STATE OF NEW JERSEY VS. FRANCIS J. PRETO

The record reveals the following facts. In 2008, defendant

was incarcerated in the Ocean County Jail. Around that time,

his wife filed for divorce. Defendant asked a fellow inmate,

Timothy Milton, to kill defendant's wife in exchange for

$10,000.

Defendant reportedly provided Milton with his wife's

address, and warned Milton that one of his wife's neighbors was

a state trooper. Rather than carry out the murder, Milton went

to the police and struck an arrangement whereby he would wear a

recording device in exchange for a plea deal.

On July 2 and 16, 2008, Milton surreptitiously recorded his

discussions with defendant regarding the details of their plan.

Based in part on the tapes, defendant was charged by an Ocean

County grand jury under Indictment No. 08-10-1638 for conspiracy

to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a) (count one),

and attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count

two). Milton was subsequently released, though he was soon

reimprisoned in the same facility on new charges.

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Upon learning that Milton had recorded their conversations

on behalf of the police, defendant began looking for someone who

would kill Milton. Two inmates, Jacarlos McKoy and Charles

Anderson, claimed they each discussed with defendant the

possibility of killing Milton in exchange for money. Another

inmate, Maurice Peace, claimed defendant approached him

regarding the possibility of killing Milton. Like Milton, Peace

also approached authorities and offered to wear a recording

device in exchange for a plea deal. Defendant was recorded

giving detailed instructions to Peace regarding how to carry out

the murder, and offering to obtain a handgun for Peace's use.

As a result of the recordings by Peace, on August 4, 2009,

an Ocean County grand jury issued superseding Indictment No. 09

08-1381, charging defendant with the original counts and two

additional counts: conspiracy to murder Timothy Milton, N.J.S.A.

2C:5-2 and 2C:11-3(a) (count three), and the attempted murder of

Timothy Milton, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count four).

Defendant moved to sever counts one and two from counts

three and four, but the judge, following oral argument, denied

the motion on January 22, 2010. The matter was subsequently

transferred to a second judge. On February 9, 2011, the second

judge granted the State's motion to exclude two defense

witnesses, two Ocean County corrections officers, who would have

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provided expert testimony on prison culture that inmates often

project "a tough image" in order to avoid abuse by other

inmates.

On February 15 and 16, 2011, a Driver1 hearing took place to

determine the admissibility of the audio recordings of

defendant's conversations with Milton and Peace. State v.

Driver, 38 N.J. 255 (1969). The second judge noted that the

recordings contained both audible and inaudible material. She

held the recordings to be admissible, but ordered the inaudible

portions be redacted.

A jury trial began on February 16, 2011, and ended on March

1, with a hung jury mistrial. Consequently, on May 7, 2011,

superseding Indictment No. 11-05-0884 was issued, and the case

was transferred back to the first judge.

On September 13, 2012, the State moved for reconsideration

of the court's February 16, 2011 decision ordering redaction of

the recordings made of defendant's conversations with Peace.

Defendant cross-moved to bar the recording and transcript

entirely. The judge held a second Driver hearing, including

direct and cross-examination of the officers who created the

recordings. At the end of the hearing, the judge granted the

1 State v. Driver, 38 N.J. 255 (1969).

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State's motion, and held that he would permit the recordings to

be played before the jury.

On September 20, 2012, the State again moved to exclude the

testimony of the corrections officers, just as it had done in

the previous trial. The judge granted the motion, holding that

the testimony of the officers was not relevant to the issue of

whether or not defendant lied, and that the testimony would

intrude upon the jury's prerogative to determine the credibility

of witnesses.

The re-trial took place before a jury between September 20

and October 10, 2012. The defense argued that defendant never

really intended to have anyone killed, but merely sought to

cultivate a violent image in order to protect himself from abuse

by other inmates. The jury convicted defendant of counts one,

two, and three, but acquitted defendant of count four.

On March 25, 2013, defendant was sentenced to sixteen years

in prison, subject to an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, on count two (which was merged with count

one), and sixteen years in prison, subject to an eighty-five

percent period of parole ineligibility pursuant to NERA, on

count three, to run concurrently with his sentence for count

two, but consecutively with the unrelated prison sentence he was

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then serving. The court found that defendant was entitled to

1003 days of jail credit and 699 days of gap-time credit on

counts two and three.

On appeal, defendant presents the following issues for our

consideration:

POINT I

THE TRIAL JUDGE ERRED IN GRANTING THE STATE'S MOTION TO BAR THE TESTIMONY OF TWO SHERIFF'S OFFICERS WHO WOULD HAVE TESTIFIED AS TO THE EFFECT OF JAIL CONFINEMENT ON AN INMATE'S NEED TO EXAGGERATE HIS PROPENSITY FOR VIOLENCE IN AN EFFORT TO PROTECT HIMSELF.

POINT II

WHILE THE DENIAL OF THE DEFENSE MOTION FOR SEVERANCE WAS REASONABLE, A STRONG CHARGE TO THE JURY, AS THE JUDGE INITIALLY STATED HE WOULD GIVE, WAS NECESSARY. WHEN THE TRIAL JUDGE FAILED TO GIVE ANY SUCH INSTRUCTION, THE DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

POINT III

THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO BAR THE SECOND SET OF RECORDED CONVERSATIONS FROM GOING TO THE JURY, AS THEY WERE VIRTUALLY INAUDIBLE.

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

II.

We begin with defendant's first argument: that the trial

court improperly barred testimony from two corrections officers

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regarding prison culture and the need for prisoners to project a

violent image in order to avoid abuse.

"The admission or exclusion of expert testimony is

committed to the sound discretion of the trial court." Townsend

v. Pierre, 221 N.J. 36, 52-53 (2015) (citing State v. Berry, 140

N.J. 280, 293 (1995)). We do not substitute our "own judgment

for that of the trial court, unless 'the trial court's ruling

was so wide of the mark that a manifest denial of justice

resulted.'" State v. Kuropchak, 221 N.J. 368, 385 (2015)

(quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

At the motion hearing, defense counsel categorized the

testimony of the corrections officers under N.J.R.E. 404(a)(1)

and 405(b) as "[e]vidence of a pertinent trait of the accused's

character offered by the accused[.]" According to defense

counsel, the "pertinent trait" in this case was defendant's

propensity to "talk[] tough, that he's a bluster[er], he talks

tough, that he's an exaggerator . . . ." Counsel proffered the

testimony of the officers as evidence,

that inmates who are, who are weak and who are white and who are small are preyed upon by other inmates in the jail, and that's to avoid being preyed upon, he talked tough and you pretend you have connections and you have capabilities of doing things that you don't really have, just to, just for survival.

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Based on the proffer offered by the defense, the judge

found the testimony to be irrelevant to any character trait of

the defendant, particularly in light of the defense's theory

that defendant was a habitual liar both before and during his

incarceration. The judge also held that "the jury is well

within their ability to determine the believability of the

threat, what was intended by the threat, whether it was

purposeful."

On appeal, defendant contends that the testimony of the two

corrections officers should have been admitted because it was

directly relevant to defendant's primary argument at trial, that

he was merely acting tough in order to protect himself from

abuse in prison. Defendant also argues that the officers should

have been permitted to testify as experts, under N.J.R.E. 702,

in the field of prison culture. Alternatively, defendant argues

that the officers' testimony should have been permitted as lay

opinion testimony, under N.J.R.E. 701, regarding their

observations of prison culture.

We affirm the decision of the trial court because the

officers' putative testimony concerned the credibility of

defendant's out-of-court statements regarding his intention to

kill the victims. See State v. Vandeweaghe, 177 N.J. 229, 231

(2003). "'[C]redibility is an issue which is peculiarly within

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the jury's ken and with respect to which ordinarily jurors

require no expert assistance.'" State v. Frisby, 174 N.J. 583,

595 (2002). Likewise, "[t]he phenomenon of lying, and

situations in which prevarications might be expected to occur,

have traditionally been regarded as within the ordinary facility

of jurors to assess." Vandeweaghe, supra, 177 N.J. 229 at 239

(quoting State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991),

aff'd, 130 N.J. 554 (1993)). Based upon the defense's proffer

at the September 20 hearing, the officers were essentially being

called to bolster defendant's theory that his statements were

mere "puffing," even though their testimony was ostensibly

targeted towards the credibility of prisoners generally. The

trial judge was therefore within his discretion in precluding

the officers from testifying at trial.

III.

Next, we address defendant's contention that he was denied

due process of law because the court failed to give an

adequately "strong" jury instruction regarding the jury's duty

to consider each attempted murder charge separately from the

other. Defendant argues the court should have given an "other

crimes" jury instruction like that given when evidence of other,

unrelated crimes is presented at trial under N.J.R.E. 404(b).

We disagree.

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N.J.R.E. 404(b) only requires an "other crimes" jury

instruction where evidence of an "uncharged" other crime is

introduced at trial for some permissible purpose, such as to

prove motive, opportunity, or intent. See State v. Sheppard,

437 N.J. Super. 171, 193 (2014); State v. Rose, 206 N.J. 141,

179-80 (2011). The instruction must "inform the jury of the

purposes for which it may, and for which it may not, consider

the evidence of defendant's uncharged misconduct." Id. at 161.

However, N.J.R.E. 404(b) does not apply if "the evidence does

not involve some other crime, but instead pertains to the

charged crime." Ibid.

In the case of multiple charged offenses that have not been

severed, a court is not required to deliver an N.J.R.E. 404(b)

"other crimes" jury instruction. Rather, it is sufficient if

the court delivers the model charge regarding separate

consideration of each count, Model Jury Charge (Criminal),

"Criminal Final Charge-Complete, Multiple Charges" (2014). See

State v. Pitts, 116 N.J. 580, 603 (1989).

Here, the evidence at issue pertained to a charged crime,

and did not fall within the ambit of N.J.R.E. 404(b).

Furthermore, the court delivered an instruction tracking the

required model jury charge. In his charge, the judge stated,

[t]here are four offenses charged in the indictment. They are separate offenses and

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separate counts of the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.

This instruction, reiterated twice later in the charge, was

accurate and provided sufficiently clear guidance to the jury.

See Pitts, supra, 116 N.J. at 603 (stating that, in a case where

multiple charges are joined, it is "adequate" if the court

"caution[s] the jurors to deliberate separately on each of the .

. . counts, and to return a judgment of conviction only if

convinced that each element of the individual counts had been

proved beyond a reasonable doubt.").

IV.

Defendant argues the court abused its discretion by

admitting the recordings of defendant's conversations into

evidence. Defendant essentially contends that the tapes should

not have been admitted because substantial portions of the

recordings are inaudible. He concedes that there is much

probative evidence contained in the recordings, but argues they

are "seriously prejudicial" because they are "virtually the only

evidence" against defendant on count three. We disagree.

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The trial judge held a full Driver hearing with witnesses.

He listened to the recordings in question, and found that,

although there were inaudible portions of the recordings, they

were reliably made, authentic, and extremely probative.

Defendant's argument fails to show how the court may have

incorrectly weighed the reliability and probative value of the

recordings against any undue prejudice they may have caused. It

is well settled that, "if a tape is partially intelligible and

has probative value, it is admissible even though substantial

portions thereof are inaudible." State v. Nantambu, 221 N.J.

390, 406 (2015) (quoting State v. Zicarelli, 122 N.J. Super.

225, 239 (App. Div.), certif. denied, 63 N.J. 252, cert. denied,

414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)). We see no

reason to disturb the trial judge's decision.

V.

We now turn to defendant's arguments regarding sentencing.

Defendant contends the trial judge erred by inconsistently

interpreting the mitigating and aggravating factors. He argues

the judge considered the risk of future offense to be an

aggravating factor, yet also found that defendant was unlikely

to commit another offense. Defendant also contends his advanced

age (he states he was over sixty years old when initially

incarcerated), and his numerous medical conditions, including

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bipolar disorder, anxiety, stress, and obsessive/compulsive

disorder, should have been more heavily weighed as mitigating

factors. We disagree. The sentencing judge properly weighed

the mitigating and aggravating factors, and reached a reasonable

sentence supported by the facts of the case.

Our "review of a sentence is generally guided by the abuse

of discretion standard." State v. Robinson, 217 N.J. 594, 603

(2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984). We

are not permitted to substitute our own judgment for that of the

sentencing court. See State v. Case, 220 N.J. 49, 65 (2014).

We must affirm the sentence imposed by a sentencing court,

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."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65).]

At sentencing, the judge explicitly weighed the mitigating

and aggravating factors under N.J.S.A. 2C:44-1. The judge found

that defendant's continuing course of conduct increased the risk

of a future offense (factor three). The judge also found the

seriousness and extent of defendant's criminal record (factor

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six), and the pecuniary incentive for the crime (factor seven)

to be aggravating factors.

The judge found that the offenses were mitigated by

defendant's drug and mental health issues (factor four), and

that these rendered defendant less likely to commit future

crimes (factor nine), and defendant's imprisonment an excessive

hardship (factor eleven). The judge concluded the aggravating

factors were predominant.

We conclude the trial judge's findings and the resultant

balancing of the aggravating and mitigating factors are

supported by adequate competent and credible evidence in the

record, and the sentence is neither inconsistent with sentencing

provisions of the Code of Criminal Justice nor shocking to the

judicial conscience. See Fuentes, supra, 217 N.J. at 70.

Furthermore, the court's findings of aggravating factor

three and mitigating factor nine are not inconsistent. The

court's conclusion under aggravating factor three was informed

by defendant's history of crime which suggested a likelihood of

future crime. However, the court's finding under mitigating

factor nine was informed by testimony and character letters

submitted by friends of defendant. The two factors are based on

different criteria and are not logically exclusive of each

other.

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VI.

Finally, we turn to the State's argument, made for the

first time on appeal, that the sentencing judge incorrectly

applied a 699 day gap-time credit and 372 days of jail credit to

defendant's sentence. Having reviewed the sentence in light of

applicable law, we agree.

"[T]here is no room for discretion in either granting or

denying credits." State v. Hernandez, 208 N.J. 24, 48-49

(2011). Rather, the application or denial of sentencing credits

is a legal issue, reviewed de novo. State v. DiAngelo, 434 N.J.

Super. 443, 451 (App. Div. 2014).

With respect to the 699 day gap-time credit, N.J.S.A.

2C:44-5(B) prohibits gap-time credits for time spent in custody

prior to sentencing if the subsequent offense was committed

while in custody. State v. Franklin, 175 N.J. 456, 471 (2003).

There is no dispute that the offenses in this case were

committed while defendant was in custody. Therefore, the 699

day gap-time credit is improper.

Likewise, with respect to the 1003 day jail credit, Rule

3:21-8 states that a "defendant shall receive credit on the term

of a custodial sentence for any time served in custody in jail

or in a state hospital between arrest and the imposition of

sentence." However, a defendant is not entitled to credit for

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time served for a separate offense before the relevant arrest or

statement of charges has been made. DiAngelo, supra, 434 N.J.

Super. at 462.

In this case, with respect to count two, defendant was

entitled to 631 days of jail credit, for the period starting

October 23, 2008, because that was the date defendant was first

charged on that count. However, with respect to count three,

defendant was not charged with that offense until August 4,

2009. Indeed, the facts underlying count three did not even

occur until late 2008 or early 2009. It was therefore improper

for the sentencing judge to allot defendant an additional 372

day jail credit based on an October 23, 2008 starting date.