Opinion
DOCKET NO. A-2191-10T3
06-14-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZIA BERISHA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-09-1595.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Assistant Prosecutor, on the brief). PER CURIAM
Following a trial by jury, defendant Zia Berisha appeals from his May 27, 2010 conviction on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of first-degree murder (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b) (count six). After merging counts one, three and five with count two, the judge imposed on count two a thirty-year term of imprisonment, subject to a thirty-year period of parole ineligibility. On count six, the judge imposed a concurrent sentence of ten years imprisonment, with a five-year period of parole ineligibility. The judge ordered that the sentence would run consecutively to the Union County sentence defendant was currently serving and to any federal sentence that might be imposed.
Defendant was acquitted on count four, which charged unlawful possession of a handgun.
We reject defendant's contentions that the judge erred by: denying his motion to sever the trial from that of his co-defendant; permitting the State to introduce evidence of prior bad acts through the testimony of the co-defendant; providing faulty instructions to the jury; and requiring that the present sentence be served consecutively to defendant's sentence on an unrelated matter. We affirm defendant's conviction and sentence.
I.
On the morning of November 7, 2007, Michael Marro, Jr., was found dead in his Jersey City apartment by his friend Ashley Ryan. Marro's head was bloodied, and the apartment was in considerable disarray. A safe was sitting immediately behind the front door, and broken glass and broken wine bottles were strewn about.
A crime scene detective from the Hudson County Prosecutor's Office, Detective Michael Crowe, swabbed the apartment for blood stains and biological evidence, taking samples from the outside door handle, the hallway closet door, the hallway, a sliding glass door, the television and the glass table top. Crowe found a partially-burnt candle on the living room floor. After preparing his report, Crowe discarded his notes. Ultimately, the samples were not submitted for testing until ten months later, and only some of the swabs were tested.
Assistant Medical Examiner Dr. Lyla Perez testified about the autopsy findings, opining that the cause of death was blunt force trauma as well as a gunshot wound to the head. When asked for her opinion on the time of death, Dr. Perez explained that because the door to the balcony was open, and the body was not examined shortly after death, the specific time of death was difficult to determine.
On November 6, 2007, the day before Marro's body was found, two officers from the Elizabeth police department, Joseph Aliseo and James Chrysler, stopped a red Lincoln Navigator driving at an inordinately high rate of speed after the vehicle went through an intersection without stopping and made an illegal U-turn. After effecting a motor vehicle stop, the officers approached the vehicle, and detected a strong odor of marijuana emanating from the driver's window. Defendant was the driver. The passenger was identified as co-defendant, Agim Gjonbalaj. Because defendant was unable to provide either a driver's license or vehicle registration, the officers directed him to step out of the vehicle. As he did so, a bottle of percocet fell to the ground from his jacket pocket. Once defendant was out of the vehicle, the officers were able to observe his clothing, and noted that there was candle wax on defendant's jacket. Defendant was arrested for possession of marijuana. Four wrist watches found on defendant's person were seized.
Following Officer Aliseo's testimony, the judge issued a limiting instruction directing the jury to consider defendant's arrest for marijuana not as related to the charges for which defendant was on trial, but rather as background information pertaining to the circumstances under which defendant was taken into custody.
The State also called Vincent Desiderio, a forensic scientist with the New Jersey State Police, who offered expert testimony on trace evidence. He opined that the wax from the candle on Marro's living room floor was "similar" in "composition" to the candle wax taken from defendant's jacket. Another forensic scientist, Theresa Nezezon, opined that two of the blood swabs taken from defendant's jacket matched Marro's DNA profile. A third swab from defendant's jacket matched Gjonbalaj's DNA profile. Nezezon explained that she did not know why a "second batch" of evidence was submitted for testing six to eight months after the first batch or why only certain evidence was tested.
State's witness Jerry Hastaba had been a good friend of Marro's for more than ten years. Through Marro, he had met defendant, who he identified in court; Hastaba had seen defendant approximately twenty or thirty times, and had socialized with him as well. Hastaba testified that defendant came into his store in Manhattan at 3:00 p.m. on November 5, 2007, asking him to get in touch with Marro, because Marro was not returning his phone calls. Hastaba called Marro and told him defendant was looking for him, but when defendant asked, Hastaba purposely informed defendant that he had been unable to reach Marro. According to Hastaba, defendant was acting "fidgety."
