Opinion
DOCKET NO. A-1199-10T2 DOCKET NO. A-2942-10T2
08-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGELIQUE STUBBS a/k/a ANGELIQUE HERNANDEZ, Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULES L. STUBBS a/k/a PEPE, Defendants-Appellants.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant Angelique Stubbs (A-1199-10) (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the briefs). G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent State of New Jersey (A-1199-10) (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief). Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant Jules L. Stubbs (A-2942-10) (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief). Teresa A. Blair, Deputy Attorney General, argued the cause for respondent State of New Jersey (A-2942-10) (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Blair, of counsel and on the brief). Appellant Jules Stubbs filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Telephonically argued February 7, 2013 (A-1199-10) and Argued February 5, 2013 (A-2942-10) - Decided August 15, 2013
Before Judges Lihotz, Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0618.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant Angelique Stubbs (A-1199-10) (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the briefs). G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent State of New Jersey (A-1199-10) (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant Jules L. Stubbs (A-2942-10) (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief).
Teresa A. Blair, Deputy Attorney General, argued the cause for respondent State of New Jersey (A-2942-10) (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Blair, of counsel and on the brief).
Appellant Jules Stubbs filed a pro se supplemental brief. PER CURIAM
Defendants, Angelique and Jules Stubbs, husband and wife, separately appeal from their convictions, after a jury trial, of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(10)(b); and third-degree possession of marijuana with intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7. Angelique received an aggregate sentence of seven years, with no period of parole ineligibility. Jules received an aggregate term of ten years, with a five-year period of parole ineligibility.
Defendants will be referred to by their first name, or as "defendants" collectively.
We consider their back-to-back appeals in a single opinion because they were tried together and their appeals involve a common set of facts. We have consolidated these appeal for purposes of this opinion. Each defendant raises numerous issues in challenging their convictions, but they join in challenging the court's denial of a motion to suppress the fruits of a search of their home. Jules also challenges his sentence as excessive.
We affirm as to Jules. We remand for a hearing as to the admissibility of a currency seizure form that Angelique signed. The State argued Angelique's signature represented a claim she owned a substantial amount of cash that officers seized, which the State argued was connected to drugs. If the State does not prove that the document was properly admitted as an adoptive admission, as we discuss below, then the document shall be suppressed, the conviction reversed, and a new trial ordered. In all other respects, Angelique's conviction is affirmed.
I.
We summarize the trial evidence, and discuss the facts in greater detail in our discussion of the legal issues.
On January 8, 2007, three individuals, one of them armed, invaded defendants' home sometime after 8:00 p.m. Present were Angelique and her three children — daughters who were six and seven and son who was eleven. Angelique had recently returned home from work as a registered nurse at a hospital. Jules had left the home after Angelique arrived.
Angelique was first confronted by one of the invaders as she lay on her bed, watching television with her youngest daughter. The man asked for Daniel. Angelique responded that no one named Daniel lived at the home. The man closed the bedroom door. Angelique dialed 911 on her cordless phone, but the call was cut off because the battery died.
The same man, later identified as Joseph Houchens, returned to the room with a shotgun, grabbed Angelique firmly by the arm, and told her to come with him. Angelique told her daughter to wait in the room. Her son was in the bathroom, and her middle child was still in the kitchen, crying.
The man with the gun demanded to know where the drugs and money were located. Angelique told them she did not know about any money or drugs. Houchens grabbed Angelique by her face. She said that he told her that she better think of her kids, and stop lying. He repeatedly told her that she was making him angry. Angelique continued to profess ignorance, as the intruders forced her into the basement to continue the search. The intruders also entered the garage, and searched a refrigerator. The three intruders were tossing personal items, lifting seat cushions, and searching furniture and containers in their search. Eventually, Angelique was permitted to direct all three children to remain in the bathroom.
Meanwhile, the Millville Police Department was able to trace the dropped 911 call, and initially sent officer Jennifer Gentile, who was familiar with the Stubbses. Houchens answered the door, then immediately locked it. She also detected movement in the garage. Gentile suspected foul play. She called for backup, and Officer James Grone and Sgt. Ronald Harvey arrived. It was shortly before 9:00 p.m. Gentile knocked at the door again. Houchens had ordered Angelique to persuade the police to leave. Angelique was crying and upset.
The man who initially answered the door returned with Angelique. He had his arm around her. She appeared frightened and shaken to Gentile. She broke free of the man and rushed to the police, telling them that there were other men in the house, they had guns, and the children were inside. The man at the door tried to flee, but was quickly restrained.
The three officers then entered with their guns drawn to find and protect the children, and to arrest the intruders. Officer Grone announced the police officers' presence. Three small children exited from a bathroom and were directed to leave the house.
The officers then proceeded to search the house for the intruders. In the course of searching a child's room closet for an intruder, Grone uncovered a large bag of marijuana. During the search of the master bedroom, one suspect was found hiding in another closet. Another suspect, Thomas Wright, was found hiding beside a bed. In a search incident to arrest, the police seized $4831 from his person. Police also entered the garage, where they found a shotgun in plain view.
After the house was secured and cleared of intruders, police asked Angelique for consent to conduct a further search. She refused, and police obtained a search warrant. Pursuant to that search warrant, police removed the large bag of marijuana. It consisted of 5.7 pounds of marijuana packaged in six gallon-size plastic bags. Also seized were several items from the master bedroom closet: small sandwich bags; scented dryer sheets; empty gallon-size plastic bags; and a scale. The police also seized $218 in a bedroom bureau drawer.
After Jules was summoned home by his wife, the police Mirandized him and asked him about the drugs and money that was seized. According to Harvey, while he questioned Jules in the master bedroom, Jules nodded his head toward the children's bedroom and said, "'That stuff's mine[,]" and "I'll take it." Jules extended his arms out, as if to invite the officer to handcuff him. On the other hand, Jules declined to specify what he meant by the "stuff." Jules also denied any knowledge about the seized currency. After Harvey ceased questioning Jules, Jules volunteered that he did not want his wife in trouble and "he was taking the blame for anything."
Angelique was taken to the police station for questioning. In a recorded statement to Gentile, Angelique recounted the home invasion. She stated that Houchens had removed a "handful" of money from the bedroom closet, and then asked where the rest of the money was. Angelique stated she had no knowledge of the amount. After obtaining additional details of the home invasion, Gentile administered Miranda warnings and questioned Angelique about the marijuana and the large amount of cash found in the home. She said she was unaware of any controlled dangerous substance or large amounts of cash in the home.
As we discuss below, a redacted version of Angelique's statement was introduced into evidence.
At some point, Det. Joseph Hoydis, the evidence officer, asked Angelique to sign a form entitled "United States Currency Seizure Report," (CSR) which itemized the $4831 seized from Wright. The form identified Angelique as "claimant." Jules signed a similar form regarding the $218.
The State's witnesses were the three officers who first responded to the home invasion — Gentile, Harvey and Grone; Det. Sgt. Carl Heger, who searched the basement; Hoydis, the evidence officer; and an expert in drug distribution, Det. Dominic Patitucci. Gentile, Harvey, Heger, and Hoydis all testified that they detected a strong odor of raw marijuana in the home. Angelique testified that she detected an odor as well, but insisted none was present prior to the invasion. The State suggested that the marijuana may have been stored in the refrigerator in the garage.
In its case against defendants, the State relied on Jules's admissions; the presence in his home of almost six pounds of marijuana packaged in six one-gallon bags, and a small bag of marijuana; the presence of a scale to weigh marijuana, plastic bags to package it, and scented dryer sheets to mask the scent of it; and the large amount of cash found in the home, in denominations that Patitucci stated was common in drug transactions. Jules did not testify. Through cross-examination and argument, he attempted to suggest that his admissions were directed to the small amount of marijuana in the home. He also tried to suggest that the home invaders brought the cash and marijuana with them.
In its case against Angelique, the State attempted to discredit her claims of ignorance of the drugs in the home. The State highlighted the implausibility of keeping kitchen items like the plastic bags, and laundry items like the dryer sheets, in the master bedroom closet, as opposed to the kitchen and the basement laundry room. The State also relied substantially on the CSR, referring to it in both its opening and closing statement. The State argued Angelique acknowledged ownership of the $4831 by signing the form. The State also demonstrated inconsistencies between Angelique's statement to police and her trial testimony.
Angelique testified in her own defense and also called two character witnesses. Angelique recounted the events of the home invasion. Although she did not deny she signed the CSR, she stated she had no recollection of it, nor any explanation of its significance, explaining that she was upset and signed it because she believed her signature was required. In closing, she argued, had she known of the presence of the drugs and large amounts of money, she would have disclosed that to the intruders rather than risk her and her children's safety. She also argued that she did not understand the CSR form to constitute a claim of ownership of the $4831. Angelique also emphasized her repeated denials of knowledge of the money in her formal statement.
Before summations, the court denied a motion for acquittal, which defendants made at the close of the State's case, but asked that the court reserve decision until the close of all evidence.
During the lunch break after the court instructed the jury, but before deliberations began, a uniformed officer made a comment at a nearby deli to one of the jurors who was wearing her juror badge. He told the juror that the jury should convict the defendant. After the juror reported the incident to the judge's clerk, the judge conducted an inquiry of the juror and the jury as a whole, and concluded that the comment would have no effect on its ability to continue. The court denied motions for a mistrial.
The jury deliberated less than half a day and returned guilty verdicts on all counts. Before her sentencing, and twenty-three days after the verdict, Angelique sought a new trial based on the court's failure to individually question each juror about the comment at the deli. The court denied the motion. Angelique's sentence was based on a finding of aggravating factor three, the risk that defendant would reoffend; factor six, her prior criminal record and the seriousness of the offenses of which she was convicted; and factor nine, the need for deterrence, because it "applies in every case of this type and is given moderate weight." The court found no mitigating factors. Angelique was sentenced to seven years on the possession of a CDS with intent to distribute charge (count two); and four years concurrent for possession of a CDS with intent to distribute within a school zone (count three). The court declined to impose a parole ineligibility period. The possession of a CDS charge (count one) was merged with count two.
In his statement before sentencing, Jules apologized to the court and his wife, and stated "[s]he had nothing at all to do with" it; "she had no knowledge of anything that was going on." He blamed lawyers for his failure to "take what I should have tooken [sic]," and suggested Angelique's lawyers persuaded her not to testify against him.
The court found aggravating factors three and six applied because of his multistate criminal record, which included 33 arrests in New Jersey; indictable convictions in New Jersey and Connecticut, including unlawful restraint, throwing bodily fluid at a corrections officer, conspiracy to manufacture or distribute CDS, marijuana possession, and failure to verify his address as a sex offender; nine disorderly persons convictions in New Jersey, including multiple assaults, contempt, and marijuana possession; and a disorderly persons conviction in Georgia. The court also applied aggravating factor nine, stating it "especially applies due to the fact the [d]efendant is a repetitive offender." The court rejected defendant's argument that it should apply mitigating factors one and two, because he had a large quantity of drugs with small children in the home. The court sentenced Jules to ten years, with a five year parole ineligibility period, for the second-degree possession of CDS with intent to distribute (count two); concurrent with a five-year term, with a three-year parole ineligibility period, for the school zone charge (count three). The fourth degree possession charge (count one) was merged with count two.
We note that the judgment of conviction does not reflect the three-year parole ineligibility period, which should be corrected.
II.
Both defendants challenge the search of the closet that led to the seizure of the large amount of marijuana. Angelique argues in Point I:
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.Jules argues in his Point II:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE BAG OF MARIJUANA FOUND IN THE SMALLER BEDROOM WAS NOT DISCOVERED IN PLAIN VIEW.
Both defendants also argue the court erred in its response to the report of the uniformed officer's comment to a jury. Angelique argues in her Point V:
THE TRIAL COURT'S FAILURE TO PROPERLY INVESTIGATE THE EXPOSURE OF THE DELIBERATING JURORS TO EXTRANEOUS COMMENTS WHICH HAD THE CAPACITY TO TAINT THE JURY DENIED DEFENDANT A FAIR TRIAL.Jules argues in his Point III:
THE TRIAL COURT FAILED TO PROPERLY INVESTIGATE PREJUDICIAL COMMENTS MADE BY A CORRECTIONS OFFICER TO JURORS AND FAILED TO GRANT DEFENDANT'S REQUEST FOR A MISTRIAL, THEREBY DENYING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND BY AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10).
Angelique presents the following additional points:
POINT II - THE TRIAL COURT'S REDACTION OF DEFENDANT'S STATEMENT TO THE POLICE, WHICH SUPPRESSED DEFENDANT'S EXCULPATORY STATEMENTS IN ORDER TO PERMIT A JOINT TRIAL, DENIED DEFENDANT A FAIR TRIAL.
POINT III - THE STATE'S USE OF DEFENDANT'S SIGNATURE ON A UNIFORM CURRENCY SEIZURE REPORT FORM AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S OWNERSHIP OF SEIZED MONIES WAS PLAIN ERROR.
POINT IV - THE REPEATED REFERENCES TO THE APPROVAL OF A SEARCH WARRANT DENIED DEFENDANT A FAIR TRIAL.
POINT VI - THE TRIAL COURT UTILIZED AN IMPROPER STANDARD IN CONSIDERING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT VII - THE PROSECUTOR'S IMPROPER COMMENTS DURING HIS SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL.
POINT VIII - THE PROSECUTOR IMPROPERLY BOLSTERED HIS EXPERT'S TESTIMONY.
Jules presents the following additional points in support of his appeal:
POINT I - BECAUSE THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SEVER WITHOUT CONSIDERING WHETHER THE MARITAL PRIVILEGE REQUIRED SEVERANCE, DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN HIS WIFE TESTIFIED ON HER OWN BEHALF, THEREBY MAINTAINING HER INNOCENCE AND INCRIMINATING HIM IN THE OFFENSES. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10). (Partially Raised Below).Jules raised two additional points in a supplemental pro se brief:
POINT IV - THE ADMISSION OF THE DEFENDANT'S ORAL STATEMENTS WITHOUT A LIMITING INSTRUCTION FOCUSING THE JURY'S ATTENTION AS TO THE AMBIGUOUS NATURE OF THOSE STATEMENTS, VIOLATED N.J.R.E. 403, WHICH SPECIFICALLY PROVIDES FOR THE EXCLUSION OF HIGHLY PREJUDICIAL EVIDENCE. (Not Raised Below).
POINT V - THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
PONT VI - THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.
POINT I - THE TRIAL COURT ERRED IN NOT SUPPRESSING DEFENDANT ORAL STATEMENT AT THE MIRANDA HEARING WHERE THE EVIDENCE SHOWED DEFENDANT WAIVER OF MIRAND RIGHT WAS NOT KNOWING AND INTELLIGENT WHERE THE ARRESTING OFFICER'S NEVER INFORMED DEFENDANT PRIOR TO GIVING THE MIRANDA WARNING OF HIS TRUE STATUS AS TO WHY HE WAS BEING DETAINED AND ARRESTED UPON ENTERING HIS WIFE HOUSE ON THE DATE THE HOME INVASION HAD OCCURRED THEREBY VIOLATING DEFENDANT CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION AND A FAIR TRIAL U.S. CONST. AMEND. 5, 6 AND N.J. CONST. ART. I. PAR. 10. (Partially Raised Below).
PONT II - THE STATE FAILURE TO CORRECT SGT. HARVEY PERJURED TESTIMONY AT DEFENDANT TRIAL JURY VIOLATED DEFENDANT CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. 6, 14 AND N.J. CONST. ART. I. PAR. 10. (Not Raised Below).
III.
A.
We turn first to defendants' challenge to the trial court's order denying their motion to suppress the fruits of the search. Officer Grone was the sole witness at the suppression hearing before Judge John M. Waters, Jr. (who did not preside at the trial). He recounted the events we have already described leading to the police officers' entry into the home.
Upon entry of the garage, Grone was unaware how many intruders, and how many children were present. So, after the three children fled, he was not certain that others remained. Grone entered a child's bedroom at the end of a hallway, while Harvey and Gentile stood on either side of a master bedroom. He checked underneath the bed and observed no one. He then turned his attention to an open closet.
He observed "large piles of clothes inside the closet," about three feet high, with a white bag on top. The detective believed "a subject could hide underneath" the pile. He kicked the pile of clothes to make sure no one was underneath or behind the pile. The white bag then "rolled down and opened up," revealing "large amounts of marijuana." The marijuana remained inside the bag. He admitted he would not have been able to see the bag's contents had he not kicked the pile underneath it.
Grone did not immediately seize the marijuana because he was more concerned with the officers' safety and the effort to find the intruders. However, after the house was deemed safe and free of intruders, Grone showed the marijuana to Harvey, who sought Angelique's consent to search. When she refused, the officers sought a search warrant.
Before issuance of the search warrant, an evidence officer, Det. Hoydis, removed the several gallon-size bags of marijuana from the white bag and photographed them. The time stamp of the photographs indicated 10:23 p.m. After a judge signed the search warrant at 11:00 p.m., authorizing a search after 11:30 p.m., the marijuana was then removed from the home. The firearm in the garage was then also removed.
Jules's attorney attempted to demonstrate on cross-examination that the closet did not contain as large a pile of clothing as Grone claimed. He introduced into evidence two photographs, taken by the evidence officer. However defendants have not included the photographs in the record before us. Grone conceded that the clothing pile itself was not three feet high; rather, the clothing plus the white bag reached that height. Judge Waters found that the photographs depicted a pile of numerous pairs of shoes and perhaps clothing. With the white bag placed atop the shoes, the pile reached the bottom of numerous items of clothing hanging in the closet.
In denying the motion, Judge Waters credited Officer Grone's testimony and concluded that someone could reasonably believe under the circumstances that a person could have been hiding in the closet. The court found exigent circumstances — armed intruders in the house and children in danger — justified the warrantless search of the closet, which inadvertently uncovered the marijuana. The judge found it inconsequential that the evidence officer removed the marijuana from the white bag before the warrant was issued, as "the officers had the absolute right to seize that marijuana as soon as it came to their attention, once they had performed the duties of clearing the residence."
Sergeant Carl Heger, who had been a sergeant for two years, testified at trial that he arrived at the scene, secured the basement, and then entered the master bedroom. He detected a strong odor of raw marijuana in the kitchen.
Defendants concede that Grone and his fellow officers justifiably entered the home, and that Grone was lawfully in the child's bedroom to search for intruders. They argue that Grone's act of kicking the pile in the closet was impermissible, "because it could not be established that the pile was large enough to conceal a person." Thus, the contraband was not inadvertently discovered. We disagree.
We defer to the trial court's factual findings on a motion to suppress, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and quotation omitted). We give particular deference to the trial court's credibility findings, because the trial judge has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We discern no basis in the record to disturb Judge Waters' finding that there was a reasonably objective possibility that someone was hiding in the closet.
In view of that finding, Grone was permitted, without a warrant, to search the closet. His search, which he accomplished by kicking the bag, was justified by the emergency-aid doctrine. State v. Earls, ___ N.J. ___, ___ (2013) (slip op. at 53) (stating that, to satisfy the emergency aid doctrine, the State must establish "(1) the officer had an 'objectively reasonable basis to believe that an emergency require[d] that he provide immediate assistance to protect or preserve life, or to prevent serious injury,' and (2) there was a 'reasonable nexus between the emergency and the area or places to be searched'" (citation and quotation omitted)). Here, Grone had ample basis to believe a child may still be in danger, and armed men remained in the home, posing a danger to others, and his search was connected to meeting that emergency.
The search of the closet was also justified by the presence of exigent circumstances and probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039, 29 L. Ed. 2d 564, 584 (1971); State v. Cassidy, 179 N.J. 150, 160 (2004). Exigent circumstances may not be defined with precision, but "circumstances have been found to be exigent when they preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." Cassidy, supra, 179 N.J. at 160 (internal quotation marks and citation omitted). Pertinent factors may include: "the degree of urgency and . . . time necessary to obtain a warrant"; the risk evidence "was about to be lost, destroyed, or removed"; "the . . . seriousness of the offense involved; the possibility that a suspect is armed or dangerous; and the strength or weakness of the underlying probable cause determination." State v. DeLuca, 168 N.J. 626, 632-33 (2001) (citations omitted). Courts also consider whether police have "information indicating the possessors of the contraband are aware that the police are on their trail[.]" State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).
Applying these factors, the search was justified by the exigent circumstances exception. There were armed and dangerous home invaders at large in the home, posing a threat to the safety of others; they were aware of the police presence; and Officer Grone did not know whether children still remained in the home. See State v. Wilson, 362 N.J. Super. 319, 333 (App. Div. 2003) ("A deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search."), certif. denied, 178 N.J. 250 (2003). There was also probable cause to believe that the intruders and their weapons were in the home. See State v. Johnson, 171 N.J. 192, 214 (2002) (stating that probable cause "requires nothing more than a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place" (internal quotation marks and citation omitted)).
When the bag tumbled down, the officer was able to see the suspected marijuana in the opened bag. The police were authorized to seize the contraband because it was then in plain view. A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07 (citation omitted); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Grone was lawfully in the viewing area, searching for the intruders; his discovery of the marijuana was inadvertent because he "did not know in advance where [the] evidence was located nor intend beforehand to seize it." Bruzzese, supra, 94 N.J. at 236 (citation omitted). And, it was immediately apparent the material was suspected marijuana.
We also agree with Judge Waters that it was inconsequential that Hoydis manipulated the white bag, and arranged the gallon-size bags for photographs. The police were authorized to take the marijuana into their possession, based on the plain view doctrine.
B.
Both defendants also challenge the trial court's investigation of the police officer's comment to juror number eight. We review at some length what transpired after the juror reported the incident.
The judge advised counsel upon their return from lunch that juror number eight had reported that a sheriff's officer "approached her and said something about you've got to make sure you find him guilty." The judge inquired if counsel were aware of the incident.
Angelique's counsel stated, "It was actually [a] corrections officer and he said it to her in jest[.]" He also noted that the juror did not engage in conversation with the officer. Angelique's lawyer was confident that the officers in the deli were not talking about the case. Officer Grone apparently observed the incident as well, but did not overhear what was said. The judge's initial inclination was to talk to her.
Once the jury was seated in the courtroom, the court questioned juror number eight at sidebar:
The court: Okay. You reported something to my clerk?
Juror eight: Yeah, I just told her that it was a little awkward because we were all in the deli.
The court: Who?
Juror eight: The lawyers, myself and a correctional officer came in and I usually take this off [apparently referring to her juror badge] but I had it on and he said, are you a juror. And I said yeah and he said, make sure you find him guilty. So I didn't know if that was -
The court: Yeah. Do you think he was referring to this case or he didn't really know about the case or —
Juror eight: No, no. I don't think he knew anything.
The court: You just - did you -
Juror eight: Yeah, I'd never seen him before in my life.
The court: Did you report this to anybody else or may have talked about this with any other jurors?
Juror eight: To your helper and there was other jurors in there with me.
The court: When he said it?
Juror eight: Yeah.
The court: Do you know if anybody else heard it?
Juror eight: Just the jurors that were with me, as far as I know.
The court: Okay. So how did you take that? Did you think he was talking about this case or that he was just making a comment?
Juror eight: No. I just thought he was making a comment but I just thought it would be best to report it because they were there and I didn't know if it was a problem or not.
The court: So do you think that affects in any way your ability to be fair and impartial?
Juror eight: Not me, no.
Jules's attorney had no questions for the juror. Angelique's attorney asked the juror, "Do you have any reason to believe it might affect the other jurors who were with you?" The juror said no.
The juror revealed jurors two and thirteen were with her during the interaction. Further questioning revealed one of those two jurors was outside the deli, and juror eight revealed she discussed the comment with one juror "and then we were talking about it a little bit in the room." The court then questioned the jury, as a group, about the incident:
The court: Okay. Ladies and gentlemen, apparently you've had some discussion, not
about this case but just talking to juror number eight here.
. . . .
Did anybody here hear what was said? Okay. And others had heard them discussing it so generally, everybody knows this officer said something that was really inappropriate? Not about this case, from what I understand.
Did anybody interpret it to be anything about this case? Anybody associated with this case? You're all shaking your head no, those that were there.
Would what this officer said [a]ffect your impartiality or your ability to be fair and impartial with this Defendant in any way? Okay.
And again, this officer had nothing to do with this case? You hadn't seen him in this case before or anything like that?
And my understanding is that both defense counsel were standing in the same line you - with you, ma'am when this comment was said but . . . you didn't take it to mean anything about this case? Just sort of - was he trying to be funny or was he trying to be -
Juror eight: I guess so. I've never seen him before.
. . . .
The court: Okay. All right. My main thing is that . . . something was said about this case. So you're all indicating to me that there was nothing said about this case to you, as far as you know; right?
You're all shaking your heads no. And that the comment, if you did hear it, was not - do you believe it was meant to sway you in this case or was it just a comment?
You're - sir, you're shaking your head no. Were you part of the hearing?
A juror: I was standing outside when this occurred so the story was relayed to me immediately after.
The court: Okay, what did you hear, ma'am, if you know?
A juror: I heard everything that (inaudible).
The court: Okay. And what was that?
A juror: I don't think that he was trying to sway (inaudible). I just think he was being loud and obnoxious about it.
The court: Okay. Okay. Okay. Obviously, that's inappropriate, especially if he knew you were a juror.
Again, our main thing is that we don't have - that you weren't tainted by that or find one way or the other - any of you swayed by this conversation at all?
Do you second guess your original opinions to me that you can be fair and impartial? Okay. . . .
[(Emphasis added).]
Counsel did not have any additional questions for any of the jurors. At sidebar, however, Jules's counsel made a motion for a mistrial, but preceded it by saying, "I don't want to make a mountain out of a molehill, Judge, but I don't want to be back here on a PCR either, with the Defendant saying that I should have made a motion and I didn't." Counsel argued there was no way of knowing whether the comment would enter the jurors' deliberations, and there was an issue whether they had been influenced, although he conceded "They suggest that they have not[.]" Angelique's attorney joined in the motion.
The court denied the mistrial motion, stating:
I don't see this as a mistrial issue. I think we've cleared it up. The jurors were being very candid. We've heard what was said.
It wasn't anything about the case. It was somebody being obnoxious. We're going to find out who it is, obviously, and we'll deal with it but that's a different issue.
But I don't think this jury's been tainted in such a fact that they can't be fair and impartial. In fact, each one of them said that it's not going to affect them at all.
I understand the motion but to my mind, it's a minor issue. . . . I can understand the motion but it's sort of making a mountain out of a molehill at this point.
It wasn't anything about the case and they seem to be all on the same page with it.
In denying Angelique's motion for a new trial based on the court's failure to question each juror separately, the judge reiterated that "[t]he jurors indicated that it was an obnoxious comment meant not specifically to the case[.]"
Angelique renews her argument, and Jules also argues, that the court erred in failing to question each juror separately. Angelique argues that the judge did not make a clear record of the jurors' individual and collective responses to enable this court to conclude with certainty that every juror responded to the court's inquiries. We disagree.
The test for determining whether extraneous contacts with a juror mandates a new trial is "whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Panko v. Flintkote, 7 N.J. 55, 61 (1951). The court need not find that the extraneous matter "actually influenced the result." Ibid. The decision to grant or deny a motion for a mistrial is addressed to the sound discretion of the trial judge. State v. Winter, 96 N.J. 640, 647 (1984). In particular, whether voir dire of jurors individually is necessary to explore alleged jury misconduct lies in the sound discretion of the trial court. See State v. R.D., 169 N.J. 551, 560-61 (2001). We discern no abuse of discretion here.
A trial court "must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality" when "it becomes apparent that a juror may have been exposed to extraneous information[.]" Id. at 557-58 (citation omitted). The court must "interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558 (citation omitted). At that point, the court must determine whether the trial may proceed after excusing the tainted juror(s), or whether a mistrial is necessary. Ibid.
The Supreme Court has declined to establish a "per se" rule as to whether the court should voir dire the other members of the jury individually, and that in some situations, "the court may find that it would be more harmful to voir dire the remaining jurors because, in asking questions, inappropriate information could be imparted." Id. at 561. "A new trial . . . is not necessary in every instance where it appears an individual juror has been exposed to outside influence." Id. at 559 (citation omitted). The trial court should consider "the gravity of the extraneous information in relation to the case," as well as the jurors' credibility when responding to the potential influence of the information. Ibid.
We recognize that in State v. Grant, 254 N.J. Super. 571 (App. Div. 1992), we held a mistrial was mandated where a juror's husband, a corrections officer, told her the defendants intended to commit robbery, and the juror shared that comment with fellow jurors. We concluded the corrections officer's opinion was "capable of influencing the jury" in part because "his position as a corrections officer would lend weight to the opinion," and the "opinion went to the heart of an issue at trial." Id. at 588. Similarly, in State v. Weiler, 211 N.J. Super. 602, 611 (App. Div.), certif. denied, 107 N.J. 37 (1986), we required a mistrial where a court officer, who referred to proceedings she observed outside the jury's presence, implored a juror to find defendant guilty, demeaned defense counsel, and stated defendant's attorney was lying.
This case is different. The officer who told juror number eight to "find him guilty," was not involved in the case and had no knowledge of it. He was a correctional officer who happened to be passing through. Most important, perhaps, he did not appear to be serious. It was undisputed he made his statement in jest. Thus, on its face, it was not a comment that the jurors likely perceived as a serious one.
While the court did not explicitly state for the record the jurors' specific responses to each of his questions, the judge expressly stated everyone responded in the negative to his question whether anyone perceived the comment to pertain to this case. We also infer from the record that there were no dissents or non-responsive jurors when the court asked whether the comment would affect their ability to be fair and impartial. The judge concluded that the jurors were unanimous, stating, "In fact, each one of them said that it's not going to affect them at all." Jules's counsel agreed that the jurors suggested the comment would have no influence.
We reiterate that individual in camera voir dire is preferable. State v. Tindell, 417 N.J. Super. 530, 565 (App. Div. 2011). However, it is not always necessary. Ibid. (stating that collective questioning was adequate to determine that jurors were not exposed to news account of trial). In this case, we perceive no abuse of discretion, given the nature of the comment — one recognizably said in jest without any specific reference to the case; the person who made it — an officer with no connection or knowledge of the case; and the jurors' collective affirmation the comment did not influence them.
C.
We next consider Angelique's argument that the court committed plain error when it admitted the CSR. We agree that the court was obliged to conduct a hearing pursuant to N.J.R.E. 104(c) to determine the report's admissibility. We view the failure to do so as plain error, given the State's reliance on the CSR in persuading the jury of Angelique's guilt.
We review additional facts relevant to the CSR. As we noted, Angelique did not recall signing the CSR, nor did she recall any explanation of its meaning. The form does not indicate precisely when it was signed, although it is dated January 9, 2007. It was apparently signed at the police station. Hoydis testified "it might have been past midnight" when he obtained her signature, but the date indicates it must have been past midnight. Angelique testified she signed it in the early morning. Consequently, she signed the form after her Mirandized statement to Gentile, which concluded at 11:55 p.m. on January 8, 2007.
Angelique said she did not recall meeting with Hoydis at the police station because she was still traumatized by the events that evening. She testified, "I don't recall signing the forms that I did sign. They were — provided [to] me with forms and I signed them. I thought it was part of the process that I was required to sign them."
Hoydis testified that he obtained Angelique's signature, which was witnessed by fellow officer Carl Heger. Hoydis could not recall specifically what he told Angelique about the form, but he stated he invariably informed persons, whom he asked to sign a CSR, that his or her signature would constitute a claim of ownership of the seized funds.
[E]very time I fill one of them forms out, when I have the subject who the money is being seized from, I ask them, I say can you sign this? This is stating that you're claiming the money so that if court proceedings come or don't, you can get your money back.Although Heger testified briefly at trial about his involvement in the house search, he was not questioned about the circumstances of Angelique's execution of the CSR.
Hoydis acknowledged that the form did not explicitly state in plain English that it was an acknowledgment of ownership. He also conceded that the money itemized on the CSR Angelique signed was not seized from her. Hoydis testified he was told the money was Angelique's, and he believed Harvey directed him to obtain Angelique's signature on the form.
The CSR in this case is the equivalent of an adoptive admission. Consequently, it was incumbent upon the court to analyze it pursuant to N.J.R.E. 803(b)(2). As a statement of a criminal defendant, N.J.R.E. 803(b) required the court to determine the document's admissibility in a preliminary hearing pursuant to N.J.R.E. 104(c).
As Hoydis admitted, the document itself does not expressly state that Angelique asserted ownership of the $4831. The inclusion of the word "claimant," unaccompanied by any other explanation within the document, is vague in its meaning. The word is not highlighted, and its significance could easily be overlooked, or misconstrued. The State does not rely solely on the wording of the document itself, and instead emphasizes the context in which it was signed. It also argues that Angelique's execution of the form constituted a claim of ownership because Hoydis first informed her that her execution of the form would constitute a claim of ownership, and she allegedly assented by thereafter signing the form. Properly viewed, the State sought to use the form as Hoydis explained it as an adoptive admission, that is, "a statement whose content the party has adopted by word or conduct[.]" N.J.R.E. 803(b)(2).
In order to introduce into evidence Angelique's adoption of Hoydis's characterization of the form, the State was required to satisfy two criteria. "First, the party to be charged must be aware of and understand the content of the statement allegedly adopted." McDevitt v. Bill Good Builders, Inc, 175 N.J. 519, 529 (2003) (citation omitted). "Second, it must be clear that the party to be charged with the adoptive admission 'unambiguously assented' to the statement." Id. at 530 (quoting State v. Briggs, 279 N.J. Super. 555, 563 (App. Div.), certif. denied, 141 N.J. 99 (1995)). Moreover, the State, as the proponent of the adoptive admission, was assigned the burden of persuasion that the out-of-court statement satisfied the elements of an exception to the general rule of inadmissibility. See State v. James, 346 N.J. Super. 441, 457 (App. Div.) (stating proponent of hearsay must establish prerequisites of admissibility by a preponderance of the evidence), certif. denied, 174 N.J. 193 (2002); see also Weinstein's Federal Evidence § 801.31[2] (2d ed. 1997) (stating proponent of adoptive admissions has the burden of proving by a preponderance of the evidence "that the party's conduct manifested an intent to adopt the statement").
Had the CSR clearly stated that the signer acknowledged ownership of the itemized currency, and if there were proof that Angelique read the document before signing it, then Angelique's signature would be strong evidence of her adoption. "Ordinarily a signed statement, even if written by another in another's words, would be adopted as the party's own if he signed it, because signing is a manifestation of adopting the statement." United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002). However, the CSR contained no such statement of ownership; Hoydis allegedly imputed that meaning to the document. Also, even if Hoydis is believed, Angelique testified she felt required to sign the document and does not recall the meaning assigned to it.
In Orellana-Blanco, supra, the court held the trial court erred in admitting a signed document as an adoptive admission. Unlike here, there was no question about whether the document's full meaning was self-contained. However, the document was inadmissible as an adoptive admission because the government had failed to establish that the defendant, whose English skills were limited, actually read and understood what he signed. Id. at 1148.
The same principle applies here. There is a significant issue whether Hoydis provided the explanation, since he has no specific recollection of it, and Heger did not testify about it. There is also question whether Angelique listened to Hoydis's explanation (assuming it was given), and understood him, since she was traumatized and distracted. The State presented no evidence to pinpoint when or where Angelique signed the document, except it is clear it was after midnight after a long and tumultuous night, and Angelique was apparently in custody in the police station. There is no evidence regarding her demeanor when she signed it; nor whether she appeared to study and read it, or swiftly signed it without pause. It is also doubtful that Angelique would have signed the form to indicate her adoption, and ownership of such a large amount of currency about which, she had just told Gentile she was unaware.
We view the failure to conduct a hearing under N.J.R.E. 104 to be plain error. First, we cannot conclude the failure to conduct a hearing was of no moment. The trial record does not clearly establish that the State met its burden to support admissibility. The State did not present sufficient proofs that Angelique was "aware of and underst[oo]d" the form, and "'unambiguously assented'" to it. McDevitt, supra, 175 N.J. at 530.
Second, introduction into evidence of the CSR, as Hoydis explained it, was "clearly capable of producing an unjust result." R. 2:10-2. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)); see also State v. Kemp, 195 N.J. 136, 149 (2008) ("[W]e focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'") (quoting Macon, supra, 57 N.J. at 338)).
The proofs against Angelique were substantially weaker than they were against Jules. But for the CSR, she denied any connection to drugs and drug proceeds. Strong circumstantial evidence supported her theory of the case. She tried to call 911. Had she been aware of the location of drugs and the large amount of money, she likely would have disclosed it to the home invaders who threatened herself and her children. According to her version of the home invasion — and there was no other version — she repeatedly professed her ignorance. According to her statement to Gentile, she did direct the robbers to the "handful of cash" in the closet, but the robbers demanded the rest. Angelique claims she said she did not know where it was.
We recognize the weakness in Angelique's explanation about the drug paraphernalia in the master bedroom closet. If the bags and dryer sheets were used as designed — for food storage and laundry — they presumably would have been kept elsewhere. Angelique's trial recitation of the events of the home invasion also differed in various respects from her version given to police almost two years earlier. In her direct testimony, she omitted mention of the robbers' demand for drugs, and insisted she did not enter the garage with the robbers. Yet, a jury may have concluded that Angelique knew her husband was dealing drugs, but personally took no part in his activities and was ignorant of the details.
The CSR was a critical element of the State's case that Angelique was an active participant. Once she allegedly claimed as her own the $4831, which Patittucci opined were drug proceeds, she became a partner in the drug business. The State argued in opening:
Angelique, who you're going to see in this case, who denied on several occasions really knowing anything about the drugs or the money, signed a receipt for those monies. Even though — you're going to see her statement.
Even though in her statement she tells police, I really don't know anything about the money. I don't know how much money was there or anything like that. But she signed a very particular, itemized statement as the claimant for that money.
In summation, the State again relied on the CSR and recalled Hoydis's interpretation of the agreement, to rebut the defense's argument that Angelique, who was a registered nurse, was an innocent spouse.
Does that mean she can't be a drug dealer? . . .The State returned to the form later in summation, arguing that the money she admitted in her statement was removed from the closet, was the money itemized in her CSR, and not the $218 in the CSR Jules signed. In sum, absent the CSR, there is reasonable doubt whether the jury would have reached the same result.
She's smart enough to know better but she engaged in this and why? That brings us to our next point; the third admission, if you will. Two from Jules; one from Angelique.
. . . .
Both Detective Hoydis and Harvey explained what this form was for. As you can imagine, when you seize money, cash, it gets to be a little sticky so you have to make sure the i's are dotted and t's are crossed.
The suggestion is that it was not explained to her when everything else was?
No. Ask yourselves this and I'm sure you have.
. . . .
It's called greed, ladies and gentlemen. The lure o[f] money. I don't know anything but if you're putting this in my face, I'm going to sign it. $5,000 worth of cash. It's greed.
That money was broken down and Detective Patitucci went through all that[.]
However, it would be premature for us to reverse Angelique's conviction. Rather, we remand to the trial court to conduct a Rule 104(c) hearing in accord with our decision. If the trial court determines that the State has not met its burden to establish the CSR was admissible as an adoptive admission, then a new trial shall be ordered. On the other hand, if the court is persuaded that Angelique adopted Hoydis's explanation of the form, then the evidence was properly presented to the jury, and reversal would not be warranted. See State v. Kelly, 61 N.J. 283, 294-95 (1972) (where there was insufficient proof that defendant's confession was voluntary, the Court remanded for a hearing regarding voluntariness, and required reversal and a new trial only if the trial court determined the confession was not voluntary); State v. Herrera, 385 N.J. Super. 486, 500 (App. Div. 2006) (remanding for a hearing, but requiring reversal and a new trial only if the trial court determined that defendant was denied his right to appear in appropriate civilian clothing).
D.
We have carefully reviewed Angelique's and Jules's remaining points in light of the applicable law and facts, and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We comment briefly on Jules's argument that the court erred in denying his motion to sever his trial from his wife's, and his challenge to his sentence.
In seeking a severance, Jules argued that his wife's prior statements inculpated him. He argued that if Angelique did not testify, use of her statements would create a Bruton issue; in other words, it would violate his confrontation rights as recognized in Bruton v. United States, 391 U.S. 123, 132, 88 S. Ct. 1620, 1625-26, 20 L. Ed. 2d 476, 483 (1968) ("A defendant may be prejudiced by the admission in evidence against a co- defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand." (citation and quotation omitted)).
Judge Richard J. Geiger, who did not preside at trial, denied the motion. The decision to grant or deny a severance is left to the sound discretion of the trial court. State v. Sanchez, 143 N.J. 273, 283 (1996) (citations omitted). We discern no mistaken exercise of discretion here.
Relying on State v. Brown, 118 N.J. 595 (1990) and State v. Johnson, 274 N.J. Super. 137 (App. Div. 1994), the court found the potential conflicts in defendants' stories did not constitute "core antagonism." He also determined their defenses were not "mutually exclusive." The court also found Jules did not satisfy the test under Sanchez, supra, and therefore was not entitled to severance so that he could use Angelique's testimony in his trial. Judge Geiger reasoned Angelique did not indicate the contraband belonged to her, and instead maintained she did not know anything about the confiscated drugs or money. Those statements were not substantially exculpatory to Jules, and there is no indication she would exculpate her husband at trial if he were to be tried first. To comply with Bruton, the court ordered redacted an unrecorded statement by Angelique, "I don't get involved with what my husband does"; and her statements to the effect that the money taken by the invaders must have belonged to her husband. In any event, we note Jules suffered no limitation on his confrontation rights because Angelique testified and was subject to cross-examination.
Although Jules sought a severance before trial because of the prejudice he would suffer if his wife did not testify, on appeal he presents the newly minted argument that he was prejudiced because his wife did testify. He argues her testimony violated his spousal privilege.
The argument lacks merit. In relevant part, N.J.R.E. 501(2) states, "The spouse . . . of the accused in a criminal action shall not testify in such action except to prove the fact of marriage or civil union unless . . . such spouse or partner consents[.]" In other words, an individual spouse, in this case Angelique, was permitted to consent to testify. Jules had no privilege to preclude her testimony.
The consent of both spouses was required in the pre-1992 version of the privilege, but the rule was changed because it was seen as "frustrating justice." Biunno, Weissbard & Zegas, N.J. Rules of Evidence, comment 2 on N.J.R.E. 501 (2013); see also State v. Mauti, 208 N.J. 519, 533-35 (2012) (discussing evolution of the privilege). Jules's reliance on pre-1992 cases is thus to no avail. Although we have addressed the merits of Jules's argument, defendant also waived any privilege claim by failing to object to Angelique's testimony. See State v. Ospina, 239 N.J. Super. 645, 654 ("If a defendant does not object to spousal testimony at all, the defendant has surely waived the objection."), certif. denied, 127 N.J. 321 (1990)
--------
Finally, we discern no error in the court's sentence of Jules. In reviewing a sentence imposed by a trial court, we must (a) determine if the sentencing guidelines were violated; (b) review the aggravating and mitigating factors found to determine whether the court's consideration of those factors was based upon competent credible evidence in the record; and (c) if the court imposed a sentence in accord with the statutory mandates, whether the sentence was clearly unreasonable so as to "shock the judicial conscience." State v . Roth, 95 N . J . 334, 364-65 (1984). We do not substitute our judgment for the trial judge's. State v . O ' Donnell, 117 N . J . 210, 215 (1989).
Reviewed under these standards, we are satisfied the trial court appropriately weighed the aggravating factors. We also discern no error in the court's rejection of defendant's argument that mitigating factors one and two applied, see N . J . S . A . 2C:44-1b(1) (pertaining to conduct that neither caused nor threatened serious harm), and -1b(2) (pertaining to instances where defendant did not contemplate that his conduct would cause or threaten serious harm). See State v . Rivera, 253 N . J . Super . 598, 606 (App. Div.) ("We are still astounded that in a drug distribution case, a defendant can state that mitigating factors should have been that the conduct did not cause or threaten serious harm, or that defendant did not contemplate that such conduct would cause or threaten serious harm."), certif. denied, 130 N.J. 12 (1992), abrogated on other grounds by State v. R.B., 183 N.J. 308 (2005). Finally, particularly in view of Jules's extensive prior criminal record, the court's sentence does not "shock the judicial conscience," Roth, supra, 95 N.J. at 365, and we discern no basis to disturb it.
Affirmed as to Jules, Docket No. A-2942-10. Remanded for further proceedings consistent with this opinion as to Angelique, Docket No. A-1199-10.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION