STATE OF NEW JERSEY v. PHILIP CASTAGNA PHILLIP CASTAONA

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. PHILIP J. CASTAGNA, a/k/a PHILLIP J. CASTAONA Defendant–Appellant.

DOCKET NO. A–3392–10T2

Decided: July 18, 2013

Before Judges Fisher, Waugh, and Leone. Bruce G. Cassidy argued the cause for appellant (Bruce G. Cassidy & Associates, attorneys;  Mr. Cassidy and Michael W. Landis, of counsel and on the brief). Alexis R. Agre, Assistant Prosecutor, argued the case for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney;  Ms. Agre, of counsel and on the brief).

Defendant Philip J. Castagna appeals from his convictions for conspiracy to murder his wife Joyce and contempt for violating a domestic violence restraining order.   He raises numerous challenges to his convictions and sentence.   We affirm his convictions, but remand for resentencing.

I.

The State's evidence can be summarized as follows.   Defendant was the Chief of Police of Bordentown City. He also bought and sold used cars.   At a body shop in early 2002, he met his co-conspirator, Gary Hall. By 2003 they became friends, visiting and telephoning frequently.   In February 2003, defendant invited Hall to attend the Burlington County Chiefs of Police Installation Dinner, and “set up” Hall by arranging for him to escort Joyce's friend Joan, who subsequently dated Hall.

Defendant also helped Hall with his criminal problems.   Defendant told Joyce he thought Hall was being railroaded by the Burlington City Police Department.   Defendant paid Hall's fines for a theft, and introduced Hall to a lawyer to represent him on an aggravated assault charge.   Defendant also helped Hall find a location to open his own body shop where he could repair defendant's used cars.   Defendant introduced Hall as his cousin when trying to rent the location, helped Hall with the fire inspector and insurance agent, and loaned Hall money to get started.

Defendant visited Hall's shop almost every day.   During these visits, defendant talked about his relationship with Joyce, which had become tumultuous.

After defendant had “a domestic” dispute with his wife on June 8, 2003, he left the marital home, drove to Hall's shop, and said he and Joyce had separated.   Defendant told Hall that he would lose his gun, job, and pension if Joyce pursued the matter with the police, because Burlington County had “zero tolerance” for domestic violence.   Defendant said that Joyce “would end up in the trunk of a car” if she “kept f*cking with his pension.”

On June 15, Joyce obtained a temporary restraining order (TRO) against defendant.   The TRO prohibited any contact, and forbade defendant from possessing any weapons.   Defendant told Hall that, as a result, police had seized his guns and his job and pension were in jeopardy.

After the TRO, defendant and Hall would get information from Joan about Joyce's activities.   Joan revealed this to Joyce.   Hall warned Joan that by talking to Joyce she would ruin defendant.   Hall said Joan had to stop, and she agreed.   Later, defendant played Hall a phone message which showed that Joan was still talking to Joyce.   Hall then threatened to break Joan's neck.   Hall was arrested for threatening Joan.

On July 1, 2003, defendant went to see Joyce's uncle, Santo Celia.   Defendant, very upset, told Celia that Joyce got him arrested and obtained a TRO. Defendant begged for Celia's help with Joyce “[b]ecause if she keeps f*cking ․ with my pension and my career you're going to see me on the front page of the Trentonian,” a local newspaper.   Defendant said “they've taken my guns, they've taken my weapon but I can get another.”   Celia and his wife told Joyce about defendant's discussion with Celia.   On July 11, Joyce filed a complaint with the police that defendant had violated the TRO. Charges were filed against defendant.

With both of their relationships over, defendant and Hall talked almost every day, and met in bars and strip clubs.   They angrily discussed what “those b*tches” had done to them.   They blamed Joan for causing Hall to lose his shop (because Hall had made her the license-holder for the shop because he was a felon who could not hold a license).   Defendant blamed Joyce for his situation, and told Hall that he was going to slice Joyce up in pieces and “cut her p*ssy out.”

In October 2003, Hall pled guilty to terroristic threats against Joan. At Hall's March 4, 2004 sentencing, defendant spoke on Hall's behalf, and Joyce attended the sentencing to support Joan. Defendant told the court that Hall was a “good guy” who “has had a hard life.”   Defendant then launched into a diatribe to the court against Joyce, calling her a “f*cking b*tch,” saying that she was the one who should be sentenced, and that this was a conspiracy against him.   Defendant and Hall began taunting and threatening the women until a sheriff's officer intervened.   Defendant was charged with threatening Joyce.