David Mercado, a watchmaker who rented space in a local pawn shop, testified that he had known Marro for "six to eight years" and Marro had sold him watches. Mercado identified two of the watches seized by police from defendant as belonging to Marro, including the "Petite [sic] Philippe lookalike" that Mercado told Marro was not authentic, the Concord watch that he had repaired for Marro before, and the Cartier watch that he had sold to Marro and seen him wear often.
After the State rested, co-defendant Gjonbalaj took the stand in his own defense and testified to the events surrounding Marro's death. His testimony began with an explanation of how he met defendant. Gjonbalaj testified that he sold marijuana "[o]ff and on" ever since graduating from high school in 1995, but started selling "full-time" in early 2005. Gjonbalaj met defendant, whom he called "Zee," at a nightclub in 1999, through one of defendant's relatives named "Bash." Gjonbalaj and defendant remained in contact for the next eight years. Notably, Gjonbalaj and defendant saw each other again in August 2007, after Gjonbalaj called defendant looking for marijuana to sell. Gjonbalaj made a similar inquiry in early November.
On November 5, 2007, Gjonbalaj called defendant, who confirmed that the shipment would arrive either that night or the next morning. The shipment arrived on November 6, 2007. Defendant and Gjonbalaj met at a gas station in Elizabeth. Over defendant's objection, Gjonbalaj testified that he "could tell like [defendant] was on something." Again, over defendant's objection, Gjonbalaj said he "could tell" defendant was under the influence of oxycontin because defendant's "face was a little droopy" and defendant's fingers were stained purple, which Gjonbalaj attributed to touching the purple coating on oxycontin pills.
Although Gjonbalaj expected defendant to drive to the Bronx, then to Brooklyn and then home to Staten Island as the two had earlier agreed, defendant informed him that he needed to make a stop in New Jersey to deliver some of the marijuana to a buyer. Defendant and Gjonbalaj arrived at an apartment building, which Gjonbalaj later learned was in Jersey City. When they arrived, defendant told Gjonbalaj to "come upstairs with me" and "grab that bag [of marijuana] for me." When they arrived upstairs at Marro's apartment, it was clear to Gjonbalaj that defendant and Marro -- whom he had never met -- knew each other.
Gjonbalaj remained in the living room while defendant and Marro went outside to the balcony to discuss the details of defendant's sale of the marijuana to Marro. When Marro walked back in, according to Gjonbalaj, "he seemed like he was upset. He seemed pissed off." Almost immediately, defendant and Marro began fighting. "[T]hey started tussling and you could hear their feet shuffling on the floor." The argument soon escalated.
Gjonbalaj described how Marro grabbed defendant's arms as the two began "pulling each other side to side a little bit and . . . Zee lunged forward, [pushing] the guy backwards and it looked like [Marro] tripped as he was going back, and he fell and crashed into the coffee table." According to Gjonbalaj, although defendant fell to the floor as well, "the guy Marro got the brunt of it because he fell straight back and he didn't have the protection of his hands because he was holding on to Zee's hands." When Marro's body "smacked" the back of the coffee table, "[t]he table came flipping up," hitting Marro in the head and breaking the glass. The lit candle that had been on the coffee table flew into the air.
Even though Gjonbalaj did not believe Marro was able to stand, Marro stood up and began throwing what Gjonbalaj described as "sloppy punches" at defendant, not hitting him. Defendant pushed Marro, causing Marro to hit the wine rack that was against the wall. Gjonbalaj heard a "loud crash," after which "bottles went flying everywhere[.]"
As Marro began crawling on his knees toward defendant, Gjonbalaj heard a gunshot. He could not see what was in defendant's hand during the struggle, but, after hearing the gunshot, Gjonbalaj looked back and saw "something that looked like a revolver in [defendant's] hand." Fearing that the police would arrive in response to the sound of the gunshot, Gjonbalaj left the apartment alone, and walked to defendant's truck. Gjonbalaj concluded his direct examination by stating that he did not go to Marro's apartment with the intent to rob, kill or inflict serious harm to Marro that night, and that he did not see defendant with a gun before he heard the gunshot.
Defendant did not testify.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [DEFENDANT'S] MOTION TO SEVER.
II. THE ADMISSION OF EVIDENCE OF BAD ACTS, WHICH OCCURRED BECAUSE OF THE [JOINT TRIAL],
VIOLATED N.J.R.E. 404(b) AND DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL.
III. IN THE ALTERNATIVE, THE TRIAL COURT'S FAILURE TO GIVE JURY INSTRUCTIONS ON VOLUNTARY INTOXICATION AND SELF-DEFENSE WAS REVERSIBLE ERROR. (Not Raised Below).
IV. THE TRIAL COURT'S JURY INSTRUCTIONS DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL BY OPENING THE DOOR TO A CONVICTION ON ROBBERY AND FELONY MURDER BASED ON ACTS NOT CHARGED IN THE INDICTMENT. (Not Raised Below).
V. THIS MATTER MUST BE REMANDED FOR A PROPER EVALUATION OF [THE] SENTENCE PURSUANT TO STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014 (1986).
II.
In Point I, defendant asserts that the judge abused his discretion in denying defendant's motion to sever his trial from that of co-defendant Gjonbalaj because the "antagonistic defense[s]" advanced by each co-defendant were "mutually exclusive" and defendant was "severely prejudiced" by his co-defendant's testimony implicating him in the murder. Defendant further argues that in addition to implicating defendant in the murder and rendering defendant's theory of sloppy police work irrelevant, Gjonbalaj's testimony harmed defendant by introducing "bad acts evidence" against him.
Defendant moved for severance immediately before jury selection. The judge denied the motion, which defendant renewed immediately before opening statements. Defendant argued that it was "apparent" that he and co-defendant Gjonbalaj "are going down different paths." The judge again denied defendant's motion for severance, stating:
Although the record on appeal does not contain a transcript of jury selection, the State does not dispute defendant's contention that he moved for severance at that time.
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But, the bottom line is this still. The jury can return a verdict against one or both defendants by believing neither or believing portions of both or indeed believing both completely. The defenses are not mutually exclusive. Defenses that do not demand that a jury choose one or the other in order to return a verdict though clearly and confidentially [sic] antagonistic are not mutually exclusive. The fact that the defendant seeks to escape conviction by placing guilt on his or her co-defendant has not been sufficient grounds for severance.
Finally, and perhaps most importantly, the defendant does not have a right to severance simply because the defendant believes that a separate trial would offer a better chance of acquittal. As of now, based upon what's been presented to me by counsel that--the burden to require severance has not been met by defense in my opinion based upon the alleged antagonistic defense potentially to be offered.
Rule 3:15-2(b) provides for relief from prejudicial joinder:
If for any other reason [other than as set forth in Rule 3:15-2(a) addressing statements, confessions, or admission of one defendant involving any other defendant] it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts [or grant a severance of defendants].The decision on a motion for severance is addressed to the trial judge's sound discretion. State v. Morton, 155 N.J. 383, 452 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). In State v. Brown, 170 N.J. 138, 160 (2001), the Court expressed a preference for the joint trial of co-defendants. The Court stated:
There is a general preference to try codefendants jointly, particularly when much of the same evidence is needed to prosecute each defendant. That preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability.
[Ibid. (internal citations and quotation marks omitted).]
Despite the preference for joint trials of co-defendants, separate trials are required whenever co-defendants present defenses that are "antagonistic at their core." State v. Brown, 118 N.J. 595, 606 (1990) (citation and internal quotation marks omitted). This standard is higher than "[t]he mere existence of hostility, conflict, or antagonism between defendants[.]" Ibid. The Court explained that "[d]etermination of central or core antagonism necessarily focuses on the mutual exclusivity of defenses," which means that a jury can believe only either one defendant or the other. Ibid. "The fact that one defendant seeks to escape conviction by placing guilt on his or her co- defendant [is] not . . . considered sufficient grounds for severance." Ibid.
In fact, in Brown, supra, 118 N.J. at 600, 609, on which defendant relies as support for his claim that he and Gjonbalaj should have been tried separately, the Court found no basis to sever even where two defendants each sought to blame the other as the aggressor in a case of road rage that ended with a third-party fatality. There, the Court held that the defenses were not mutually exclusive or irreconcilable because the "defenses did not compel the jury to believe one defendant at the expense of the other in order to reach a verdict." Id. at 607. Here, although Gjonbalaj identified defendant as the shooter, defendant also presented a claim of self-defense, which likely resulted in the jury finding defendant guilty of the lesser included offense of aggravated manslaughter, rather than first-degree murder. The jury did not have to completely believe Gjonbalaj or defendant in order to reach its verdict.
Here, as Judge Isabella correctly ruled at the start of the trial, the defenses proffered by defendant and Gjonbalaj were not mutually exclusive. The fact that Gjonbalaj's testimony implicated defendant in the crime is not sufficient to establish mutual exclusivity of defenses. Id. at 609. The jury could have, and did, find both defendants guilty of certain offenses. Further, defendant's principal defense -- that sloppy police work led to unjustified charges against him -- was shared by co-defendant Gjonbalaj.
Moreover, as the State correctly argues, "much of the same evidence was needed to prosecute Gjonbalaj and [defendant]. They were both present when . . . Marro was murdered. They were both involved in the purchase and distribution of drugs. The drugs that were to be sold to Marro by [defendant] were carried in by Gjonbalaj." And evidence of the pre-existing relationship between defendant and Gjonbalaj was indispensable to prove the offense underlying Marro's murder and to establish that his murder involved drugs and potential robbery.
The judge correctly determined that separate trials were not required for defendant and Gjonbalaj. We reject the claim defendant advances in Point I.
III.
Defendant next argues that the trial court erred in allowing Gjonbalaj to introduce evidence of defendant's prior bad acts, including: (1) his alleged distribution of marijuana and Xanax; (2) his arrest for possession of oxycontin, percocet and an unknown substance; and (3) defendant's ingestion of marijuana and oxycontin on the night of the murder. Defendant maintains that the court did not analyze the evidence under State v. Cofield, 127 N.J. 328, 333-35 (1992), before allowing such evidence to be introduced, and the introduction of such "irrelevant yet highly prejudicial evidence tainted [the] trial."
The State responds that the probative value of the evidence substantially outweighed any prejudice to defendant and that the judge's limiting instructions correctly channeled the jury's use of the evidence. The State also maintains that the testimony that defendant was "a drug possessor and distributor" was not "improper character testimony." Instead, according to the State, such testimony explained how defendant and Marro knew each other, who was present in the apartment that night, and why they were there. The State also argues that the evidence was relevant to the reasons for defendant's arrest, and how the police came into possession of defendant's clothing and the four wrist watches.
Under N.J.R.E. 404(b), "[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," but is admissible 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." Once it is determined that the evidence of other crime or wrong acts is relevant to a material issue, is similar in kind and reasonably close in time to the crime charged, and is clear and convincing, the probative value of the evidence must be balanced against the risk of undue prejudice to the defendant. State v. Rose, 206 N.J. 141, 159-61 (2011) (reiterating the Cofield standard).
Whenever evidence is admitted under N.J.R.E. 404(b), the jury must be instructed as to the limited use of the evidence, to avoid the risk that the jury could conclude that because the defendant is a person of criminal, or bad character, it is more probable than not that the defendant committed the crime charged. Id. at 159.
Determination as to the admissibility of other crimes, wrongs or acts evidence is ordinarily left to the discretion of the trial court, and is reviewed under an abuse of discretion standard. Id. at 157. However, when the trial court erroneously fails to analyze the admissibility of N.J.R.E. 404(b) evidence, no discretion is afforded and the trial judge's determination will be subject to de novo review. Id. at 158. Here, the trial court did not conduct a hearing on the admissibility of the 404(b) evidence prior to its admission. Instead, rulings were made at sidebar during the trial.
To analyze defendant's claims, we provide the following context. Just before the testimony of Officer Aliseo began, the prosecutor alerted the judge that he intended to elicit testimony about defendant's arrest for possession of marijuana, percocet and oxycontin as a reason for the arrest, but that he would not mention the intent to distribute charges. Defense counsel conceded that the fact of the arrest was relevant to "show the time line" but objected to the mention of the possession of marijuana and other drugs.
The prosecutor argued that omitting any testimony about the reason for the arrest would be problematic because, without the testimony that the officers smelled marijuana and that oxycontin pills fell out of defendant's jacket when defendant exited the car, the arrest would appear unjustified, and further, the jury might speculate that it was "something of a violent nature." The judge overruled defendant's objection, deciding to permit testimony that "it was pills and marijuana."
Immediately after Officer Aliseo testified about stopping defendant's car for speeding and arresting him for possession of marijuana, the court provided the following instruction to the jury:
Ladies and gentlemen of the jury, you just heard testimony from the officer that [defendant] was arrested for possession of marijuana.In his final instructions to the jury, the judge again emphasized that the evidence pertaining to defendant's arrest for possession of narcotics was to be used by the jury only to explain the circumstances under which defendant's clothes came into the hands of law enforcement. The judge also instructed the jury that evidence that defendant sold marijuana was to be used only to assist the jury in understanding the relationship between the three men:
The fact that he was arrested for this particular conduct is not relevant at all as to the matter before you. It has absolutely no bearing whatsoever on the charges he's on trial for today. None whatsoever. Okay?
Other than the reason for the police being in possession of his clothes, okay, and how they came into possession of his clothes, this arrest should not enter into your deliberations or discussions in any manner at any time. It has nothing to do with the decision you are making on this case. Okay? Understand?
You heard testimony that the defendant Zia Berisha was arrested in Elizabeth for possession of marijuana and possession of pills, percocet, oxycontin and some unknown pills. The evidence of this arrest was relevant to explain to you why defendant Zia Berisha was arrested and as a result of the arrest how his clothes came in possession of the Hudson County Prosecutor's Office. That is the only reason that arrest is relevant to the matters you are deciding.
The fact that he allegedly possessed the marijuana and these pills is not relevant to the matter before you for any
other reason. You must not consider for any purpose or any matter in arriving at your verdict the fact that defendant Zia Berisha was arrested for possession of these items. That fact should not enter otherwise enter into your deliberations or discussions in any manner or anytime.
Likewise, there was testimony from defendant Agim Gjonbalaj that he and Zia Berisha were involved in the distribution of marijuana and also the fact Zia Berisha gave Xanax to Mr. Gjonbalaj for his girlfriend, Jennifer. Again, this testimony is relevant to explain to you the alleged relationship between defendant Gjonbalaj and defendant Berisha and how they allegedly came to be located at the home of Michael Marro the evening of November 6th, 2007. It is not to be used for any other purpose. It has no other bearing or relevance on the issue of the fact you must ultimately decide when returning your verdict.
You must not consider for any purpose or any manner in arriving at your verdict the fact that defendant Berisha and defendant Gjonbalaj were engaged in this conduct other than the reasons given for its relevance, to explain why they were where they were. Other than that reason this fact--these facts should not enter into your deliberations or discussions in any manner or any anytime.
We first address defendant's argument that the judge erred by permitting Gjonbalaj to describe defendant's use of marijuana and oxycontin before defendant and Gjonbalaj allegedly entered Marro's apartment. We conclude such evidence is not classic N.J.R.E. 404(b) prior bad act evidence, but is, rather, evidence of an "uncharged act performed contemporaneously with the charged crime . . . that facilitates the commission of the charged crime," Rose, supra, 206 N.J. at 180, as it supported the State's claim that defendant, Gjonbalaj and Marro were all involved in drug possession, use and distribution. While we agree with defendant that it might have been preferable for the judge to limit the evidence to the fact that defendant and Gjonbalaj went to Marro's apartment to sell him marijuana -- rather than also permitting the State to introduce evidence of defendant's drug use before arriving at Marro's apartment -- the additional evidence was such a small and incremental portion of the evidence at trial that we do not deem it harmful.
Next, defendant asserts that the testimony concerning his possession of pills and marijuana at the time of his arrest, ran afoul of the parameters of N.J.R.E. 404(b) that were discussed in Rose. We disagree. The fact that pills and marijuana were found on defendant explained the nature of the relationship between co-defendant Gjonbalaj and defendant. It was the reason defendant met with Marro in Marro's apartment.
Further, the State had the right to present evidence explaining the context in which the events in question occurred. State v. Crumb, 307 N.J. Super. 204, 232-33 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). In particular, without the evidence describing the purpose of defendant's and Gjonbalaj's visit to Marro's apartment, the jury would have been left with an entirely barren and uninformed picture of what led to the argument between defendant and Marro. Moreover, if the State had been prevented by the judge from introducing evidence about defendant's possession of marijuana, and the reason for his visit to Marro's apartment, the jury might have engaged in unbridled speculation about the relationship between the three men. The evidence of defendant's possession of marijuana, and his intention to sell a significant quantity of it to Marro, was unquestionably relevant.
We reach the same conclusion about the judge's decision to permit the State to introduce evidence explaining why defendant was arrested. As a threshold matter, it is beyond dispute that the State was entitled to introduce evidence of the four wrist watches found in defendant's possession at the time of his arrest, as the State directly linked the stolen wrist watches to the victim, Marro. The State was entitled to explain to the jury why the police stopped defendant's car, and why they arrested defendant. We conclude that all of the drug-related evidence that we have described satisfied the first prong of the four-part Rose test, which requires a showing that the N.J.R.E. 404(b) evidence is "relevant to a material issue." Rose, supra, 206 N.J. at 159.
The second Rose prong requires the State to demonstrate that the other-crimes evidence is "similar in kind and reasonably close in time to the offense charged." Ibid. Although the N.J.R.E. 404(b) evidence was "close in time," it was not "similar in kind" to the homicide and robbery charges with which defendant was charged. It is clear, however, that "similarity of conduct is not always applicable, and thus not required in all cases". Id. at 160 (observing that the second prong "is understood as limited to cases that replicate the circumstances in Cofield") (citation omitted).
The third prong requires that the other-crime evidence "be clear and convincing." Ibid. The State produced evidence from both Officer Aliseo and from co-defendant Gjonbalaj that defendant had pills and marijuana on his person. More to the point, co-defendant Gjonbalaj affirmed the drug trafficking practices that he and defendant shared, and confirmed that the purpose for their trip to Marro's apartment was to sell "weed." We conclude the third prong was satisfied.
The fourth prong of the Rose test "is typically considered the most difficult to overcome." Ibid. The fourth prong requires the judge to determine whether the probative value of the N.J.R.E. 404(b) evidence is "outweighed by its potential for undue prejudice." Ibid. We are satisfied that in light of the considerable relevance of the disputed evidence, its relevance was not outweighed by its capacity for prejudice. In sum, we are satisfied that the judge properly admitted the N.J.R.E. 404(b) evidence in question as the evidence satisfied all four prongs of the Rose test.
Additionally, as Rose requires, id. at 161, the judge provided a thorough and effective limiting instruction at the time the evidence was offered and during his final instructions to the jury. We reject the claim defendant advances in Point II.
IV.
In Point III, defendant asserts that the judge committed reversible error by failing to instruct the jury on voluntary intoxication and self-defense. Because defendant failed to request a jury instruction on either of those subjects, we will not reverse on this ground unless the omission of either of these jury instructions was "clearly capable of producing an unjust result." R. 2:10-2. Having reviewed defendant's arguments on this subject, we conclude that his claims lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
As to voluntary intoxication, suffice it to say, defendant was not entitled to such an instruction because he failed to produce any evidence of the amount of oxycontin and marijuana that he consumed, over what period of time, or that his consumption of those substances "had prostrated his faculties to the extent that a jury could conclude that he did not possess the willfulness, deliberation and premeditation necessary to commit purposeful and knowing murder." State v. Mauricio, 117 N.J. 402, 420 (1990).
Of even greater significance, however, we note that defendant was not convicted of murder, but was instead convicted of the lesser included offense of aggravated manslaughter. Had evidence of voluntary intoxication been admitted, it would only have reduced defendant's criminal liability to the very charge of which he was ultimately convicted -- aggravated manslaughter -- and for that reason, the omission of an intoxication instruction had no effect on the outcome of the trial.
As for the judge's failure to sua sponte instruct the jury on self-defense, the use of deadly force is only justifiable when a defendant reasonably believes that such force is necessary to protect himself against death or serious bodily harm. N.J.S.A. 2C:3-4(b)(2). Here, defendant discharged a firearm, resulting in the death of Marro, even though Marro himself had no weapon and was not threatening defendant with deadly force. Under such circumstances, the defense of self- defense would likely have been unsuccessful. For that reason, the judge's omission of an instruction on self-defense had no capacity to produce an unjust result. We reject the claims defendant advances in Point III.
V.
In Point IV, defendant argues that the original judgment of conviction (JOC) notes the imposition of a thirty-year term of imprisonment, consecutive to the federal sentence defendant was already serving, but the amended JOC indicates that the sentence would also be consecutive to a Union County sentence not mentioned elsewhere in the record. As such, defendant maintains that he is entitled to a sentencing remand because "there is nothing on the record regarding how the court arrived at a consecutive term for the Union County sentence."
We agree with defendant's contention that the reasons for imposing a consecutive sentence must be expressly stated by the court, and the failure to do so may compel a remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). But where the circumstances of the crimes leave little doubt about the propriety of the sentences, and where there is no showing that the sentences are clearly mistaken, an appellate court may affirm without requiring a remand. State v. Jang, 35 9 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003).
As State correctly argues, defendant could have no expectation of anything less than a consecutive sentence because the crimes in question were committed in different counties, at different times and with different objectives. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We reject the claim defendant advances in Point IV.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION