Opinion
DOCKET NO. A-5557-12T4
03-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS A. PADILLA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Susan L. Berkow, Special Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-0839. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Susan L. Berkow, Special Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On May 26, 2011, a Middlesex County grand jury charged defendant, Luis Padilla, with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three).
Following a jury trial, defendant was found guilty as charged on all counts. The trial court sentenced defendant to a term of fifty years to life imprisonment for murder, subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed concurrent terms for the underlying weapons charges.
On appeal, defendant presents the following issues for our consideration:
POINT I
WHEN PRESENTED WITH A DEFENSE REQUEST FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER BASED UPON THE NUMEROUS MOTIVE-TO-KILL SCENARIOS SUGGESTED BY INTERROGATING DETECTIVES TO DEFENDANT, THE JUDGE SHOULD HAVE EITHER: (1) GRANTED THE REQUEST AND INSTRUCTED THE JURY ON PASSION/PROVOCATION MANSLAUGHTER, OR (2) INSTRUCTED THE JURY THAT THE SCENARIOS SET FORTH IN THE DETECTIVES' QUESTIONING WERE NOT EVIDENCE, AND WERE NOT TO BE CONSIDERED BY THE JURY IN DELIBERATING ON THE MURDER CHARGE. SIMPLY DENYING COUNSEL'S REQUEST WAS AN INSUFFICIENT RESPONSE THAT LEFT THE JURY FREE TO CONSIDER THE DETECTIVES' QUESTIONS AS EVIDENCE WITHOUT THE CORRESPONDING LESSER-OFFENSE INSTRUCTION. (Partially Raised Below).
POINT II
THE MEDICAL EXAMINER OFFERED AN IMPROPER "NET OPINION" THAT BLOOD FROM THE SHOOTINGS WOULD NOT HAVE LANDED ON THE PERSON FIRING
THE GUN, WITHOUT PROVIDING ANY REASONS TO THE JURY FOR THAT OPINION. (Partially Raised Below).
POINT III
THE SENTENCE IMPOSED IS ILLEGAL; MOREOVER MERGER IS REQUIRED.
We have considered these arguments in light of the record and applicable law, and we affirm the convictions, but remand to the trial court for resentencing and merger.
I.
We discern the following facts from the record. Defendant did not testify at his trial. On November 24, 2010, the victim, Kevin Meisnest, a tow-truck operator at Car Guys Auto Repair (Car Guys) located in Edison Township, did not report for work, which was "very unusual." Meisnest lived in a second-floor apartment of a building located on the Car Guys' property. After attempts to contact Meisnest, Alan Barbarite, the owner of Car Guys, called the Edison Police Department for a welfare check. Officers Michael Horvath and Edwin Rodriguez responded. Meisnest was found in his kitchen lying face down in a pool of blood, his head "wedged in between the wall and the oven," shirtless, with his pants pockets inside out and his wallet and money on the floor. Paramedics responded and Meisnest was pronounced dead.
Detective William Bohn photographed the scene inside the apartment. He also examined the outside of the building and found no evidence of forced entry on the first or second floors. The first floor of the building was vacant office space. Likewise, nothing of evidential value was found inside the first-floor space. A search around the building and of nearby dumpsters revealed nothing of evidential value.
Investigator James Napp processed the scene and collected evidence. A spent bullet was found after it fell from the victim's head. Another spent projectile was found under the victim's body. A bullet hole was observed in the wall next to the body. Napp found a live .357 magnum bullet on the table. He collected numerous other items, including beer cans and bottles, drug paraphernalia, and cigarette butts. These items were tested for fingerprints, but no useful prints were obtained.
Barbarite maintained a twenty-four hour video surveillance system of the Car Guys' property, and its view included the entrance to the victim's apartment. A second surveillance camera faced towards the entrance of the Car Guys' parking lot. A neighboring business also maintained a twenty-four hour video surveillance system that captured the Car Guys' lot and the entrance to the apartment.
Investigator Michael Daniewicz looked at the surveillance footage with Barbarite who identified the truck that was last seen going in and out of the parking lot as a Ford pickup truck belonging to defendant. Barbarite knew defendant and his truck, as defendant had previously worked at Car Guys for at least a year. Barbarite continued to see defendant on a regular basis, as defendant was a friend of the victim, and Barbarite had socialized with them both at Meisnest's apartment and defendant's house, located approximately a half-mile from Car Guys. Defendant was at Meisnest's apartment frequently and his truck would be in the lot. Defendant now worked at Meineke, about a quarter-mile from Car Guys, and Barbarite would see defendant's truck there when he passed it.
Barbarite could identify the truck for multiple reasons. First, he worked with cars for over thirty years. Next, it sits low to the ground so he recognized it as a two-wheel drive. It also has a longer bed in the back and a two-tone color. He recalled that defendant's truck had a spare tire on the front driver's side wheel that did not have a center cap. Barbarite pointed out on the surveillance video that the truck in the video's front driver's side wheel was a spare with a different rim, as on defendant's truck.
A few days later, Barbarite contacted police when he remembered the surveillance system had audio recording. The audio was usually on mute so as not to hear feedback all day. The audio and visual surveillance were synchronized because they were both on one recorder. Barbarite did not recall resetting or correcting the clock on the security system, and admitted that the clock may be incorrect.
Investigator Brian Gilmurray collected the video systems from Car Guys and from the neighboring business to allow the police to develop a timeline of the night in question, despite the inaccurate clocks on both systems. Each of the recordings were played at trial. There was no audio available from the neighboring business' system.
Gilmurray was able to deduce that the Car Guys' system was approximately six minutes off, while the other was about twenty-two minutes off of "real time."
Gilmurray testified to the following events on November 23, 2010: at 5:15 p.m., the victim parked his flatbed truck in the lot and at 6:09 p.m., he drove away in it. At 9:51 p.m., the victim's flatbed returns with two occupants, who both exit the truck. At 11:10 p.m., two people get into the flatbed and it begins to back out, but then stops and the driver exits the vehicle to engage in brief conversation with someone in a pickup truck; both vehicles then leave. At 11:19 p.m., the pickup truck returns to the lot and the driver enters the doorway leading to the victim's apartment. At 11:25 p.m., the flatbed returns to the lot, Meisnest gets out, slams the door, saying "motherfucker" and "fuck," and enters the building after which someone is heard saying "Lou." It appeared the victim punched or kicked his own truck as he cursed and also said, "Lou, fuck you, what the fuck," when exiting his vehicle. Five gunshots are heard on the video at 11:32 p.m., and the pickup truck is seen leaving the lot at 11:34 p.m.
The pickup truck appeared to be two-toned in the Car Guys' video and in the other video, had a dark front wheel and a shiny rear wheel. Gilmurray tried to get the audio enhanced, but could not; he opined the sounds heard were gunshots, but he could not tell what kind of gun was fired. Gilmurray printed out still images of the pickup truck on the video to compare to defendant's truck. Various consistencies were noted, including a gap between the bumper and fender on the front driver's side, discoloration of the back bumper, and a matching "hitch" and exhaust tailpipe.
T.T., the owner of Meineke where defendant worked, testified that defendant did not show up for work on November 24, 2010, which was unusual. He confirmed that defendant drove a two-tone pickup with an unmatched driver's side wheel. That morning, T.T. tried calling defendant, but he did not answer. Later, T.T. spoke to defendant's mother, and eventually to defendant's aunt, Aida Padilla, who confirmed that defendant was in New York at her apartment.
We use initials to protect the confidentiality of the witnesses.
Since Aida Padilla shares the same last name as defendant, we shall refer to her by her first name. We intend no disrespect. --------
Dion Vandervoort, defendant's girlfriend and mother of their son, lived with defendant in the basement of his family home in Edison. She met the victim a few times and knew he fixed cars with defendant. She testified that on November 23, 2010, defendant was at work until 6:00 p.m. She saw him after work when he was in and out of the house working in the garage, until about 9:30 p.m. She later saw him at about 11:00 p.m., but did not see him after that. She fell asleep and did not hear him leave the house. She awoke at 4:00 a.m. and defendant was not home, so she called his cell phone, but there was no answer. Beginning at about 5:30 a.m., Vandervoort called defendant repeatedly for hours, but defendant did not answer. She eventually learned from defendant's mother that he was at the Brooklyn home of his aunt. She testified that they did not visit Aida often, but they had just visited her with their son on November 22, 2010.
On November 24, 2010, Investigator Daniewicz contacted Sprint Nextel and made an emergent request to find defendant's location. Defendant's phone was communicating with a cell phone tower located in Brooklyn, New York. After determining defendant's relative lived there, they went to Brooklyn with the New York City Police. They knocked on Aida's door, identified themselves, and asked to speak to her. She allowed them to enter and when asked if defendant was there, she said he was not, that he was in Asbury Park. Aida's home health aide voluntarily pointed out to them that defendant was in one of the bedrooms. Daniewicz knocked and asked defendant to come out, which he did about thirty to forty-five seconds later. He was dressed in oversized black capri-type pants, an oversized white sweatshirt, suspenders, and women's sneakers.
Defendant agreed to give a statement to the investigators at the Brooklyn precinct. First, defendant showed police the location of his pickup truck. Defendant gave permission to search his personal belongings at Aida's and the truck. Daniewicz characterized defendant as "overly cooperative."
Defendant's clothing seized after his arrest were negative when tested for blood. Seat and mat swatches from defendant's truck were also negative for blood. No DNA evidence of note was discovered when testing "the cigarette butts . . . fingernail clippings from both hands of [Meisnest]; and a pair of pants of [Meisnest]; [and] a pair of latex gloves [from defendant's truck]."
In his statement at the Brooklyn precinct, defendant admitted to being at the victim's "no later" than 8:30 p.m. on November 23, 2010, then going to see his aunt. He said he went to Brooklyn to drive her around and assist her because she is handicapped and there was a recent death in the family. He said he skipped work, but had a family member call his boss for him. When investigators confronted him that there was video of him at a later time in the Car Guys' lot, he said he was back at the apartment at about ten, ten-thirty for about ten minutes to smoke marijuana with the victim. He attributed his change of story to the fact that he was reluctant to tell police he was smoking marijuana.
During the interrogation, police asked defendant if he killed Meisnest and what happened that night, but he repeatedly denied any involvement. Police suggested various scenarios of what could have happened between the two men escalating into the victim's murder. They proposed a "tussle" and "pushing and shoving" that he "got carried away," but defendant steadfastly denied any such situation. He told police that in the video, the two were talking about coming back to smoke and that he went to do something quickly before coming back. He said he waited in the hallway for Meisnest because he arrived first. He said they "[b]ullshitted a couple minutes" and smoked and then he left because Meisnest was drunk.
There were calls placed from the victim's phone to defendant's on the night of November 23, 2010 at 10:06, 10:08, 10:09, 10:52, 11:20, 11:21, and 11:23 p.m.
Dr. Alex Zhang, the medical examiner, testified that the cause of death was multiple gunshot wounds of the head, chest, and back. The victim was hit by five shots, and Zhang believed that he could determine the order of these shots based upon the likely movements of the victim as the shots were delivered. He testified that the first shot, to the chest, was fired between one and three feet away, causing "loose" gunpowder stippling, while the second shot, delivered from a similar distance, hit the "lateral left side of the chest" near the armpit. These bullets were recovered from inside the body. The third shot was from farther away and exited the left shoulder, while the fourth shot was to the back of the head from enough distance that no stippling was present. The last shot was to the "right back top of the head" and went into the victim's brain. The fourth and fifth shots exited the body.
Dr. Zhang opined that the victim's blood would have been unlikely to travel the distance back to the muzzle of the gun, or farther, onto the shooter. He also stated Meisnest's blood-alcohol was 0.218 grams per deciliter, which Dr. Zhang called a "high alcohol content" and there was a presence of marijuana metabolites in his system.
C.G., Aida's home health aide, testified that she was sleeping at the apartment when police arrived. When she woke up on November 24, 2010, defendant was asleep on Aida's couch and had changed from his work clothes. She testified that when police knocked on the door, everyone thought it was the landlord, because they had "landlord problems," so they initially hid.
Aida testified that she told defendant to hide because she thought it was the landlord knocking. She confirmed that defendant had been there earlier that week. She admitted that, in a formal statement, she had told police defendant arrived at 8:00 p.m., but now said it was before 10:00 p.m. Aida said defendant "seemed fine" when he arrived, but acknowledged that he was rambling about "Papa Vinny," a deceased relative. She thought something was wrong with him at that time. Aida then called defendant's parents and left a message he was there. The next morning, she testified that defendant said he was not going to work and she called his boss to say he was not feeling well.
Aida testified that a young man came to the door at 1:30 a.m. on November 24, 2010, with defendant's truck keys in his hand. She demanded the keys and the man eventually relinquished them, but said the truck could be driven without keys anyway and laughed as he left. She said she never told defendant about this conversation, or about the man, to protect him. She admitted that she did not mention this to police in her initial statement.
Aida denied ever giving defendant a gun. She initially denied ever having a .38 Colt revolver which had been owned by Papa Vinny, but then admitted she had it briefly in 1984 or 1985, but it was later stolen. It was stipulated that defendant did not have a gun permit.
Angel Padilla, defendant's father, testified that police searched his house and he gave them a bag of bullets that was in his car. His initial testimony seemed to indicate that he believed that some of the bullets were missing, but on cross-examination, he seemed confused and asserted only one was missing because it had been tested by a ballistics expert. He had been in possession of the bullets for more than ten years when Aida gave them to him as a memento of Papa Vinny, but he never owned a gun.
Ballistics expert, Detective Mark Matthews, testified that the four spent projectiles recovered (two from the kitchen, two from the victim's body) were all fired from the same gun. He also testified that the bullets from Angel Padilla were all .38 special caliber and could be fired from a .38 Colt revolver, but admitted the spent rounds found in the house were unable to be so specifically typed; rather, he could only classify them by a "class" of calibers, including .357, .38, and 9-mm.
D.T., a friend of the victim, testified he spent time with both defendant and Meisnest two days prior to Meisnest's death and did not know of any problems between the two men, but he spent much more time with the victim than he did with defendant. D.T. had spoken with the victim the evening of his death, and knew that the victim was with his cousin, B.B. D.T. declined an invitation to go with Meisnest and B.B. to the Park Pub in Highland Park, and he did not know if anyone else was with them.
B.B. testified that he had been with his cousin on November 23, 2010. Meisnest drove his flatbed Car Guys truck to B.B.'s home where they had dinner with B.B.'s roommate. Another man, J.T., was there, but did not eat with them. After dinner, B.B. and Meisnest went to Park Pub in the victim's truck, then to Meisnest's apartment to feed his cats. They stayed for a little time, listening to music and drinking.
B.B. estimated the time to be about 8:00 p.m. when they left the apartment. B.B. recalled Meisnest having a conversation with a "guy in [a] pickup truck," who the victim referred to as "Luis," but B.B. did not recognize the truck. B.B. testified that Meisnest and the man in the truck appeared to have had some sort of disagreement, but he did not overhear what it was about. Thereafter, the victim dropped B.B. off at his home, and the next morning B.B. learned from D.T. that Meisnest was dead.
The jury found defendant guilty of all counts. This appeal followed.
II.
Defendant contends that the trial judge erred by denying counsel's request to include an instruction on passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser-included offense to murder. Defendant argues that the interrogation statements by police suggesting a "tussle" that "got carried away" mandated a passion/provocation charge. Further, defendant asserts the judge should have been clear that the scenarios presented to defendant by the officers during the Brooklyn interrogation, the video of which was viewed by the jury, were not evidence to be considered in their deliberations, or, if the scenarios were to be considered evidence, the lesser-included offense instruction should have been given because the passion/provocation manslaughter instruction then had a rational basis in the record.
Appropriate and proper jury charges are essential to a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). If, as here, defense counsel requested a lesser-included offense instruction, the standard of review regarding the denial of that request is a plenary consideration of whether "the evidence presents a rational basis on which the jury could acquit the defendant of a greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (2004). The question is not whether the jury is likely to accept the defendant's theory, but whether it would have a rational basis on which to do so. State v. Mejia, 141 N.J. 475, 489 (1995). The failure to instruct the jury on a lesser-included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction. Brent, supra, 137 N.J. at 118.
The State argues that defendant's complete denial during the interrogation of any crime was inconsistent with a passion/provocation charge. Further, Investigator Daniewicz testified that the questions were an "investigative interrogation technique" to get defendant talking, based on deception. The State asserts that no limiting instruction was necessary with respect to the video of the interrogation, as it was clear they were simply questions, not evidence, and defense never raised the issue during trial.
Lesser-included offense instructions are intended to avoid "the possibility of an all-or-nothing verdict." State v. Muniz, 118 N.J. 319, 332 (1990); see State v. Short, 131 N.J. 47, 54 (1993) (explaining that a jury "may be tempted to find defendant guilty of a crime he or she did not commit simply because it prefers to convict on some crime rather than no crime at all"). N.J.S.A. 2C:1-8(e) directs that a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The Supreme Court has long interpreted the statute's directive as requiring satisfaction of a two-part test: "(1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006).
As a lesser-included offense of murder, passion/provocation manslaughter must be charged, even absent a request, where it is "clearly indicate[d]" by the proofs. State v. Jenkins, 178 N.J. 347, 361 (2004). "[W]here the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury." State v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319 (1980)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); see also State v. R.T., 205 N.J. 493, 510 (2011) (Long, J., concurring) (stating that "the need for the charge must 'jump off' the proverbial page").
In order to decide whether a passion/provocation manslaughter instruction was "clearly indicated" by the proofs, we must explore the elements of that offense and the facts of this case. See State v. Crisantos, 102 N.J. 265, 273-78 (1986). N.J.S.A. 2C:11-4(b) provides that a "[c]riminal homicide constitutes manslaughter when . . . [i]t is committed recklessly; or . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation."
There are four components to passion/provocation manslaughter:
(1) reasonable and adequate provocation; (2) no cooling-off time in the period between
the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying. State v. Mauricio, 117 N.J. 402, 411 (1990). The first two elements of the offense are objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury. State v. Robinson, 136 N.J. 476, 491 (1994).
[State v. Josephs, 174 N.J. 44, 103 (2002).]
In deciding whether an instruction on passion/provocation manslaughter is warranted, courts should view the evidence in a light most favorable to the defendant. Mauricio, supra, 117 N.J. at 412. "[T]he judge must determine whether a reasonable fact-finder could conclude that the [defendant's] loss of self control was a reasonable reaction" to the victim's provocation. State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). The charge should only be withheld when "no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person." Mauricio, supra, 117 N.J. at 412.
The basis for defense counsel requesting the charge, despite being inconsistent with defendant's complete denial of the crime, was because of the interrogation video presented at trial. In the video, the investigators conjectured various scenarios that may have occurred in order to get defendant to talk, but to no avail. Daniewicz testified that the questions were a "ruse," not based in truth. It is clear the hypotheticals posed by the interrogators were made up and an interview technique. Defense counsel also stressed defendant's steadfast denial of any involvement in this crime. Therefore, there was no basis for a rational inference that defendant was in fact impassioned and did not cool off before committing the murder. There was no independent proof providing a basis for those findings. Mauricio, supra, 117 N.J. at 411. The trial court gave a thorough and exacting review of the facts to determine if there was a rational basis and found there was "simply nothing" in the record to support the charge. We agree.
We conclude there was no evidence that, if believed by the jury, would reasonably support a verdict of passion/provocation manslaughter. In the police interrogation video played to the jury, defendant repeatedly denied killing the victim and asserted that he was not there when the victim was killed. Defendant denied there was a fight with the victim in his apartment. Likewise, there were no signs of struggle at the crime scene. As such, there was no evidence that there was any provocation sufficient to require the charge.
Defendant argues alternatively, that if the charge was not given, the judge should have instructed the jury that the scenarios set forth in the detectives' questioning were not evidence. We note defendant did not request a limiting charge regarding this issue at any time. When "a defendant fails to object to a trial court's instructions, the failure to challenge the jury charge is considered a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013). The conviction will be reversed only if the error is "clearly capable of producing an unjust result." R. 2:10-2. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add this brief comment. Daniewicz stated repeatedly he did not have support for the motives he set forth in his questions to defendant, but was simply employing an interview technique. Moreover, there was no evidence that the jury was confused by the interrogation video. Therefore, defendant's assertion of plain error requiring reversal under Rule 2:10-2 is without merit. There was no error in the court's instruction, let alone plain error necessitating reversal of the charges.
III.
Next, we turn to defendant's contention that the medical examiner offered an improper "net opinion." We are not persuaded by defendant's argument that Dr. Zhang's opinion that the victim's blood would have been unlikely to travel the distance back to the muzzle of the gun, or farther, onto the shooter, constituted an impermissible net opinion. Appellate courts "apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
An expert's testimony
"may be based on facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject[.]"Experts must "'give the why and wherefore that supports the opinion,' and not present a mere conclusion." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 149 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372).
[Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)); see also N.J.R.E. 702, N.J.R.E. 703.]
"[B]are conclusions, unsupported by factual evidence or other data, are inadmissible as [they constitute] a mere 'net opinion.'" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 (2015) (quoting Townsend, supra, 186 N.J. at 494-95). The "prohibition against a 'net opinion' bars expert testimony based on unfounded speculation or mere possibilities." Costantino v. Ventriglia, 324 N.J. Super. 437, 451 (App. Div. 1999) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998)), certif. denied, 163 N.J. 10 (2000).
Dr. Zhang's opinion was founded upon his thorough review of the record, including photographs of the crime scene and his findings during the autopsy. In addition, he established his extensive qualifications. It is clear he possessed the specialized knowledge necessary to offer competent testimony about each of the bullet wounds and the distance of the respective shots from the shooter. This distance determines the migration of the blood splatter. He relied heavily on the crime scene photographs, finding there was no evidence of any blood "coming out" of the body, especially due to the fact that no blood was found on the victim's shoes and the pooled blood. He explained the factual basis for his opinion and the reasoning upon which his opinion was based. We therefore conclude that Dr. Zhang's opinion was not an impermissible net opinion.
IV.
Lastly, we address the legality of defendant's sentence. In reviewing a sentencing decision, we apply the deferential abuse of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). However, as always, we address issues of law de novo. Id. at 604. Specifically, we affirm if: (1) the trial court followed the sentencing guidelines; (2) findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not shock the conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).
The State moved for an extended term pursuant to N.J.S.A. 2C:44-3 and the court granted that motion. Pursuant to N.J.S.A. 2C:43-7(a)(6), for the crime of murder, a defendant is to be sentenced to a specific term of years between thirty-five years and life imprisonment, with a thirty-five year parole ineligibility term.
The judge failed to impose a sentence with a clearly defined base term. The judgment of conviction reflects the imposition of a sentence of "[fifty] years to life" with the requirement that defendant serve eighty-five percent of the "maximum term" without eligibility for parole under NERA. If defendant was sentenced to a maximum term of life imprisonment, his period of parole ineligibility would be eighty-five percent of seventy-five years, or sixty-three and three-quarter years. N.J.S.A. 2C:43-7.2(b). However, at the sentencing proceeding, the court stated that defendant was to serve a "mandatory term of fifty years[,]" which is inconsistent with the required period of parole ineligibility for a life sentence under NERA. The State concedes that the fifty-year parole bar imposed by the court was illegal, and thus remand is appropriate.
Finally, defendant argues that the sentencing judge should have merged the possession of a weapon for an unlawful purpose conviction with the murder conviction. The State agrees, as do we. There was no finding of a broader unlawful purpose than the commission of this murder; that conviction should have been merged with the murder conviction for sentencing purposes. State v. Tate, 216 N.J. 300, 312-13 (2013); State v. Diaz, 144 N.J. 628, 636-37 (1996).
Therefore, we affirm defendant's convictions, but vacate the sentence and remand for resentencing consistent with this opinion, as well as for the merger of the possession of a weapon for an unlawful purpose charge into the murder conviction. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION