Opinion
A-0727-19
12-22-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE J. MORUZIN, a/k/a BUTCH HARRIS, BUTCH HENRY, BUTCHY MORUZIN, BENJAMIN FRANCIS AQUESTA, WALTER HARRIS, WALTER J. HARRIS, WAYNE MORAZIN, WAYNE JOHN MORUSIN, LANCE HARRIS, LANCE W. HARRIS, LANCE G. HENRY, LANCE WALT HARRIS, LANCE WALTER HARRIS, MARK HENRY, JAMES KUZMUNICH, JAMES G. KUZMUNICH, WAYNE MORIZAN, WAYNE MORUZIN, WAYNE HENRY, WAYNE JOHN HENRY, WAYNE MORUSIN, WALTER J. NAUMENKO, WALTER JOHN NAUMENKO, WAYNE MOROZIN, and WAYNE J. MORIZIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Matthew J. Platkin, Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted November 7, 2022
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 15-061785.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
Before Judges Enright and Bishop-Thompson.
PER CURIAM
Defendant Wayne J. Moruzin appeals from his 2018 convictions and aggregate ninety-year prison sentence. We affirm the convictions and remand for further proceedings to allow the trial court to address the overall fairness of the sentence, consistent with State v. Torres, 246 N.J. 246 (2021).
I.
At approximately 8:30 a.m. on June 24, 2014, defendant walked into the offices of a printing company in Deptford Township and robbed Gregory Adair, the co-owner of the company, at gunpoint. Defendant took Adair's wallet, cell phone, and car keys and directed him to the second floor of the office before tying Adair's hands and feet with phone cords and tape.
Approximately ten minutes later, Adair's business partner, Alvin Romer, entered the office and went upstairs. Defendant robbed Romer at gunpoint, taking his bank cards and car keys, before ordering Romer to reinforce the cords around Adair's hands and feet and to tie himself up. Defendant also directed the victims to provide their bank PIN numbers and "not to try anything funny" or he would "pop" them.
Dwayne Viola, a company employee, arrived at work around 9:00 a.m. As he walked upstairs to where Adair and Romer were bound, defendant fired a taser at Viola's shoulder. Because Viola had not yet spotted defendant, he thought Romer and Adair pulled a prank on him and laughed. At that, defendant stepped in front of Viola, cursed at him and told Viola, "[t]his was no . . . joke." Defendant also fired his gun at the floor where Viola was standing and demanded Viola empty his pockets. Defendant then held the gun to Viola's head, pushed his head to the floor, and demanded Romer tie up Viola. Viola suspected defendant was under the influence of drugs.
Defendant began pacing around the room and stated he "didn't want to turn this into a triple murder." He told the victims he would call 9-1-1 after he left the office so they could be untied, but only if they "did everything that he said." Additionally, defendant instructed the victims to wait an hour before calling the police and to provide the police with a false description of his appearance. Approximately ten minutes after defendant drove away from the scene in Romer's 2013 Ford Edge, the victims untied themselves and called the police. They described their attacker as a white male with dark, curly hair, tattoos on his arm and hand, wearing black jeans and a white shirt with stripes.
The police met the victims at the scene at approximately 9:47 a.m. and learned defendant took the victims' cell phones and Romer's car. Detective John Petroski of the Gloucester County Prosecutor's Office was able to use the "Find my iPhone" app to locate one of the victims' phones in Camden. This discovery, coupled with the description the victims provided about defendant's features and Romer's car, led Camden police officers to the stolen vehicle. They apprehended defendant in the same area a short time later.
When defendant was arrested, he was carrying a handgun, heroin, cash, car keys, and prescription bottles for Alprazolam (Xanax) and morphine, but no taser. The police also found an empty shell casing on the front passenger seat of the stolen car, which was subsequently traced back to defendant's gun.
Once officers from the Deptford Township Police Department found out defendant was under arrest, Detectives John Gigante and George Johnson accompanied Romer and Viola in separate vehicles to Camden for a showup identification, leaving Adair behind to be interviewed by a detective. The officers instructed Romer and Viola to make an identification only if they were positive, advising the victims the person they would see might or might not be the person who robbed them.
At approximately 11:50 a.m., Romer and Viola arrived in Camden and were brought to the area where defendant was handcuffed and waiting in the back of a police car. As defendant was removed from the car and stood on the sidewalk, Romer and Viola remained in separate patrol cars approximately twenty-five feet away. Each victim positively identified defendant from the backseat of the patrol cars. According to an audio recording of Viola's showup identification, he immediately identified defendant with certainty; Romer later testified he had no doubt defendant was the person who robbed him.
After defendant was processed at the Deptford Police Department, he was placed in an interview room, where Detective Gigante advised him of his Miranda rights. Defendant stated he understood these rights and initialed a "waiver of rights" form before the interview commenced. Defendant readily admitted he robbed three men earlier that morning and had fired a gun at one of the victims. He also acknowledged he picked up an empty shell casing from the floor of the victims' office and drove one of their cars to Camden. Additionally, defendant told Detective Gigante about his prior criminal history and stated he "had a mental health record" and had been "diagnosed as incompetent and insane." Further, defendant revealed he ingested a "half a bag" of "dope" that morning. Detective Gigante understood this to be a reference to heroin. However, the detective later testified he did not believe defendant was under the influence of any drugs during the interrogation.
Miranda v. Arizona, 384 U.S. 436 (1966).
II.
In May 2015, a Gloucester County Grand Jury indicted defendant on the following charges: three counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (counts one, five, and ten); three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (counts two, six, and eleven); three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts three, nine, and twelve); three counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (counts four, eight, and thirteen); third-degree aggravated assault with a stun gun, N.J.S.A. 2C:12-1(b)(2) (count seven); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen); second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count fifteen); third-degree possession of a stun gun for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count sixteen); fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3(h) (count seventeen); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(a) (count eighteen).
In addition, a Camden County Grand Jury indicted defendant on the following charges: second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count two); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count three); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count four); and second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1) (count five). Defendant successfully moved to consolidate the Camden and Gloucester County cases and proceeded to trial in Gloucester County.
Prior to trial, defendant filed a motion to suppress the statements from his custodial interview, evidence seized during his arrest, and the out-of-court identifications made by Romer and Viola. Following a January 2018 testimonial hearing, the judge issued an oral decision, denying the suppression motion. He subsequently issued a conforming written opinion on February 1, 2018.
In his February 1 opinion, the judge found the police had probable cause to arrest defendant, noting the victims' description of the robbery suspect matched defendant's appearance, and defendant was located in the same area as Romer's stolen phone and car. Also, the judge concluded that following defendant's lawful arrest, he was contemporaneously searched, "the search was limited to his person" and "this was a valid search incident to arrest." Therefore, the judge found "[t]he seized evidence [wa]s admissible."
Next, relying on State v. Henderson and other case law, the judge found the showup identifications made by Romer and Viola were reliable, and therefore, admissible. He found the detectives who accompanied Romer and Viola to Camden properly instructed the victims not to feel compelled to make a positive identification of the suspect, and the detectives properly kept the victims apart so Romer and Viola could make their identifications separately. Further, the judge determined the identifications complied with Rule 3:11(a), in that law enforcement officers made "a record of [the] out-of-court identification[s] based upon a visual depiction or physical display of an individual." Additionally, the judge found "Detectives Gigante and Johnson read instructions from the Show[]up Procedures Worksheet to Romer and Viola" before they identified defendant, "[t]he [positive] identifications were recorded in writing in Detective Gigante's report and the Show[]up Procedures Worksheets [were] completed by Detective[s] Gigante and . . . Johnson." Moreover, the judge determined Detective Johnson electronically recorded Viola's identification by video, and though Detective Gigante did not do the same, he complied with Rule 3:11(b) by recording Romer's identification in writing.
208 N.J. 208 (2011).
Rule 3:11(b) refers to acceptable methods of recording an out-of-court identification and permits a law enforcement officer to "contemporaneously record the identification procedure in writing."
Further, the judge noted that while the positive identifications were made "just outside of two hours after the robber[ies,]" and "the Henderson Court expressed concern about show[]up identifications occurring more than two hours after" a criminal event, "the totality of the system variables ma[d]e th[ese] identification[s] reliable." Additionally, the judge concluded "[t]he estimator variables also ma[d]e the identifications reliable. "He reasoned the victims "had an extended opportunity to observe the robber[ies]" because they closely interacted with defendant and "[d]efendant did not enter and quickly leave." Also, the judge observed that the incident occurred in the morning inside a business so "lighting [did] not appear to be an issue." Moreover, the judge stated he was not "presented with any evidence that this case involved a cross-racial identification," and added, "[t]he victims' descriptions of[d] efendant matched his appearance perfectly when he was arrested," and "Romer and Viola identified [d]efendant with certainty" immediately after seeing him at the showup.
In Henderson, the Court identified eight "system variables," defined as characteristics of the identification procedure over which law enforcement has control. 208 N.J. at 248-61. These variables are: (1) whether a "blind" or "double-blind" administrator is used; (2) whether pre-identification instructions are given; (3) whether the lineup is constructed of a sufficient number of fillers that look like the suspect; (4) whether the witness is given feedback during or after the procedure; (5) whether the witness is exposed to multiple viewings of the suspect; (6) whether the lineup is presented sequentially versus simultaneously; (7) whether a composite is used; and (8) whether the procedure is a "showup." Ibid. The Court also identified ten "estimator variables," defined as factors beyond the control of law enforcement which relate to the incident, the witness, or the perpetrator. Id. at 261. These variables are: (1) the stress level of the witness when making the identification; (2) whether a visible weapon was used during the crime; (3) the amount of time the witness viewed the suspect; (4) the lighting and the witness's distance from the perpetrator; (5) the witness's age; (6) whether the perpetrator wore a hat or disguise; (7) the amount of time that passed between the event and the identification; (8) whether the witness and perpetrator were different races; (9) whether the witness was exposed to co-witness feedback; and (10) the speed with which the witness makes the identification. Id. at 261-72.
Although the judge acknowledged there were "estimator variables which hurt the reliability of the identification, "such as the stress associated with the event and the fact the identifications occurred more than two hours after the robbery, he concluded "the totality of the estimator variables suggest the identifications were reliable." Finding defendant failed to demonstrate "a very substantial likelihood of irreparable misidentification," the judge deemed the identifications admissible.
Additionally, the judge addressed defendant's request to suppress the statements made during his custodial interview. After finding defendant was "verbally given his Miranda rights, and . . . provided a form with them written on it," the judge determined defendant "initialed each line stating that he understood his rights." Additionally, the judge found defendant was "familiar with the criminal process," given his "extensive criminal history," and defendant acknowledged he was not coerced or promised anything to compel him to speak with the detectives, nor was he detained for an excessive amount of time.
The judge further concluded, "[a]t no time during the one-hour interview did [d]efendant hesitate in answering questions or seek to stop" the interview. The judge also credited Detective Gigante's testimony that "[d]efendant did not appear to be under the influence of alcohol or narcotics" when he provided his statement. Therefore, the judge determined defendant voluntarily and knowingly waived his Miranda rights beyond a reasonable doubt and statements made during the custodial interview were admissible.
Defendant's jury trial commenced in October 2018 and ended the next month, following the bifurcated trial on the certain persons counts. During the course of the initial jury trial, defendant periodically fell asleep and uttered inculpatory statements while the jury was present. When the judge expressed concern about these issues outside the jury's presence, defendant explained he fell asleep at times due to his medication and because he was up late; defendant also apologized for speaking loudly in the courtroom, explaining he was hard of hearing and did not realize he may have spoken loud enough for jurors to hear.
As the trial was due to conclude, the judge conducted charge conferences with counsel. Defendant was present for a charge conference on October 30, 2018, but notified the judge he did not want to appear for the continued charge conference the next day. The judge asked defense counsel, in defendant's presence, what she thought about defendant's "desire not to come tomorrow," to which she replied, "I think we should abide by his wishes." The judge acquiesced to defendant's request not to appear at the next charge conference, but ordered him to appear the day after that, when counsel were expected to deliver their closing arguments. Defendant lodged no objection to this plan.
During the October 31 charge conference, the judge granted defendant's motion to dismiss count seven of the Gloucester Indictment (third-degree aggravated assault with a stun gun), as well as the State's motion to dismiss count seventeen of the same indictment (fourth-degree possession of a stun gun). The judge also considered defendant's request to instruct the jury on voluntary intoxication, given defendant's statement to Detective Gigante that he ingested a "half a bag" of "dope" prior to the robberies. Noting the State's objection to this charge, the judge denied defendant's request. The judge found there was "no rational basis for . . . concluding that this charge should be given," as there was insufficient evidence as to "what exactly was consumed" by defendant, but it did "not appear to be [in] any extreme quantities." The judge also stressed that in the testimony provided by the victims, only one victim thought defendant was "on something or high" during the incident, but all three victims described defendant as "well controlled - in control of his faculties, had a clear purpose behind what he was attempting to [do], [and] gave clear definitive instructions to each of the three as to what they were to do."
Additionally, the judge noted "[n]one of what . . . defendant did" when he confronted the victims "suggests that his conduct was not consistent with his purpose to get . . . whatever property . . . would be of value to him." Further, the judge found that several hours after the incident when defendant was being interrogated, "his ability to recall [the incident] was not hampered." The judge added that defendant "recalled specific events .... He recalled very specific conduct." Although the judge denied defendant's request for a voluntary intoxication charge, he ruled defense counsel would be permitted to argue to the jury "defendant's [drug] use had an impact" on his behavior.
Next, the judge addressed the instructions to be provided to the jury regarding the certain persons charges. Defense counsel initially stated defendant "could plead guilty to that, right?" Almost immediately thereafter, she remarked, "never mind .... It would be faster for [the jury] to deliberate." She then agreed to stipulate only to the third element of the certain persons offense, i.e., that defendant was previously convicted of a predicate offense barring him from legally possessing a firearm.
When the trial resumed on November 1, counsel gave their closing remarks and the judge instructed the jury on all pending charges, except for the certain persons charges, which were considered in the bifurcated trial. The jury found defendant guilty on all charges presented in the initial trial.
Following their verdict, the judge informed jurors they needed to address defendant's certain persons charges. At the judge's invitation, the State delivered an opening statement regarding those charges, but the defense waived its right to make an opening argument. Then, in defendant's presence, the judge advised the jury "the parties stipulate that prior to [the June 2014 robberies,] the defendant had been convicted of at least one predicate offense as such offenses are set forth in N.J.S.A. 2C:39-7(a)." The judge also told jurors they "should treat these facts as being undisputed," but "[a]s with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict."
After the stipulation was read to the jury, the State offered its closing remarks but the defense declined to provide a closing statement. The judge then instructed the jury regarding the three elements of a certain persons offense and explained the State needed to prove each element beyond a reasonable doubt, including the element that defendant was "a person who previously has been convicted of a predicate offense." Further, the judge stated that if the jury found "the State . . . failed to prove any of these element[s] beyond a reasonable doubt, then [they] must find the defendant not guilty."
Following this jury charge, the judge asked if counsel had "anything [to address] on those instructions." Each attorney answered, "[n]o, thank you." That same day, the jury found defendant guilty of both certain persons charges.
III.
Defendant was sentenced in February 2019. Because the State moved for the court to impose an extended term sentence, the judge asked counsel to first address any aggravating and mitigating factors they wanted him to consider regarding the extended term. After outlining the mitigating factors defense counsel deemed applicable, she advised the judge that defendant wished to address the court before his sentence was imposed, rather than before the judge ruled on the extended term issue. The judge accommodated defendant's request, allowing him to speak at length after the judge granted the State's motion for an extended term.
During defendant's allocution, he did not deny robbing the three victims. Instead, he repeatedly stated he "didn't intend to hurt" them and "didn't want to shoot nobody. "He explained he "just wanted to get the drugs down in Camden." Defendant also acknowledged his criminal history but asked the judge to consider his physical health issues when imposing sentence, telling the judge, "I'm dying anyway" and "[a]ll I want to do is try to live out the rest of my life comfortably. And if it's got to be in prison, then I'll just be in prison."
Once defendant finished his remarks, the judge asked counsel, "is there anything else you wish me to consider with regard to what the appropriate sentence should be?" The assistant prosecutor elected to rely on her sentencing memorandum. However, defense counsel supplemented her argument, asking the judge to find the robberies "all occurred at the same time," and because "this was one event," she urged the judge to impose concurrent sentences for "the three robberies." Further, she acknowledged there were "other charges that occurred in Camden," and she could not "really argue for concurrent sentences" on those charges.
Under the Gloucester County indictment, the judge imposed the following sentences: fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one (the Romer robbery), consecutive to a twenty-five year extended-term sentence, subject to NERA, on count five (the Viola robbery), consecutive to fifteen years, subject to NERA, on count ten (the Adair robbery), consecutive to ten years (five years without parole) on count fifteen (possession of a weapon without a permit), consecutive to ten years (five years without parole) on count eighteen (certain persons).
Next, regarding the Camden County indictment, the judge imposed a consecutive five-year term on count four (CDS possession), to run concurrent to five-year terms on counts two and three (possession of hollow nose bullets and receiving stolen property), with all other counts merged. Additionally, the judge considered defendant's medical condition and stated he would "make a recommendation" that defendant "be housed in an appropriate medical facility to address his multiple medical issues." Accordingly, defendant received an aggregate ninety-year prison sentence, subject to a parole ineligibility period of sixty-nine years and four months.
IV.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO [SUA SPONTE] ORDER A . . . COMPETENCY HEARING TO DETERMINE WHETHER [DEFENDANT] WAS COMPETENT TO STAND TRIAL. (NOT RAISED BELOW).
POINT II
THE IDENTIFICATIONS MADE BY . . . ROMER AND . . . VIOLA POSED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE [MIS]IDENTIFICATION, AND THEREFORE, SHOULD HAVE BEEN SUPPRESSED.
A. THE OUT-OF-COURT SHOWUP PROCEDURES WERE THE PRODUCT OF UNDULY SUGGESTIVE CIRCUMSTANCES CREATING A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
B. THE OFFICERS FAILED TO PROPERLY RECORD ANY PRE-IDENTIFICATION
INSTRUCTIONS PROVIDED TO . . . ROMER AND . . . VIOLA, AND FAILED TO ELECTRONICALLY RECORD ROMER'S OUT-OFCOURT IDENTIFICATION AT ALL.
POINT III
THE COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CHARGE THE JURY ON INTOXICATION BECAUSE THERE WAS A RATIONAL BASIS TO CONCLUDE THAT [DEFENDANT'S] FACULTIES WERE SO PROSTRATED THAT HE WAS INCAPABLE OF FORMING THE REQUISITE MENS REA TO COMMIT THE CHARGED OFFENSES.
POINT IV
THE STATE FAILED TO MEET ITS BURDEN OF PROVING THAT [DEFENDANT] KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS BEYOND A REASONABLE DOUBT.
POINT V
THE CERTAIN PERSONS CONVICTIONS MUST BE REVERSED BECAUSE THERE IS NO INDICATION [DEFENDANT] WAIVED HIS RIGHT TO HAVE EACH ELEMENT OF THOSE CHARGES PROVEN BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).
POINT VI
THE IMPOSITION OF A [NINETY]-YEAR TERM OF IMPRISONMENT FOR THIS [SIXTY-FOUR]-YEAR-OLD MAN - A SENTENCE WHICH WILL
EXCEED [DEFENDANT'S] LIFESPAN - CONSTITUTES A MANIFESTLY AND UNDULY PUNITIVE SENTENCE.
A. THE COURT COMMITTED STRUCTURAL ERROR IN DEPRIVING [DEFENDANT] OF A MEANINGFUL OPPORTUNITY TO ALLOCUTE.
B. THE COURT'S IMPOSITION OF CONSECUTIVE SENTENCES VIOLATED THE DICTATES OF YARB[]OUGH AND TORRES.
State v. Yarbough, 100 N.J. 627 (1985).
Other than defendant's arguments under Points VI and VI.B, his contentions are unavailing.
As a threshold matter, we observe that arguments raised for the first time on appeal are reviewed under the plain error standard. Guided by this standard, we will not reverse unless the judge's error 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. Ross, 229 N.J. 389, 407 (2017) (quoting State v. Williams, 168 N.J. 323, 336 (2001) (citations omitted)); see also State v. G.V., 162 N.J. 252, 280 (2000) (quoting State v. G.S., 145 N.J. 460, 473 (1996)).
Governed by these principles, we cannot conclude, as defendant newly argues in Point I, the judge committed "reversible error" in failing to sua sponte order a psychiatric examination to determine if defendant was competent to stand trial.
The Due Process Clause of the Fourteenth Amendment prohibits states from trying, convicting, or sentencing mentally incompetent defendants. Pate v. Robinson, 383 U.S. 375, 378 (1966). A court's failure to invoke "procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial." Drope v. Missouri, 420 U.S. 162, 172 (1975) (citing Pate, 383 U.S. at 385); see also State v. Purnell, 394 N.J.Super. 28, 47 (App. Div. 2007); State v. M.J.K., 369 N.J.Super. 532, 547 (App. Div. 2004).
Additionally, our Criminal Code provides: "[n]o person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." N.J.S.A. 2C:4-4(a). A person is considered mentally competent to stand trial on criminal charges if the proofs satisfy the requirements of N.J.S.A. 2C:4-4(b). See State v. Gorthy, 226 N.J. 516, 531-32 (2016). At a minimum, the defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and [possess] . . . a rational as well as a factual understanding of the proceedings against him." Purnell, 394 N.J.Super. at 47 (citing Dusky v. United States, 362 U.S. 402, 402 (1960)).
A court may sua sponte "appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant" whenever a defendant's fitness to proceed appears questionable. State v. Harris, 181 N.J. 391, 457-58 (2004) (quoting N.J.S.A. 2C:4-5(a)). Where, as here, a defendant challenges a court's decision not to sua sponte order a competency examination, our standard of review "is a strict one." Id. at 458 (quoting State v. Spivey, 65 N.J. 21, 37 (1974)). A court's failure to exercise its authority to order a competency evaluation "will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial." Spivey, 65 N.J. at 37 (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)). In order to satisfy "[t]he 'clear and convincing' standard of review" on appeal, a defendant must show a "'bona fide doubt' as to . . . competence to stand trial." Ibid. (citing Pate, 383 U.S. at 385).
"The evidence necessary to establish the requisite bona fide doubt as to a defendant's competence is difficult to articulate . . . ." State v. Lambert, 275 N.J.Super. 125, 129 (App. Div. 1994). "[T]here are 'no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed.'" Gorthy, 226 N.J. at 530 (quoting Drope, 420 U.S. at 180). But the "'[m]ere suggestion' of incapacity is not sufficient," Spivey, 65 N.J. at 36, and a court is not required to conduct a competency hearing "in the absence of . . . substantial evidence of the existence of a degree of mental disorder which would unfit the defendant from conducting his cause or instructing his counsel," Id. at 36-37 (citations omitted).
"[B]ecause defense attorneys are in a better position than the trial court to question a defendant's competency, the fact that [counsel finds] no reason to question [a defendant's] competency must be given substantial weight" in determining whether a hearing was required. Harris, 181 N.J. at 458. A court is not required to accept counsel's representations concerning a defendant's competency but "a lawyer's representations concerning the competence of [a] client, . . . is unquestionably a factor which should be considered." Drope, 420 U.S. at 177 n.13 (citations omitted).
Here, defendant argues his "inconsistent" behavior, "incriminating outbursts," mental health history, and his falling asleep at times during trial raised a bona fide doubt regarding his ability to understand the proceedings and to assist in his own defense. We disagree. In fact, the record shows defendant understood he was on trial, facing criminal charges, with a prosecutor against him and his attorney defending him. The record also demonstrates defendant understood he was tried in front of a judge and a jury. For example, throughout the trial, defendant addressed the judge as "Judge" or "Your Honor." Further, he demonstrated an understanding of the evidence presented at trial and certain legal concepts. In fact, at one point, he told his attorney during an argument about out-of-court identifications that "the method . . . [the police] used was obsolete" because "the Attorney General passed a different law." Moreover, when defendant expressed a preference not to physically appear for trial and the judge explained he would be forfeiting a substantial right if he did not appear for trial, defendant told the judge he understood this because his attorney had explained as much to him. Additionally, although defendant ultimately chose not to testify, at one point, he stated, he wanted "to testify and just get it all out on the table."
Regarding his "outbursts" at trial, defendant explained he spoke loudly because his hearing was poor. Further, when the judge addressed the fact defendant fell asleep during trial, defendant informed the judge this was due to medication he was taking and because he stayed up late.
To the extent defendant relies on a prior adjudication of incompetency from 2006 to advance his argument, we are not persuaded. It is well established that an individual's competency depends on his or her ability to comprehend the proceedings at the current trial, not prior proceedings. See N.J.S.A. 2C:4-4(b)(1); see also Gorthy, 226 N.J. at 538 (stating defendant's competency is assessed based on "current information"). Further, the record reflects that the judge who deemed defendant incompetent to stand trial in 2006 subsequently found defendant was competent to stand trial. Considering these circumstances, we decline to conclude the judge erred in failing to sua sponte order a psychiatric examination to assess defendant's competency to stand trial.
Turning to defendant's arguments under Points II and IV, we preface our remarks by noting we review a "trial court's evidentiary rulings . . . 'under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion.'" State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. &Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). Legal conclusions, however, are reviewed de novo. State v. Tillery, 238 N.J. 293, 314 (2019).
Next, it is well established that when we review a judge's determination on a suppression motion, we "must uphold the factual findings underlying the trial court's decision, provided that those findings are 'supported by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417, 425 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). And "[o]ur standard of review on a motion to bar an out-of-court identification . . . is no different from our review of a trial court's finding in any non-jury case." State v. Wright, 444 N.J.Super. 347, 356 (App. Div. 2016). "The aim of the review . . . is . . . to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Ibid. (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
It also is well settled we deferentially review a trial court's factual findings regarding a defendant's Miranda waiver and "consider whether those findings are 'supported by sufficient credible evidence in the record.'" Tillery, 238 N.J. at 314. Such findings should be disturbed only if they are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (citation omitted). Deference to a trial court's factual findings is appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
"A defendant's statement to the police, made in custody, is admissible if it is given freely and voluntarily, after the defendant received Miranda warnings, and after he knowingly, voluntarily, and intelligently waived his rights." State v. O.D.A.-C., 250 N.J. 408, 413 (2022). "The State must prove beyond a reasonable doubt that a defendant's waiver was valid." Ibid. (citing State v. Sims, 250 N.J. 189, 211 (2022)). "[A] knowing, intelligent, and voluntary waiver" of Miranda rights "is determined by the totality of the circumstances surrounding the custodial interrogation based on the fact-based assessments of the trial court." State v. A.M., 237 N.J. 384, 398 (2019) (citing State v. Presha, 163 N.J. 304, 313 (2000)).
"Under the totality-of-the-circumstances test, courts commonly consider a number of factors to determine if a Miranda waiver is valid." O.D.A.-C., 250 N.J. at 421. "They include the suspect's 'education and intelligence, age, familiarity with the criminal justice system, physical and mental condition, . . . drug and alcohol problems,' how explicit the waiver was, and the amount of time between the reading of the rights and any admissions." Ibid. (alteration in original) (citations omitted).
Governed by these standards, we are satisfied each of defendant's suppression arguments lack merit. R. 2:11-3(e)(2). Accordingly, we affirm the denial of defendant's motion to suppress the physical evidence seized during his arrest, the victims' out-of-court identifications, and statements from his custodial interview, substantially for the reasons outlined by the judge in his thoughtful written opinion.
We add the following comments regarding the out-of-court identifications made by Romer and Viola. A showup identification "essentially [is a] singleperson lineup," during which "a single suspect is presented to a witness to make an identification." Henderson, 208 N.J. at 259. As the language suggests, showups traditionally involve the witness's observation of a suspect live and in person. Id. at 261. Generally, a showup identification occurs at the crime scene or shortly afterward. Id. at 259.
By definition, a showup is "inherently suggestive" because the victim can only choose from one person, who ordinarily is in police custody. State v. Herrera, 187 N.J. 493, 504 (2006); see also Henderson, 208 N.J. at 259. However, a showup identification may be admitted at trial if it is otherwise reliable. See id. at 303; Herrera, 187 N.J. at 503-04.
In Henderson, the Court adopted a framework to assess whether a process used by the police to obtain eyewitness identification of a perpetrator was reliable or improperly suggestive, thereby requiring a hearing to determine the identification's admissibility. Id. at 288-96. As we have noted, the Henderson Court held that in assessing the identification procedure, trial courts should consider factors in two categories: system and estimator variables. Id. at 247.
When a defendant seeks to exclude an out-of-court identification, he must show "some evidence of suggestiveness tied to a system variable which could [have led] to a mistaken identification." State v. Anthony, 237 N.J. 213, 233 (2019) (citing Henderson, 208 N.J. at 288-89). If a defendant presents evidence of suggestiveness, the burden shifts to the State to "offer proof to show that the proffered eyewitness identification is reliable." Henderson, 208 N.J. at 289. But the "ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification." Ibid. (citations omitted). In that regard, the "threshold for suppression" is high and in most cases the issue of identification is "likely to be presented to the jury." Id. at 303.
Our jurisprudence "has permitted 'on or near-the-scene identifications because they are likely to be accurate, taking place . . . before memory has faded and because they facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" State v. Jones, 224 N.J. 70, 87 (2016) (quoting Herrera, 187 N.J. at 504). As the Court recognized in Henderson, "the risk of misidentification is not heightened if a showup is conducted immediately after the witnessed event, ideally within two hours." 208 N.J. at 259. Also, the fact a suspect is handcuffed and in police custody does not automatically render an identification impermissibly suggestive. State v. Wilson, 362 N.J.Super. 319, 327 (App. Div. 2003). However, prior to a showup identification, officers "should instruct witnesses that the person they are about to view may or may not be the culprit." Henderson, 208 N.J. at 261. Here, there is no dispute Detectives Gigante and Johnson gave this instruction to Romer and Viola.
Defendant argues, as he did before the trial court, the police officers impermissibly conducted the showup more than two hours after the incident, contrary to the principles enunciated in Henderson and the Attorney General's Office Showup Identification Procedures Worksheet. Again, we disagree.
Attorney General Guidelines for Preparing and Conducting Out-of-Court Eyewitness Identifications (Oct. 1, 2012).
As the judge correctly noted, "the show[]up occurred just outside of two hours after the robber[ies]," but "the [two-hour] window is just one factor among many system variables." We also concur with the judge's finding that "this is not a case where show[]ups occurred so far after the event that they are inherently unreliable." Further, considering the length of the time the victims were in defendant's presence during the incident, the limited period that elapsed before they positively identified defendant, the fact their descriptions of defendant's features matched his appearance when he was arrested, and the safeguards employed by the detectives who transported Romer and Viola for the showup identifications, we are convinced the judge correctly determined the out-of-court identification testimony should be heard by the jury.
Regarding Point III, defendant contends the judge erred in denying his request to charge the jury on intoxication. We are not persuaded.
Proper jury instructions "are essential for a fair trial." Washington v. Perez, 219 N.J. 338, 351 (2014) (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (internal quotations omitted)). Defendants are entitled to instructions on defenses if able to show "there exists evidence sufficient for a reasonable jury to find in [their] favor." State v. Sloane, 111 N.J. 293, 303 (1988) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)).
Voluntary "intoxication of the actor is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). As our Supreme Court has noted, "N.J.S.A. 2C:2-8(a) permits evidence of intoxication as a defense to crimes requiring either 'purposeful' or 'knowing' mental states but it excludes evidence of intoxication as a defense to crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986). To qualify as a defense negating an element of the offense, "the intoxication must be of an extremely high level." Id. at 54. "What is required is a showing of such a great prostration of the faculties that the requisite mental state was totally lacking." Ibid. (alterations in original) (citations omitted) (quoting State v. Stasio, 78 N.J. 467, 495 (1979)). A trial court may consider several factors in making its determination of whether a defendant was so intoxicated that there was a "prostration of faculties," including:
the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.
[Cameron, 104 N.J. at 56.]
Here, the judge specifically cited Cameron when determining whether a voluntary intoxication charge was warranted. Based on the evidence adduced at trial, the judge found one victim "described the defendant as appearing . . . to be on something" during the incident, but all three victims "described [defendant as] an individual who was well controlled." Further, the judge concluded the victims' testimony showed defendant "gave clear definitive instructions to each of the three as to what they were to do" and "[n]one of what . . . defendant did during this time period at [the victims' office] suggests that his conduct was not consistent with his purpose to get . . . whatever property. . . would be of value to him." Additionally, the judge concluded that "in terms of the odor of the intoxicant," none of the victims "said that they had any knowledge with regard to the controlled dangerous substances that they would be able to smell anything different." Also, the judge noted "[t]here were no tests done" to establish the presence of intoxicants in defendant's system on the day of the incident.
Moreover, the judge found defendant's "ability to recall was not hampered," as "[h]e recalled specific events" from the incident when he sat for his custodial interview, including "the order of [the victims] who came in[to]" the office and "how he addressed each of them." Further, the judge concluded defendant was able to tell Detective Gigante "why he parked [the stolen car] in a certain spot, ditching the phones and the keys . . . and things of that nature. He recalled very specific conduct."
Under these circumstances and considering the judge previously credited Detective Gigante's suppression hearing testimony that defendant did not seem to be under the influence of alcohol or narcotics during his custodial interview, we discern no error in the judge's refusal to charge the jury on voluntary intoxication.
Regarding Point V, defendant newly argues his certain persons convictions must be reversed because there is no evidence he "waived his right to have each element of those charges proven beyond a reasonable doubt." This argument is unavailing.
It is undisputed the judge did not personally engage defendant in a colloquy to determine if he knowingly and voluntarily agreed to the stipulation negotiated between counsel regarding his prior conviction for a predicate offense. However, because defendant did not raise this issue during his trial, he "bears the burden of establishing that the trial court's actions constituted plain error." Ross, 229 N.J. at 407 (citation omitted). Defendant has not met this burden.
The Supreme Court of the United States has recognized that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316 (1979). A defendant can nonetheless waive the requirement that the State prove each element beyond a reasonable doubt through a valid stipulation. See State v. Bailey, 231 N.J. 474, 477 (2018).
"The 'certain persons' subject to prosecution under N.J.S.A. 2C:39-7 are those who previously have been convicted of a particular offense identified within that statute. Proof of a prior conviction for an enumerated offense is a necessary predicate to prove a certain persons charge." Ibid. "In the majority of [certain persons] cases, . . . evidence is proffered through stipulation." Ibid. This is so because when "a defendant chooses to stipulate, evidence of the predicate offense [at trial] is extremely limited." Id. at 488. When the defendant agrees to stipulate, "[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that . . . bar a convict from possessing a gun[.]" Id. at 488 (first alteration in original) (quoting Old Chief v. United States, 519 U.S. 172, 190-91 (1997)).
Absent a stipulation, of course, the State is required to introduce evidence establishing defendant has been convicted of a predicate offense as identified under the statute. Therefore, many defendants choose to stipulate to a predicate offense to avoid "a risk of unfair prejudice." See Old Chief, 519 U.S. at 18586.
Here, the parties stipulated through counsel that defendant waived his right to require the State to prove the third element of the certain persons offense. And the judge communicated this stipulation to the jury in defendant's presence.
On appeal, defendant cites no binding precedent to support his argument the judge was obliged to conduct a colloquy with him on the record to ensure defendant's waiver was knowing and voluntary, nor does the language in Bailey support any such categorical requirement. In fact, the Court noted in Bailey that "[p]rovided . . . the stipulation is a knowing and voluntary waiver of rights, placed on the record in defendant's presence, the prosecution is limited to announcing to the jury that the defendant has committed an offense that satisfies the statutory predicate-offense element." 231 N.J. at 488 (emphasis added). The underscored language referring to a defendant's "presence" would be superfluous if the trial court were required to question a defendant personally to establish the stipulation was made knowingly and voluntarily. The clear implication in Bailey is that if the defense strategy shifts and a defendant no longer accepts the stipulation previously presented to the court as an agreement between the parties, it is incumbent on counsel to alert the trial court so alternate arrangements can be made for the State to prove the third element by introducing evidence of a predicate conviction.
In view of the principles enunciated in Bailey, and considering defense counsel agreed to the stipulation at issue, defendant did not object to it when it was subsequently read to the jury, and the judge told jurors before they deliberated on the certain persons charges that notwithstanding the parties' stipulation, "undisputed facts can be accepted or rejected by the jury in reaching a verdict," the judge did not err by failing to ask defendant if he knowingly and voluntarily agreed to the stipulation.
Even if we assumed, which we do not, the judge erred in accepting the stipulation, reversal of defendant's convictions on the certain persons charges would be unwarranted since any such error was invited. See State v. Jenkins, 178 N.J. 347, 358 (2004). That is to say, the judge relied on the representations made by defense counsel that the State need not prove the predicate offense element of the charge. We also presume the State would have had little difficulty meeting its burden of proof in establishing the predicate offense, given defendant's criminal history.
Turning to defendant's sentencing arguments under Point VI, he contends: his sentence is "manifestly and unduly punitive"; the judge engaged in structural error by ruling on certain aggravating and mitigating factors before permitting defendant "a meaningful opportunity to allocute," and the judge's "imposition of consecutive sentences violated the dictates of Yarb[]ough and Torres."
We address defendant's allocution argument first. Because it was not raised at sentencing, we review it under the plain error standard. R. 2:10-2.
There is no question about the importance of an allocution. The right of allocution "reflects our commonly-held belief that our civilization should afford every defendant an opportunity to ask for mercy." State v. DiFrisco, 137 N.J. 434, 478 (1994). This right is codified in Rule 3:21-4(b), which in relevant part provides:
Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment.
The defendant may answer personally or by his or her attorney.
"[W]hen a trial court fails to afford a defendant the opportunity to make an allocution, in violation of Rule 3:21-4(b), the error is structural, and the matter must be remanded for resentencing without regard to whether there has been a showing of prejudice." State v. Jones, 232 N.J. 308, 319 (2018) (citing State v. Cerce, 46 N.J. 387, 396-979 (1966)).
Here, defendant was not denied the right to allocute. Instead, he spoke at length after the judge granted the State's extended term motion but before the judge imposed sentence, consistent with defense counsel's request at sentencing. Moreover, the record makes clear the judge made no binding findings before allowing defendant to personally address the court, as evidenced by the fact that after defendant spoke, the judge invited counsel to let him know if there was "anything else" the attorneys "wish[ed him] to consider with regard to what the appropriate sentence should be" before the judge imposed sentence. In response, defense counsel accepted the judge's invitation and made additional arguments on defendant's behalf. Given these facts, defendant was not deprived of his right to allocution.
Finally, we address defendant's overlapping arguments that his aggregate sentence is "manifestly and unduly punitive," and violates the standards enunciated in Yarbough and Torres.
We review sentences under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006). Under that standard, a "reviewing court must not [simply] substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Rather,
[t]he appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In imposing a sentence, the judge "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). A trial court must "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, 117 N.J. at 215.
When deciding whether to impose a consecutive sentence, trial courts are to consider the following Yarbough factors:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors; [and]
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.
[100 N.J. at 643-44.]
"[T]he reasons for imposing either consecutive or concurrent sentences should be separately stated in the sentencing decision[.]" Id. at 643. Recently, the Court reinforced the standards for imposing consecutive sentences and held that "essential to a proper Yarbough sentencing assessment" is "[a]n explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding." Torres, 246 N.J. at 268. Sentencing judges should be "mindful that aggravating and mitigating factors and Yarbough factors, as well as the stated purposes of sentencing in N.J.S.A. 2C:1-2(b), in their totality, inform the sentence's fairness." Id. at 272.
Here, the judge found, and gave significant weight to aggravating factors three (risk of re-offense), six (criminal history), and nine (need to deter), N.J.S.A. 2C:44-1(a)(3), (6), and (9), and found no mitigating factors applied. In assessing defendant's risk of re-offense, the judge noted defendant's "long history of recidivism." And in highlighting defendant's criminal history, the judge determined defendant had "[fifteen] felony convictions "and "[thirteen] misdemeanor disorderly persons convictions." The judge concluded "since 1974, defendant has been committing felonies rather consistently." Further, the judge found defendant needed to be deterred. He found defendant had served "lengthy State and Federal sentences" and acknowledged to law enforcement that he "can't function in society anymore." Further, the judge found "[t]he seriousness of his criminal activity will continue to match the seriousness of his substance abuse .... [But h]e cannot blame his addictions for every crime and society clearly needs protection." These findings are amply supported by competent, credible evidence in the record.
Regarding defendant's argument the judge conducted an incomplete Yarbough analysis in imposing several consecutive sentences, we are not convinced. In fact, after he acknowledged the need to analyze the Yarbough factors, the judge concluded the three victims should be considered separately and the "Yarbough factors . . . supported] . . . consecutive sentences for each of the robberies." The judge reasoned that "defendant could have robbed the first victim . . . and then left." Similarly, the judge concluded defendant "could have simply tied . . . up [the second victim] and left. But he robbed him." Further, the judge found that although the first two victims "offered and even encouraged . . . defendant to let them call [the] third victim. . . to keep him from coming into the business[,] . . . defendant . . . did none of these things." Additionally, the judge concluded "certain firearms offenses . . . run consecutive based upon the nature of those offenses."
Mindful of our deferential standard of review of a judge's sentencing decision, and recognizing the multiple victims involved in this matter, the judge's thoughtful analysis of the facts, and his explanation for imposing consecutive, as well as concurrent sentences, we are satisfied the judge correctly determined under Yarbough that consecutive sentences were warranted in this matter. Moreover, given that defendant committed multiple serious crimes and targeted three victims, the judge's imposition of consecutive sentences for defendant's offenses does not "shock [our] judicial conscience." Roth, 95 N.J. at 364-65.
However, our review of the aggregate sentence is impeded by the lack of an explicit statement from the judge about the "overall fairness" of the sentence imposed, as required under Torres. 246 N.J. at 268. For that reason alone, we are constrained to vacate the aggregate sentence and remand for resentencing.
Lastly, we find no merit in defendant's argument that because he was sixty-four years old when sentenced, the length of his sentence is improper. R. 2:11-3(e)(1)(E). Indeed, our Supreme Court has instructed that "[a]n older defendant who commits a serious crime . . . cannot rely on age to avoid an otherwise appropriate sentence." Torres, 246 N.J. at 273.
To the extent we have not addressed defendant's remaining arguments, it is because they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; vacated and remanded in part for resentencing. We do not retain jurisdiction.