Summary
In State v. Gregorio, 2015 WL 1860802, at *6 (N.J. Super. Ct. App. Div. 2015), the court concluded that earlier incidents of stalking and threats were admissible as 404(b) evidence to show "a continuous series of events," motive and intent, and were not unfairly prejudicial in a subsequent murder and arson case.
Summary of this case from Garrison v. StateOpinion
DOCKET NO. A-5383-11T1
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROMULO GREGORIO, a/k/a, ROMULO A. GREGORIO, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-02-0334. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Romulo Gregorio appeals from his conviction by a jury on charges including murder and arson and his sentence of fifty years imprisonment. We affirm.
I.
On September 1, 2009, Jersey City firefighters found the body of Christine Mariano laid out on a bed in a room that had been intentionally set on fire. The victim was the twenty-year-old daughter of Clarissa Mariano, who had been dating defendant and had recently ended their relationship. The police quickly developed defendant as a suspect because of his numerous unwanted text messages to and threats against Clarissa Mariano and his presence at the scene of the fire. He was arrested the same day.
In February 2010, a Hudson County grand jury returned a four-count indictment charging defendant with: (count one) murder of Christine Mariano, N.J.S.A. 2C:11-3(a)(1) or (2); (count two) second-degree aggravated arson of the house, N.J.S.A. 2C:17-1(a)(2); (count three) fourth-degree stalking of Clarissa Mariano, N.J.S.A. 2C:12-10(b); and (count four) third-degree terroristic threats against Clarissa Mariano, N.J.S.A. 2C:12-3(a). Before trial, defendant moved for severance of the murder and arson charges from the stalking and threats charges. The trial court held a hearing and denied defendant's motion, reasoning that evidence of stalking and threats would be admissible as relevant to motive for the murder and arson even if the latter charges were tried separately. Defendant's trial was held over seven days in January and February 2012. The jury found him guilty of all four counts.
The jury heard the following evidence. Some ten years before the homicide, defendant met Clarissa and her husband through a bowling league and became a friend of the family. He came to know all four of the Mariano children, who were adults at the time relevant to the charges. Defendant went by the nickname "J.R."
Meaning no disrespect to the Mariano family, we use first names in this opinion to facilitate the reader's identification of different family members.
Clarissa's husband died in March 2008. Clarissa and some family members moved to a house in Jersey City that was within walking distance of defendant's home. Clarissa lived on the second floor of her Jersey City house, her son Christopher lived with his wife and child on the first floor, and Clarissa's sister lived on the third floor. In 2009, the youngest of the children, Christine, graduated from culinary school in Florida and moved in with her mother on the second floor.
Clarissa and defendant had begun dating in late 2008, but the relationship quickly faltered. Clarissa wanted defendant to pursue an education, get a job, and follow their religion. Defendant did not comply with her wishes. After a series of temporary breakups, Clarissa ended the dating relationship permanently during the first week of August 2009. Afterwards, defendant would wait at the end of her block and approach her "practically every day." Clarissa rebuffed him repeatedly, but defendant refused to accept her decision.
Defendant called and sent many text messages to Clarissa each day in August 2009, totaling more than 300 texts through August 25th, at which time Clarissa changed her phone number. The messages expressed his desperation and anger about the breakup and his wish that she would suffer as he was suffering. When she told him to stop, he texted back that he would "not stop until one of us dies."
In mid-August, Christine was outside walking her dogs and talking on her cell phone to her boyfriend, Brandon Bigham, who lived in another state. Bigham had spent time in the company of the Mariano family and defendant, and so, he was familiar with defendant's voice. During the mid-August telephone call, Bigham heard Christine say, "that's weird, I see J.R." According to Bigham's testimony, he then overheard defendant say, "if I don't get to talk to your mom, I'll burn the house down . . . ." Uncertain of defendant's exact words, Bigham added, "or something like that." Bigham did not report what he heard to the police or anyone else at the time because he thought Christine and her mother would deal with it themselves.
When Clarissa decided to change her home phone number and all of the cell phone numbers on the family's plan, Christine persuaded her not to change Christine's cell phone number because she wanted to remain in touch with her out-of-state friends. Defendant then began calling Christine as a way to reach Clarissa.
During August 2009, defendant attempted several times to enter Clarissa's house although he was not welcome. On one occasion when Clarissa returned from church, Christine was outside and frantically pulled her into the house because defendant was waiting outside. Christine then sent her brother Christopher out to confront defendant. After a tense but muted exchange between the two men, defendant left.
On the morning of September 1, 2009, Clarissa left for work early in the morning but first saw Christine briefly and spoke to her. At 7:36 a.m., Clarissa sent a text message to defendant asking "what he was up to." Clarissa testified at the trial that she sent this message because she "had that fear that it was just too quiet, nothing was going on, and [she] really wanted to know what he was up to." Defendant did not respond to Clarissa's text until later that day.
Meanwhile, Christopher and his wife also went to work, and Clarissa's sister was the last to leave the Jersey City house that morning, activating the house alarm as she left. Bigham called Christine at about 10:00 a.m. and woke her from her sleep. He was on the phone with her when he heard the doorbell ring at Christine's house. He then overheard Christine speaking with defendant over the door intercom. He heard defendant say, "I have something to give your mom," and Christine answered, "give it to me and I'll give it to her." At that point, the phone call disconnected without Christine saying goodbye. Bigham never spoke to Christine again.
Near mid-day on September 1, 2009, defendant called Clarissa on her new cell number, which she testified she had not realized he would have as a result of the text she sent earlier that morning. During the conversation, Clarissa heard hammering noises. Defendant said he was fixing a roof leak.
In his summation to the jury, the prosecutor argued that the hammering sounds Clarissa heard were the loud noises of construction work at the house next to her house, thus corroborating the prosecution's contention that defendant was in Clarissa's house in the middle of the day on September 1.
When Clarissa returned home from work on September 1, she noticed that Christine's car was parked outside although she expected Christine to have left by then to start her 4:00 p.m. work shift in a restaurant. As Clarissa stepped out of her car, defendant greeted her. He said he was not going to hurt her; he was there to help Clarissa with her bags. She refused his offer. When Clarissa approached the house, she heard the security system saying the word "fire." Defendant asked Clarissa to give her house keys to him. He opened the door, and she followed him into the house.
Defendant and Clarissa searched the house for fire and for Christine. Christine was not in the kitchen, in her room, or in the bathroom. Defendant released Christine's dogs from a balcony, which was an indication to Clarissa that Christine must be in the house because she would not leave her dogs outside on the balcony when she was not home. Clarissa went to her own room and was surprised to see her door closed. She had trouble opening the door, and when she did, the room was filled with black smoke. Defendant pulled Clarissa outside by her clothing, saying at the same time, "I'm so sorry . . . if Christine is there."
Construction workers at the house next door called 911. Clarissa wanted to call her children but did not have her cell phone. Defendant handed her a cell phone that Clarissa recognized as Christine's phone. Clarissa asked him where he got the phone, and defendant said he had just found it.
Firefighters arrived and put out the fire. In Clarissa's bedroom, lying face up on the bed, they found Christine's charred body. Later, an autopsy revealed that Christine had been killed before the fire started. There was no evidence of smoke in her lungs or bronchial tubes. She had a traumatic injury to the back of her head and evidence that her throat had been compressed. The medical examiner concluded that Christine had been killed by strangulation but could not determine a time of death. No DNA other than her own was found on Christine's body, thus negating a theory that she had been sexually assaulted. There was no evidence of theft from the home.
Police and fire investigators concluded the fire had been deliberately set at two locations in the bedroom, on the bed under Christine's legs and in a closet. Evidence of acetone, a flammable substance commonly found in nail polish remover, was detected in the area where the fire originated on the bed. The investigators found a cigarette lighter discarded in a waste basket in the bedroom. A smoke alarm was on the floor in the hallway, and it appeared to have been removed from the ceiling. Also, what appeared to be the remains of an open bible were found on the bed.
Later that night, defendant was arrested at the scene of the fire. No cigarettes were found on defendant's person, but he was known to be a smoker, and he had a lighter in his possession when he was arrested.
At the trial, the prosecution placed in evidence a report of extracted cell phone data that confirmed the times of calls reported by the witnesses and also included transcribed text messages defendant and Clarissa exchanged during August 2009. Most of Clarissa's texts asked defendant to stop contacting her. Many of defendant's texts to Clarissa were written in Tagalog, a language that both understood. Language expert Chris Masaoay translated the texts into English and was called as a witness by the prosecution to read them for the jury.
In the texts, defendant tried desperately to persuade Clarissa to resume their relationship while at the same time ruthlessly berating her for having a "heart of stone" and for hurting him. In one of the earlier August 2009 texts, defendant wrote:
The distance that you want me to give you for three months, just one day that I cannot speak to you, seem like I am losing my mind. Why do you not answer, Clare? Is that what you want to happen that I be seen by your children as crazy? Answer me, Clare, even just once. Give me a good reason not to be angry with you. . . .His next text message contained a statement that might be read as an ambiguous threat:
I know how the wheel of life is sometimes. You are at the top. You are at the top but once you get to the bottom, you will feel the pain, Cha, that you brought me.
Defendant used the nicknames "Clare" and "Cha" for Clarissa.
A recurring theme of the texts was that defendant believed Clarissa had treated him "like a dog" or "a pig," and he would never forgive her. He implored her to resume the relationship, but he also repeatedly called her an "animal" and wished bad things would happen to her so that she would feel the hurt he felt. An example is one in which defendant said:
I hope that karma will get you back for what you did to my life. You treated me like a pig, you used me like you are an animal, Cha. I thought you will be happy when I brought Tini home. This is how you repaid me. You are shameless. You're an animal. I hope that gets you back, animal.In yet another text, defendant wrote:
I will only stop, Cha, when you get sick and have many problems in your life and get what you deserve in life. You are not in my place, try it, you will just go crazy. I will just laugh when one day you get karma in your life. Perhaps now you are hurt with what I told you. You are not finished yet, Cha, I will only rest when one of us is dead.
Defendant had helped in Christine's move from Miami to Jersey City. Christine's nickname was "Tini."
Defendant did not testify at the trial. The defense called two police witnesses and elicited some minor testimony from them about the room where Christine was found and a police interview of the boyfriend Bigham.
In summation, defense counsel argued that the prosecution failed to prove beyond a reasonable doubt that defendant committed murder or set the bedroom on fire. Counsel argued that defendant was not violent, that he had no motive to hurt Christine, and that Bigham was not a credible witness. In his summation, the prosecutor argued that defendant killed Christine as retaliation for Clarissa breaking up with him and because Christine interfered with his attempts to contact Clarissa. The prosecutor also argued that defendant tried, unsuccessfully, to cover up that Christine had been murdered by setting the bedroom on fire. Defendant then allegedly played the role of a family friend and hero in entering the house and attempting to rescue Christine. As stated previously, the jury found defendant guilty of all four charges.
At defendant's sentencing in April 2012, the court noted that defendant had no previous contacts with the criminal justice system and thus found applicable mitigating factor seven, the absence of a prior criminal history. N.J.S.A. 2C:44-1(b)(7). The court found only aggravating factor nine applicable to the sentence, the need to deter defendant and others from committing such crimes. N.J.S.A. 2C:44-1(a)(9). The court determined that the aggravating factor outweighed the mitigating factor in the circumstances of this case and sentenced defendant to fifty years in prison for the murder. Because the No Early Release Act, N.J.S.A. 2C:43-7.2, applies to the sentence, defendant must serve forty-two-and-a-half years in prison before he becomes eligible for parole. On the other three counts of conviction, the court imposed the maximum prison terms permissible, but all the sentences to run concurrently with the sentence on the murder conviction. The sentence also includes statutorily required terms of parole supervision after release from prison and monetary penalties.
On appeal, defendant argues:
POINT IWe find no merit in any of these arguments.
THE COURT ERRED IN FAILING TO PROVIDE THE JURY WITH A LIMITING INSTRUCTION CONTRASTING THE PERMITTED AND PROHIBITED PURPOSES FOR WHICH THE JURY MIGHT USE THE EVIDENCE OF J.R.'S HISTORY OF STALKING AND THREATENING CLARISSA.
POINT II
THE TRIAL COURT ERRED IN ADMITTING BRANDON BIGHAM'S TESTIMONY ABOUT DEFENDANT'S PRIOR THREAT TO BURN DOWN THE MARIANO HOME.
POINT III
THE FIFTY-YEAR TERM IMPOSED ON DEFENDANT, A 40 YEAR-OLD MAN WITH NO PRIOR RECORD, WAS MANIFESTLY EXCESSIVE AND MUST BE CORRECTED.
II.
Defendant makes a novel argument that it was plain error for the trial court not to give a limiting instruction to the jury about how it could use the evidence of stalking and terroristic threats in its consideration of the murder and aggravated arson charges. At the trial, defense counsel did not request such a limiting instruction and did not object to the challenged evidence except in conjunction with his pretrial motion to sever the indictment. Although defendant does not contend on appeal that the trial court erred in denying his severance motion, he now argues that evidence of defendant's stalking and threats should have been treated in the joint trial of all counts under the provisions of N.J.R.E. 404(b). He contends the trial court was required to give the jury a limiting instruction that it could not use evidence of stalking and threats to conclude that defendant had a disposition to commit crime and therefore murdered Christine and set the bedroom on fire.
Evidence rule 404(b), however, does not apply to the challenged trial evidence in this case. The rule provides in relevant part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such
evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b).]
When Rule 404(b) controls the admission of evidence, the court must apply the four-part test established in State v. Cofield, 127 N.J. 328, 338 (1992). In addition, the court must give the jury a carefully formulated limiting instruction on the proper use of such evidence of uncharged wrongful conduct of the defendant. Id. at 340-41. Preferably, such a limiting instruction should be given both at the time the evidence is disclosed to the jury and at the end of the case. See State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000).
The Cofield test for admission of other crimes or wrongs evidence has been modified through subsequent decisions to account for varying factual circumstances. See, e.g., State v. Lykes, 192 N.J. 519, 535-37 (2007); State v. Hernandez, 170 N.J. 106, 119-26 (2001). As originally formulated, the Cofield test is that:
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
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
In this case, N.J.R.E. 404(b) did not control admission of the challenged evidence once the court decided that all the charges would be tried jointly. Stalking and terroristic threats were charged crimes for the jury's consideration and not "other crimes, wrongs, or acts." The jury was not exposed to evidence of uncharged crimes to prove "defendant's criminal disposition as a basis for proving guilt of the crimes charged." State v. Koskovich, 168 N.J. 448, 482 (2001). A limiting instruction such as the model jury charge for Rule 404(b) evidence would only have confused the jury with its several references to "other crimes, wrongs, or acts." See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (2007).
The evidence of the text messages and other contacts initiated by defendant was directly admissible as proof of the third and fourth counts of the indictment. In addition, it was admissible as part of the State's proof of a sequence of acts that allegedly led directly to defendant's intrusion into Clarissa's house on September 1, 2009, and the resulting homicide of Christine and burning of the house. In State v. Rose, 206 N.J. 141, 179 (2011), the Court held that a threshold determination must be made before applying Rule 404(b) either to admit or to exclude evidence: "whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403."
N.J.R.E. 403 states: "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
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The trial court aptly described the stalking and threats, which were close in time to the murder and arson, as tending to prove a "continuous series of events . . . . which led to the homicidal act and concealment by arson." The stalking and threats were highly relevant to defendant's motive and state of mind that led to the murder and arson. See State v. Calleia, 206 N.J. 274, 293 (2011) ("Case law and treatises have recognized the special role of motive evidence and its unique capacity to provide a jury with an overarching narrative, permitting inferences for why a defendant might have engaged in the alleged criminal conduct."); State v. Carter, 91 N.J. 86, 102 (1982) (Motive evidence aids "the jury, particularly in a case resting upon circumstantial evidence, in determining who the person was who committed the crime.").
In the pretrial hearing on the question of whether the murder and arson charges should be severed for trial, the court was correct in analyzing the stalking and threats evidence under Rule 404(b). See State v. Pitts, 116 N.J. 580, 601-02 (1989). Once the court determined that the evidence would be admissible in support of the murder and arson charges, the standard for determining its admissibility in the joint trial was controlled by N.J.R.E. 403, not N.J.R.E. 404(b).
Defendant relies on State v. Krivacska, 341 N.J. Super. 1, 37-44 (App. Div.), certif. denied and appeal dismissed, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), as precedent for his contention that a limiting instruction was nevertheless required although the evidence pertained to crimes charged in other counts of the jointly tried indictment. The facts of Krivacska, however, are distinguishable. In that case, separate sexual offenses against two different child victims were charged in a single indictment and tried together, but the separate charges were not continuing acts that constituted a single course of conduct against the same victim. Id. at 11-19. The trial court in Krivacska ruled that evidence of the defendant's sexual assault of each victim was relevant under N.J.R.E. 404(b) as proof of his opportunity to commit the offenses in his private office against the other victim. Krivacska, supra. 341 N.J. Super. at 41. In this case, there were two victims, Christine and Clarissa, but the crimes and the victims were related. The State alleged the murder of Christine followed by the arson were directly the result of defendant's desperation and anger and his failure to undo the breakup with Clarissa through his earlier stalking and terroristic threats.
As stated in Krivacska, it might have been appropriate to tailor and expand the standard jury charge the trial court did give at the end of the case instructing the jury that the four counts of the indictment must be evaluated separately. See id. at 41-42. In conformity with the model jury charge, the court instructed the jury that each count of the indictment is a separate offense and "defendant is entitled to have each considered separately by the evidence which is relevant and material to that particular charge . . . ." See Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (2014). Had defense counsel requested a more elaborate instruction tailored to the specific evidence of stalking and threats the jury heard, the court would have been well-advised to grant such a requested instruction if worded reasonably. But no such request was made, and the absence of such an instruction did not constitute plain error under Rule 2:10-2 that leads us to reverse defendant's convictions. See Krivacska, supra, 341 N.J. Super. at 42-44.
III.
Next, defendant asserts the trial court wrongly admitted Bigham's testimony that he overheard defendant say, "if I don't get to talk to your mom, I'll burn the house down . . . ." Defendant argues this evidence should have been excluded as irrelevant under N.J.R.E. 401 to the murder and arson charges because it was not probative of defendant's alleged intent to start a fire for the purpose of covering up the homicide of Christine, which was the prosecution's theory during the trial. He adds that Bigham's testimony in that regard was unduly prejudicial and should have been excluded under N.J.R.E. 403. He argues further that a limiting instruction in accordance with N.J.R.E. 404(b) should have been given to the jury for its use of that testimony on the murder and arson charges. We are not persuaded by defendant's arguments.
Preliminarily, Bigham's testimony did not violate the hearsay rule because statements of a defendant are not hearsay. See N.J.R.E. 803(b)(1) (statement by a party-opponent). Defendant's alleged statement was highly relevant to his state of mind near the time of the homicide and murder. Burning down a house is not a typical response when one is angry about another person's conduct. The evidence had "a tendency in reason," see State v. Burr, 195 N.J. 119, 127 (2008), to prove that defendant had the requisite state of mind to commit such a crime a short time after Bigham allegedly heard the statement.
With respect to application of Rule 403, the trial court's balancing of factors "is subject to the abuse of discretion standard, which sustains the trial court's ruling 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Lykes, supra, 192 N.J. at 534 (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We find no abuse of discretion in the court's ruling under Rule 403.
Defendant argues that Bigham was not a credible witness, but his credibility was a matter for the jury to determine. Not only did the trial court instruct the jury with respect to issues raised about Bingham's credibility, it also instructed the jury to consider with caution whether or not defendant actually made the damaging oral statement and to "recognize the risk of misunderstanding by the hearer, or the ability of the hearer to recall."
In addition, as required by N.J.R.E. 104(c), the court instructed the jury: "If after consideration of all these factors, you determine the statement or statements were or were not actually made by the defendant . . . or that the statement is not credible, then you must disregard the statement." See Model Jury Charge (Criminal), "Statements of Defendant" (2010). Thus, acceptance or rejection of Bigham's testimony was fully and appropriately in the hands of the jury.
A trial court's ruling on the admission of evidence is "entitled to deference absent a showing of an abuse of discretion," which is to say, "a clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks omitted). There was no error of judgment in admitting Bigham's testimony and permitting the jury to consider its credibility and probative value.
IV.
Defendant contends his fifty-year prison term is excessive because the court failed to give enough weight to the absence of any prior criminal record, placed inappropriate weight on the need to deter such crimes, and failed to consider that defendant's offenses were the result of circumstances unlikely to recur.
As previously stated, the sentencing court found one aggravating factor, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), and one mitigating factor, defendant's lack of any criminal record, N.J.S.A. 2C:44-1(b)(7). These findings were supported by the record. See State v. Bieniek, 200 N.J. 601, 609-10 (2010); State v. Roth, 95 N.J. 334, 364-65 (1984). Even if we would have made different findings, which we do not suggest we would, an appellate court does not substitute its judgment for that of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014); Bieniek, supra, 200 N.J. at 608.
Nor did the court abuse its discretion in failing to find mitigating factor eight, that the offenses were the result of circumstances unlikely to recur. N.J.S.A. 2C:44-1(b)(8). Although defendant was not previously convicted or even charged with the commission of any crimes or other offenses, his reaction to the end of a brief romantic relationship and his conduct over a period of weeks was so egregious that it reflected a total lack of self-control and a risk of similar conduct if he should have another opportunity for such a relationship. The same reasoning supports the court's finding of aggravating factor nine and the need for specific deterrence of defendant from similar conduct.
The need for general deterrence is also an appropriate consideration since "[t]he higher the degree of the crime, the greater the public need for protection and the more need for deterrence." State v. Lawless, 214 N.J. 594, 609 (2013) (quoting State v. Megargel, 143 N.J. 484, 500 (1996)); accord Fuentes, supra, 217 N.J. at 79 ("[D]emands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense.") (quoting State ex rel. C.A.H., 89 N.J. 326, 337 (1982)).
The sentencing court exercised its discretionary authority based on competent, reasonably credible evidence, and the fifty-year sentence is not "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION