using drugs and was

high both at the time of the homicide and during the stationhouse identification

procedure. She also acknowledged that she is blind in one eye and that her

vision out of her other eye is "poor." Her vision problems cause her to use a

walking stick so that she did not walk into things.

      After considering the applicable system and estimator variables, the trial

court denied defendant's motion to suppress Cribb's identification testimony,


5
  The State does not assert that the detectives had constructed a "photo array"
or that two of the three photographs were intended to serve as "filler" photos.
Rather, detectives were asking Cribb to identify three different individuals who
were suspected of committing the homicide.
6
  At the hearing, defendant was described as Cribb's first cousin. Cribb testified
that defendant is her mother's sister's daughter's son. As defendant notes in his
appeal brief, that would make defendant Cribb's first cousin, once removed. That
label does not change the fact that Cribb has known defendant his entire life .
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                                       16
concluding there was no substantial likelihood of misidentification. The trial

court nonetheless recognized:

            There are absolutely issues with Nakia Cribb's
            identification, in that she was using, my recollection,
            cocaine and heroin at the time of the incident; that she
            does have sight issues . . . . One eye, she was blind in
            previously and the other, she described had—having
            issues. That . . . is clearly the case. [M]y recollection
            is that she did not tell the detectives about identifiers of
            the defendant; i.e., facial, neck tattoos, and something
            that this defendant has. And—and—and there may be a
            bias that—that she has.


      The trial court found that Cribb had known defendant his entire life and

had "seen him every day for years." The court concluded that although there

were issues concerning her drug use and vision problems, those circumstances

were for the jury to consider in determining the weight to give to her

identification testimony, not its admissibility.     We believe the trial court's

findings of fact and law are supported by credible evidence in the record and we

have no reason to overturn them.

      Defendant contends that Cribb's identification was unreliable and should

have been suppressed because the detective did not show her an array with

fillers. Rather, defendant contends, the procedure was essentially a single-photo

showup identification—one that was conducted more than two hours after the


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                                       17
robbery-homicide. We agree this was essentially a single-photo lineup that in

most instances would constitute an inherently suggestive showup identification.

However, strict compliance with the procedures spelled out in Henderson for

administering a photo array was not required in this case because this was a

"confirmatory" identification.

      The detective explained that she showed Cribb a single photograph of

defendant, rather than a photo array with fillers, because Cribb and defendant

were cousins and Cribb said she knew defendant his whole life. As our Supreme

Court explained in State v. Pressley, an identification procedure is not

considered to be suggestive "when a witness identifies someone he or she knows

from before but cannot identify by name." 232 N.J. 587, 592–93 (2018) (citing

National Research Council, Identifying the Culprit:       Assessing Eyewitness

Identification 28 (2014)). By way of example, the Court observed that the

person identified "may be a neighbor or someone known only by a street name."

Id. at 593 (citing Identifying the Culprit, at 22); see also State v. Herrera, 187

N.J. 493, 507 (2006) (finding fact that defendant was not a stranger to victim

"significant, if not controlling.").

      In this instance, Cribb's relationship to and familiarity with defendant is

much closer than that needed to invoke the confirmatory identification doctrine.


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                                       18
Far from being a stranger, Cribb knew defendant from the time he was born.

Importantly, not only did she often see defendant in the neighborhood, but she

had just spoken with him seconds before the fateful encounter.          In these

circumstances, police were not required to compile and administer a photo-

array, and the failure to do so does not render the identification procedure

suggestive or unreliable.

      We add that, despite her drug use and vision problems, Cribb's account of

the robbery-homicide encounter was entirely accurate.      She described how

defendant approached the individuals, demanded money, and shot the victim in

the chest. The accuracy of the account she gave in her recorded statement is

confirmed by the surveillance video. In these circumstances, the trial court

correctly determined that her identification testimony should be heard by the

jury. See Henderson, 208 N.J. at 303.

                                     B.
                             Jimenez-Dominguez

      Because Jimenez-Dominguez's first language is Spanish, the out-of-court

identification procedure was conducted in Spanish.       The police provided

preliminary instructions.   In addition to the standard instructions, Jimenez-

Dominguez was told not to speak with anyone about his identification.



                                                                          A-0537-19
                                     19
      A detective who had no knowledge of the case served as a double-blind

administrator, see supra note 5, showing Jimenez-Dominguez six photographs,

one at a time. Jimenez-Dominguez chose the second photograph as depicting

the man who shot and killed his brother. That photograph depicted defendant.

      After reviewing the photographs, the transcript of the recorded

identification procedure, and the witness's testimony at the hearing, the trial

court denied defendant's motion to suppress Jimenez-Dominguez's identification

testimony, finding the procedure was properly conducted and not suggestive.

The court added that any questions concerning estimator variables, such as

whether the witness was sober at the time of the crime, went toward the weight

to be given by the jury to the identification evidence, not its admissibility.

      Defendant contends the identification made by Mr. Jimenez-Dominguez

was the result of an impermissibly suggestive photo array, claiming that

defendant's photograph improperly stood out from the filler photographs in the

array. Specifically, defendant argues: (1) the photo of defendant is darker than

the other photos; (2) defendant's photo is the only one where the subject's




                                                                             A-0537-19
                                       20
shoulders are exposed;7 (3) defendant's photo shows his dreadlocks mostly

pulled back;8 and (4) defendant's photo is one of only two where the depicted

individual has facial hair.9

      As we have noted, Henderson explains that filler photos should be

"lookalikes." 208 N.J. at 251. In accordance with Henderson, the Attorney

General has promulgated guidelines for administering photo arrays and lineup

identifications. See Off. of the Att'y Gen., Attorney General Guidelines for

Preparing and Conducting Photo and Live Lineup Identification Procedures 1

(2001) (Guidelines). 10 The Guidelines require "fillers who generally fit the

witness' description" of the suspect. Ibid.



7
   Based on our own review of the photos, defendant appears to be wearing a
sleeveless undershirt, whereas the other photos depict men wearing crew -neck
shirts and a collared sweatshirt/hoodie.
8
  We note the first photo also shows an individual whose dreadlocks are mostly
pulled back. Of the other four filler photographs, two show individuals whose
dreadlocks are partially pulled back and two others show individuals whose
dreadlocks are unbound.
9
  Our own review shows that four of the five individuals in the filler photographs
appear to have thin mustaches.
10
    We note that the Guidelines have recently been updated, and now provide,
"fillers should resemble the suspect in significant features, such as gender, race,
skin color, facial hair, age, and distinctive physical characteristics." See Off. of


                                                                              A-0537-19
                                        21
      We have reviewed the array and decline to substitute our judgment for

that of the trial court with respect to its composition. We also reject defendant's

argument that estimator variables cast substantial doubt upon the reliability of

Mr. Jimenez-Dominguez's identification. We are satisfied for example, that

Jimenez-Dominguez's consumption of three beers over a five-hour period did

not so affect the reliability of the identification as to render it inadmissible. We

note the statement Jimenez-Dominguez gave to police accurately described the

crime as shown in the surveillance video.

      We also reject defendant's claim that Jimenez-Dominguez's identification

was tainted by feedback from his cousin. That contention is belied by the record.

The transcript of Jimenez-Dominguez's identification of defendant shows that

he identified defendant on June 19, 2017, around 1:46 p.m. As we have noted,

police instructed him not to speak with anyone about his identification.

Jimenez-Dominguez testified that he spoke with his cousin Loja four days after

the shooting—three days after the identification—then one week later, and not

again. He testified that he never discussed his identification with any of the men

who were present at the shooting.


the Att'y Gen. Attorney General Guidelines for Preparing and Conducting Out-
Of-Court Eyewitness Identifications 3 (issued Feb. 9, 2021).


                                                                              A-0537-19
                                        22
      In any event, the trial court correctly held that it is for a jury to decide the

reliability of Jimenez-Dominguez's identification, with the benefit of cross-

examination and jury instructions that explain the relevant system and estimator

variables and the risk of misidentification.

                                        IV.

      We next address defendant's contention that manner in which ECPO

detectives conducted his custodial interrogation violated his Fifth Amendment

rights.   Specifically, defendant argues that detectives elicited information

pertinent to a potential alibi defense—where defendant lived—before

administering Miranda warnings. We discern the following facts from the

Miranda hearing that pertain to defendant's constitutional argument.

      Defendant was arrested at his home on June 22, 2018, four days after the

homicide. The custodial interrogation started at around 11:00 a.m. Detective

Poggi provided coffee to defendant, introduced himself, and asked defendant for

background information consisting of his name, date of birth, home address, and

the extent of his education. Defendant provided his name and birthdate. He also

provided his home address at a multi-family apartment building on Prospect

Street in East Orange. That was the same address at which defendant had been




                                                                               A-0537-19
                                        23
arrested. Defendant explained that he went to school up to and including the

twelfth grade, and ultimately received a GED.

       After confirming defendant could read, write, and understand English,

Detective Poggi advised defendant he had been charged with homicide and

informed him of his Miranda rights. Defendant waived his rights, writing his

initials after each right on the notification-of-rights form to acknowledge that he

understood each of them. Poggi then read the waiver portion of the form, and

asked defendant if he understood the provisions and whether they were all true.

Defendant said he understood and that "[a]ll of that is true"—meaning he was

willing to answer questions, knew what he was doing, and no threats or promises

had been made. Defendant then printed his name on the signature line.

       During his recorded interview, defendant made certain statements

acknowledging where he lived, who he lived with, and where he was at the time

of the murder. He said, for example, that he watches "the kids" every morning

and every night, referring to his nieces and nephews whom he said lived with

him.

       Poggi acknowledged at the suppression hearing that three days before the

interrogation he learned that a cab driver had dropped off a passenger suspected

of being involved in the shooting at the apartment building on Prospect Street


                                                                             A-0537-19
                                       24
in East Orange.    Poggi also knew that defendant had been arrested at his

residence on Prospect Street earlier that day. Poggi explained that it is always

standard procedure to ask basic pedigree information before starting a custodial

interrogation, including the interrogee's address, to establish the identity of the

person giving the statement.

      The trial court ruled that Miranda warnings were not required before

asking defendant where he lived. The court found that the detective routinely

asks standard pedigree questions before conducting an interrogation and that

those questions were not designed to elicit an incriminating response as

defendant contends.

      We begin our analysis by acknowledging the governing legal principles.

As our Supreme Court noted in State v. Hreha,

            [w]hen faced with a trial court's admission of police-
            obtained statements, an appellate court should engage
            in a "searching and critical" review of the record to
            ensure protection of a defendant's constitutional rights.
            See State v. Pickles, 46 N.J. 542, 577 (1966). That
            review, however, does not generally involve "an
            independent assessment of the evidence as if [the
            reviewing court] were the court of first instance." State
            v. Locurto, 157 N.J. 463, 471 (1999). Instead, an
            appellate court should typically defer to the trial court's
            credibility and factual findings, recognizing that the
            trial court's findings are often "substantially influenced
            by [its] opportunity to hear and see the witnesses and to


                                                                             A-0537-19
                                       25
            have the 'feel' of the case." State v. Johnson, 42 N.J.
            146, 161 (1964) (alteration in original).

            [217 N.J. 368, 381–82 (2014).]

      The Court in Hreha further explained,

            An appellate court's review of the trial court's findings
            is limited to confirming only that "those findings are
            supported by sufficient credible evidence in the
            record." State v. Elders, 192 N.J. 224, 243 (2007)
            (internal quotation marks omitted). If that standard is
            satisfied, the reviewing court's "task is complete[,] and
            it should not disturb the result, even though . . . it might
            have reached a different conclusion were it the trial
            tribunal." Johnson, 42 N.J. at 162 (alteration in
            original).

            [Id. at 382.]

      However, a trial court's legal conclusions are subject to de novo review.

Id. at 382 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

      It is axiomatic that a confession obtained during a custodial interrogation

may not be admitted in evidence unless law enforcement officers first informed

the defendant of his or her constitutional rights. Miranda, 384 U.S. at 444.

However, the general requirement that custodial interrogations must be prefaced

by the administration of Miranda warnings and the knowing and voluntary

waiver of Miranda rights does not necessarily apply to all questions posed to a

person in police custody. The "'routine booking question' exception . . . exempts


                                                                           A-0537-19
                                       26
from Miranda's coverage questions to secure the 'biographical data necessary to

complete booking or pretrial services.'" Pennsylvania v. Muniz, 496 U.S. 582,

601 (1990); State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div. 1991).

Because Miranda applies only where there has been police interrogation,

"booking procedures and the routine questions associated [with that process] are

ministerial in nature and beyond the right to remain silent." State v. Bohuk, 269

N.J. Super. 581, 593 (App. Div. 1994) (alteration in original) (quoting Mallozzi,

246 N.J. Super. at 515). We have held that asking an arrestee where and with

whom he lived is "ministerial in nature," and did not amount to custodial

interrogation. State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977).

      In this instance, the trial court credited Detective Poggi's testimony that

that it is his standard practice to ask basic pedigree information, including an

address, to establish the identity of the person giving the statement. We see no

reason to overturn that finding. We thus conclude there is no basis for us to find

that the detective's purpose in asking for defendant's address as part of the

pedigree information was designed or reasonably likely to elicit incriminating

information. Cf. Cunningham, 153 N.J. Super. at 354 ("The intent or purpose

of the detective in asking the questions of a defendant may be material in making

a determination as to whether defendant has been subjected to custodial


                                                                            A-0537-19
                                       27
interrogation in violation of his constitutional rights, but is only one of the

factors to be considered in analyzing the total situation surrounding the

questioning. Such an issue is to be resolved by a consideration of all the

circumstances involved.").

      But, even assuming for the sake of argument that it was improper for the

detective to pose a question concerning defendant's address before administering

Miranda warnings, any such error would be harmless in the circumstances of

this case. As our Supreme Court explained in State v. Maltese,

            To warrant reversal, defendant must show not only that
            admission of his statement was error, but that it was
            error "of such a nature to have been clearly capable of
            producing an unjust result." R. 2:10-2. In cases in
            which admitted evidence implicates a constitutional
            right, the reviewing court must determine whether the
            alleged error was "harmless beyond a reasonable
            doubt." State v. Weaver, 219 N.J. 131, 154 (2014)
            (quoting Chapman v. California, 386 U.S. 18, 24
            (1967)); see State v. Sanchez, 129 N.J. 261, 278–79
            (1992) (holding admission of confession was harmful
            error because it was "uncertain whether the error may
            have contributed to defendant's conviction").

            [222 N.J. 525, 543–44 (2015).]

      In this instance, defendant's address was not necessarily incriminating.

Nor could it be disputed. Police had independent evidence of his address, and

in fact had arrested him there before the custodial interrogation. Accordingly,


                                                                          A-0537-19
                                      28
the admission of defendant's answer, although it was given before Miranda

warnings were administered, could not produce an unjust result.

                                       V.

      We next address defendant's contention that the trial court erred by failing

to redact certain portions of the videorecorded interrogation that would be

played to the jury. Specifically, the judge ordered the State to redact Detective

Poggi's theory of the case, all references to defendant's lack of employment, and

to defendant's potential violation of PTI or probation.

      During the custodial interrogation defendant denied involvement in the

murder, explaining he does not commit violent crimes and only sells drugs. He

also explained that he was not at the location where the robbery-homicide

occurred because he had seen Bloods there, and he is a Crip.

      The judge denied defendant's request to redact defendant's references to

his gang affiliation and drug dealing, explaining that a curative instruction

would cure any risk of prejudice. The trial court also ruled that the State could

not use these statements in summation or otherwise repeat them in its

presentation to the jury.

      We begin our review of the trial court's redaction decision by

acknowledging that N.J.R.E. 404(b) generally precludes the admission of


                                                                            A-0537-19
                                      29
evidence pertaining to other crimes or wrongs, except to show "proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or absence of mistake

or accident when such matters are relevant to a material issue of dispute." In

State v. Vallejo, the Supreme Court recognized that "[o]ther crimes evidence is

considered highly prejudicial."    198 N.J. 122, 133 (2009) (citing State v.

Stevens, 115 N.J. 289, 309 (1989)). While evidence of past crimes or wrongs

may be relevant and admissible for some purposes, such evidence cannot be

introduced to show a defendant's propensity towards criminal conduct, State v.

Pitts, 116 N.J. 580, 602 (1989), or to show that he or she is a "bad person in

general," State v. Foglia, 415 N.J. Super. 106, 123 (App. Div. 2010). As the

Court explained in Vallejo, "[t]he risk involved with such evidence is 'that it

will distract a jury from an independent consideration of the evidence that bears

directly on guilt itself.'" 198 N.J. at 133 (quoting State v. G.S., 145 N.J. 460,

468, (1996)).

      We also acknowledge that "[a]lthough evidence of membership in a street

gang is not [necessarily] evidence of actual criminal activity, it is at the very

least strongly suggestive of such activity." State v. Goodman, 415 N.J. Super.

201, 227 (App. Div. 2010). We added in Goodman that "[t]he mere fact, or even




                                                                           A-0537-19
                                      30
allegation, of gang membership carries a strong taint of criminality."    Ibid.

(alteration in original) (citation omitted). Accordingly, we

            conclude[d] that N.J.R.E. 404(b) is applicable here
            because the average juror would likely conclude that a
            gang member has engaged in criminal activity. Such
            evidence has the potential to "taint" a defendant in
            much the same way as evidence of actual criminal
            conduct.

            [Ibid.]

      In this instance, the State did not propose to introduce independen t

evidence of defendant's gang membership, but rather only to introduce

defendant's own statement. That circumstance does not exempt this evidence

from the requirements imposed under N.J.R.E. 404(b). In State v. Covell, our

Supreme Court confirmed that a defendant's statement, which was admissible

under N.J.R.E. 803(b)(1), still had to pass muster under N.J.R.E. 403—that is,

its probative value must not have been substantially outweighed by the risk of

undue prejudice. 157 N.J. 554, 574 (1999); see also State v. Vargas, 463 N.J.

Super. 598, 611 (App. Div.), certif. denied, 244 N.J. 302 (2020) (noting "a

defendant's statement about a prior crime, wrong or act—even if it satisfies a

hearsay exception—must overcome the N.J.R.E. 404(b) hurdle").

      However, evidence of gang membership is not so inherently prejudicial

that it must be categorically excluded. See State v. Torres, 183 N.J. 554, 573

                                                                         A-0537-19
                                      31
(2005) (ruling evidence about defendant's gang involvement was admissible and

relevant; outlining cases in other jurisdictions that allow such testimony to show

motive); Goodman, 415 N.J. Super. at 228–30 (holding evidence of gang

membership was properly admitted under N.J.R.E. 404(b) to prove motive) . Nor

is evidence of drug dealing so inherently prejudicial that exclusion is

categorically required.   See State v. Hernandez, 170 N.J. 106, 129 (2001)

(holding testimony about other "temporally proximate" drug deals could be

admitted to counter defendant's version of events); State v. Allen, 337 N.J.

Super. 259, 269 (App. Div. 2001) (concluding testimony that murder victim

went to buy drugs from defendant admissible); State v. Green, 274 N.J. Super.

15, 31–32 (App. Div. 1994) (finding defendant's participation in drug sales

admissible in murder trial).

      In State v. Cofield, the Court established a four-part test to determine the

admissibility of other-acts evidence:

            1) The evidence of the other crime must be admissible
            as relevant to a material issue;

            2) It must be similar in kind and reasonably close in
            time to the offense charged;

            3) The evidence of the other crime must be clear and
            convincing; and



                                                                            A-0537-19
                                        32
            4) The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [127 N.J. 328, 338 (1992).]

      Importantly for purposes of this appeal, our review of a trial judge's

determination on the admissibility of "other bad conduct" evidence is one of

great deference. The admissibility of evidence at trial is left to "the sound

discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016). A trial

court's evidentiary ruling is therefore reviewed on appeal for abuse of discretion.

State v. Rose, 206 N.J. 141, 157 (2011).        Accordingly, trial court rulings

regarding other-crimes evidence made pursuant to Rule 404(b) are reversed

"[o]nly where there is a clear error of judgment." Id. at 157–58 (alteration in

original) (quoting State v. Barden, 195 N.J. 375, 391 (2008)).           However,

appellate review is de novo is when the trial court should have, but did not

perform a Cofield analysis.      See State v. Green, 236 N.J. 71, 81 (2018)

(recognizing appellate courts review de novo when the trial judge "should have,

but did not perform a Cofield analysis."); see also State v. Reddish, 181 N.J.

553, 609 (2004) (quoting Barden, 195 N.J. at 391) (noting that when the trial

court fails to analyze other crimes evidence under Cofield, "we undertake a

plenary review to determine whether the other-crimes evidence was

admissible[]").

                                                                             A-0537-19
                                       33
      In this instance, the trial court considered some but not all of the Cofield

factors. We therefore conduct our own analysis of whether the probative value

of the evidence was outweighed by its apparent prejudice.

      "To satisfy the first prong of the Cofield test—the relevancy prong—the

evidence must have 'a tendency in reason to prove or disprove any fact of

consequence to the determination of the action.'" Rose, 206 N.J. at 160 (quoting

N.J.R.E. 401). This is a "generous" standard, requiring only that "the evidence

makes a desired inference more probable than it would be if the evidence were

not admitted . . . ." Ibid. (quoting State v. Williams, 190 N.J. 114, 123 (2007));

      In this instance, after the detectives accused him of robbery and murder,

defendant admitted he was a Crip and a low-level drug dealer in an apparent

effort to convince the detectives that he did not commit the murder since it

occurred in Bloods' territory. Defendant's statements were thus relevant to a

material issue, that is, the perpetrator's identity, and defendant's opportunity and

motive.

      As to the second factor, we note that in Williams, the Court recognized

that the requirement that the "other acts" be similar in kind and reasonably close

in time, may have been pertinent to the facts presented in Cofield but "need not

receive universal application in Rule 404(b) disputes." 190 N.J. at 131. Rather,


                                                                              A-0537-19
                                        34
"[the second factor's] usefulness as a requirement is limited to cases that

replicate the circumstances in Cofield. In the instant analysis, application of

prong two serves no beneficial purpose and, therefore, we disregard it as

unnecessary." Ibid.

      Here too, the second factor seems to have only limited application to the

admissibility of a defendant's own admission that he is a gang member and drug

dealer. We add that it can be readily inferred that defendant was referring to his

status at the time of the robbery-murder and thus his admission refers to criminal

activity reasonably close in time for purposes of the second factor.

      Also as in Williams, the clear and convincing standard set forth in the

third Cofield factor is not at issue and warrants little discussion.         Ibid.

Defendant voluntarily admitted his own involvement with the Crips and dealing

drugs. The State was not required to prove that statement by independent

evidence. Indeed, the trial court barred any such additional evidence. 11




11
   We note that the trial court went so far as to prohibit the prosecutor at trial
from commenting on defendant's admission to police that he was a gang member
and a drug dealer. That precaution seems curious in view of the court's
determination that defendant's remarks are admissible since prosecutors are
generally permitted in closing argument to comment on the evidence. However,
we see no abuse of discretion in imposing that restriction on the prosecutor
                                                                            A-0537-19
                                       35
      As to the fourth Cofield factor, here, as in Williams, "[t]he key issue in

respect of this evidence is clearly the weighing of the evidence's prejudicial

effect as against its probative value." Ibid. As we have noted, the trial court

carefully considered that factor and we agree with the trial court's conclusion.

      In rendering its decision, the trial court emphasized that it would provide

a limiting instruction to ensure that defendant's remarks would not be used to

show his propensity to commit crime. In Cofield, the Court held that once

evidence is found to be admissible, "[t]he [trial] court must instruct the jury on

the limited use of the evidence." 127 N.J. at 340–41. "[T]he court's instruction,"

the Court added, "'should be formulated carefully to explain precisely the

permitted and prohibited purposes of the evidence, with sufficient reference to

the factual context of the case to enable the jury to comprehend and appreciate

the fine distinction to which it is required to adhere.'" Ibid. (quoting State v.

Stevens, 115 N.J. 289 (1989)).

      In this case, the trial court had no opportunity to draft and deliver an

appropriately tailored instruction because defendant pled guilty. We decline to

presume that the limiting instruction would have been deficient or that the jury

would not have followed it. See State v. Herbert, 457 N.J. Super. 490, 503–04

(App. Div. 2019) ("[C]ourts presume [that] juries follow instructions .").


                                                                             A-0537-19
                                       36
      In sum, we agree with the trial court that with proper instructions, t he

probative value of defendant's statement to police explaining why he did not

commit the robbery-murder outweighed the risk of prejudice.             But even

assuming for the purposes of argument that defendant's remarks about being a

member of the Crips and a drug dealer needed to be redacted from the

videorecording of the interrogation before being played to the jury, we believe

any error in failing to do so would have been harmless. 12 See Maltese, 222 N.J.

at 543–44. Defendant's references to being a Crip and low-level drug dealer

were fleeting and isolated. They did not include any violent or graphic details.

Furthermore, these fleeting remarks embedded in his interrogation must be

viewed in context with the other evidence the State would have marshalled at

trial, including the videorecording of the crime, the positive identification made


12
   As defendant notes in his appeal brief, "[w]here a defendant enters a
conditional guilty plea (as was done here) and prevails on appeal, the matter is
to be remanded to provide the defendant with the opportunity to elect whether
to withdraw the guilty plea and proceed to trial." R. 3:9-3(f); State v.
Cummings, 184 N.J. 84, 100 (2005); State v. Wright, 444 N.J. Super. 347, 367
(App. Div. 2016). We note that defendant pled guilty pursuant to a plea
agreement that allowed him to avoid a mandatory minimum thirty-year parole
ineligibility term for murder and a possible consecutive NERA sentence for
armed robbery. If defendant were to opt for a trial and is convicted of murder,
the mandatory minimum term of parole ineligibility that would be imposed is
almost three times longer that the NERA period of parole ineligibility that he is
now serving.


                                                                            A-0537-19
                                       37
by Jimenez-Dominguez, and his cousin's testimony that she not only saw

defendant fire the fatal shot but had spoken with him seconds before the

shooting.

                                    VI.

      Finally, we address defendant's contention that we must remand for a new

sentencing proceeding at which the trial court must consider a new statutory

mitigating factor that accounts for a defendant's youth. N.J.S.A. 2C:44-1(b)(14)

now includes as a mitigating circumstance that, "[t]he defendant was under

[twenty-six] years of age at the time of the commission of the offense." As we

have noted, defendant was nineteen years old when the homicide was

committed. The new mitigating factor was adopted by L. 2020, c. 110, §1 on

October 19, 2020, twenty-six months before the present crime, and eighteen

months before the sentencing hearing in this case.

      The question of whether the new mitigating factor applies retroactively is

presently before the New Jersey Supreme Court in State v. Lane, __ N.J. __.

The Court heard oral argument in February and its decision is now pending.

      We add that in the matter before us, it is clear that the sentencing court

did consider and in fact relied heavily upon defendant's youth.        Defense




                                                                          A-0537-19
                                      38
counsel's first sentencing argument urged the judge to consider defendant's

youth as a mitigating factor:

            Your Honor, I'm asking that you consider as a
            mitigating factor Mr. Bullock's youth. Tyrie was
            [nineteen] years old at the time of this offense. And,
            although State v. Zuber talks about mitigating qualities
            of youth in reference to folks younger than [eighteen],
            the social science upon which it relies deals with youth
            all the way up to about age [twenty-four]. In talking
            with Tyrie during this case, and, in reviewing the letters
            that were previously turned over to the [c]ourt, I think
            it's clear that Mr. Bullock already has many positive
            qualities, and, shows a lot of promise for the future.
            But, particularly as it relates to this case, over the past
            almost two years at this point, I have really observed
            Tyrie's thought process, and, his processing of this
            whole experience evolve, and, for him to really gain a
            longer term perspective about how to think about this
            as it relates to what happened, and, also to himself, and,
            what it means for his future.

      The assistant prosecutor acknowledged defendant's youth as well, stating:

            What—what is a shame, Judge, is that we have a young
            man here who clearly has family, has support, has
            things that a lot of defendants don't have. We've heard
            what a—what a sharp mind he has. And, regardless of
            whatever sentence Your Honor does impose upon him
            today, he is fortunately young enough that he can
            recover from this. . . . The defendant at the time of this
            offense was [nineteen] years old. He's [twenty-one]
            now, but, at the time of this offense, he—he was
            [nineteen]. So, I understand the argument with regards
            to his youth being as a mitigating factor. I understand
            as well his character, and[] attitude. The State believes
            that he genuinely is showing remorse, that his family is

                                                                          A-0537-19
                                       39
            showing remorse in this case.         He's accepted his
            culpability in this case.

      In deciding to impose a twelve-year prison term significantly below the

fifteen-year midpoint of the ten- to thirty-year first-degree sentencing range, the

judge also acknowledged defendant's young age at the time he killed the victim.

The judge further explained, "I'm going to recommend that he serve at the youth

correctional facility. And, that I think at age [twenty-one], he should not be in

a facility, even as Northern State, or, Eastern State, which is in Rahway, or,

particularly not Trenton State. That for his age, and, for his record that is so

light, that he should be in the youth correctional institute complex."

      In sum, we conclude that the trial court has already accounted for

defendant's youth and so a remand would not be needed even if N.J.S.A. 2C:44-

1(b)(14) were to be given retroactive application.

      Any arguments not addressed lack sufficient merit to warrant discussion

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

      Affirmed.




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                                         40