At defendant's May 2004 trial for his alleged July 2003 TRO violation, defendant was found guilty of harassment and contempt.   The trial court sentenced defendant to probation for one year, declared that his position as chief of police was forfeited, barred him from future public employment, imposed $1,000 in fines, and continued the restraints.

While Hall was incarcerated, defendant called, wrote, and visited Hall, sent Hall money, and told Hall of his conviction and sentencing.   After Hall was released from custody in June 2004, defendant angrily complained that he had lost his job and pension because of Joyce almost every time he got together with Hall.

The situation escalated in August 2004, when a judgment of divorce between Joyce and defendant was issued.   At one of his meetings with Hall in August, defendant showed a .38 caliber revolver to Hall.

Later in August, defendant invited Hall to the beach.   There, defendant told Hall that he was going to kill Joyce.   Defendant said, “that b*tch ruined my life, you know, she ruined your life too, it's all her fault.”   Defendant blamed Joyce for causing the loss of his home, his money, his pension, and Hall's shop.   Defendant proposed that he would kill Joan if Hall killed Joyce.   Defendant said he could kill Joyce in a drive-by shooting on a motorcycle, and wanted to get speed-loaders for his revolver.   Alternatively, defendant proposed he and Hall kidnap Joyce using a van, torture her by “cutting her p*ssy out,” and kill her.   Finally, defendant suggested that Hall kill Joyce himself, and discussed how Hall could evade the parking-lot cameras at her work.

Believing defendant was serious about killing Joyce, and fearing defendant was setting him up, Hall called the Burlington County Prosecutor's Office on August 25, 2004.   Detective Ed Zubrzycki interviewed Hall, who told him what defendant had said at the beach.   Hall agreed to cooperate in the investigation in return for immunity regarding anything revealed in the investigation.

On August 30, the detective monitored a recorded conversation between Hall and defendant that confirmed their relationship, as well as defendant's hatred of Joyce and his desire for retaliation.   Officials from the prosecutor's office then provided Hall with consensual intercept equipment to record future conversations.1

On September 23, officials had Hall invite defendant to meet in a motel room in which they had installed microphones and a video camera.   The officials lent Hall an inoperable semi-automatic pistol.   When defendant entered the room, Hall said “look what I got,” took the pistol out of a drawer, and said he would use it to kill “those b*tches.”   Hall proclaimed that the women were “dead” and “I'm going to kill them both.”   Hall said “we talked about it at the beach,” and “we talked about killing Joyce and Joanie together but I have changed my mind and will do it alone.”   Hall said he had plenty of ammunition in the trunk of his car and would kill Joan first and then “the main culprit,” Joyce.   Defendant told Hall where Joyce worked, gave Hall directions off the Interstate, and revealed that Joyce drove a gold Sebring car.   Hall wrote the information down on a card.

In a telephone conversation on September 24, Hall asked whether defendant wanted Hall to break Joyce's legs or put a bullet in her head.   Defendant replied, “you know what to do, just do it right.”   Defendant said Hall would be a hero after killing “that b*tch.”   They again discussed how to evade being caught on camera.   Hall attempted to record this conversation but the equipment malfunctioned.

On October 1, in a recorded conversation, Hall asked defendant if he still wanted Hall to kill Joyce, because Hall was “at that point.”   Defendant replied that she was a “f*cking b*tch” and a “piece of sh*t,” and that “you know what you should do.”   Defendant asked, “Do you want your orders?” and Hall replied, “I want my orders.”   Defendant responded, “Carry out, accomplish the mission.”   Hall said he would, and defendant replied, “yeah, well, why don't you do your job?”   Hall testified that he and defendant, who had both been in the Army, used army lingo and code phrases such as “Code Alpha” and “Alpha Bravo” to describe killing Joyce.

The next day, in a recorded conversation, Hall told defendant that he would go on “a mission real soon.”   Hall said, “it's f*ckin' Alpha Bravo,” and defendant replied “ok.”   Hall said that Joyce and Joan “ruined my life and yours and there is no reason they are going to get away with it,” and defendant responded, “take care of it.”

On October 4, in a recorded conversation monitored by detectives, Hall told defendant, “It's code alpha, brother.   Do you want me to do it?”   Defendant answered “yep.”   Hall said Joyce would not make it through the weekend and defendant should get his alibi ready.

On October 7, in a recorded call monitored by detectives, Hall told defendant, “I'm taking care of that tonight, man.   Joyce is my problem now.”   Defendant agreed.   Hall said “let me handle that,” and defendant replied, “please do.”   Hall told defendant that after the killing he would drive to Florida via the “South of the Border” rest stop.

The next day, in a recorded conversation monitored by officers, Hall called defendant, saying he had just stopped at the rest stop.   Hall stated that Joyce was “gone,” “done,” and “rotting in the trunk of her car right now.”   Hall identified the truck stop where the defendant could find Joyce's car with the body in it if he wanted to take a look.   Defendant hung up and then called back three minutes later, saying that he had called from another phone so no one could overhear him.   Hall repeated that Joyce was “done,” that he “put five bullets in her and blew her f*cking head right off.”   Hall again told defendant where he could find the body.

That night, in a recorded conversation, defendant called Hall. In the presence of a detective, Hall repeated that he “blew her f*cking head right off,” and that her body was at the truck stop.   Hall said that defendant better keep his mouth shut.   Defendant agreed.

Later that night, police arrested defendant for conspiracy to commit murder.   Defendant responded, “conspiracy, another chapter in my life.”   When asked what happened to Joyce, defendant replied, “I have no idea what may have happened to Joyce.”

II.

On May 10, 2005, a grand jury indicted defendant for first-degree conspiracy between August 12 and October 8, 2004, to commit first-degree murder, N.J.S.A. 2C:5–2a(1), and fourth-degree contempt in violation of a domestic violence restraining order during that period, N.J.S.A. 2C:29–9b.   It also indicted him for second-degree aggravated arson, N.J.S.A. 2C:17–1a(2), and fourth-degree contempt in violation of a domestic restraining violence order, N.J.S.A. 2C:29–9b, based on a fire set at Joyce's house on July 4–5, 2003.

On August 21, 2006, we reversed defendant's May 2004 conviction for harassment and contempt, finding insufficient evidence that he intended Celia to communicate a harassing message to Joyce.  State v. Castagna, 387 N.J.Super.   598 (App.Div.) (Castagna I ), certif. denied, 188 N.J. 577 (2006).

On February 8, 2007, the State's motion in limine seeking to admit evidence was denied.   The State appealed.   On May 12, 2008, we affirmed exclusion of evidence of the FRO and the acts of domestic violence that led to it, but held admissible evidence of the TRO, defendant's conversation with Celia, the criminal charges filed by Joyce, and defendant's 2004 conviction and sentence.  State v. Castagna, 400 N.J.Super.   164 (App.Div.2008) (Castagna II ).

The first trial commenced on February 18, 2009.   On March 19, the jury acquitted defendant of aggravated arson and the related contempt.   The jury could not agree on the charge of conspiracy to commit murder and the related charge of contempt, and a mistrial was declared.

The second trial commenced on October 5, 2010, before another judge (the trial judge).   The jury convicted defendant on the charges of conspiracy to commit murder and the related contempt.

On the conspiracy offense, the judge sentenced defendant to seventeen years in prison, required him to serve 85% of that sentence prior to parole eligibility, and imposed a mandatory five-year period of parole supervision.   The judge sentenced him to a concurrent fifteen months in prison on the contempt offense.

Defendant filed this appeal, raising the arguments:

A. Defendant's Multiple Requests to Dismiss the Indictment Should Have Been Granted Because The Prosecutor's Presentation Of This Matter Before The Grand Jury Was Based On Egregious Prosecutorial Misconduct To Improperly Influence The Grand Jury's Decision to Indict Defendant.

B. The Trial Court Committed Reversible Error When It Denied Defendant's Motion For Change Of Venue From Burlington County Since Pre–Trial Publicity During Both Trials Prevented The Empaneling Of An Impartial Jury In Burlington County.

C. The Trial Court Committed Reversible Error When It Denied Defendant's Motion For The Court To Order A Psychological Evaluation Of Gary Hall To Determine If He Was Competent And Whether He Understood The Obligation Of A Witness To Tell The Truth Under Oath.

1. Gary Hall's Mental Instability and Failed Participation In the Witness Relocation Program.

2. Trial Court's Acknowledgement of Gary Hall's Mental Instability.

3. Gary Hall Motion Hearing – Testimony on October 5, 2010.

4. Gary Hall Trial Testimony – October, 2010

D. The Trial Court Erred When It Denied Defendant's Motion For A Directed Verdict.

E. Defendant's Conviction Must Be Overturned For The State's Violation Of Defendant's Right To Discovery and Right To A Speedy And Fair Trial.

1. Failure To Produce State's Witness, Gary Hall's, Psychological Records.

2. The State Failed To Produce The Gun Provided To Gary Hall.

3. State's Video Of The September 23, 2004 Set–Up.

4. State's Failure To Produce Discovery And The Trial Court's Error In Not Sanctioning The State Accordingly.

F. Defendant's Conviction Must Be Overturned For The State's Violation Of Defendant's Constitutional Right To A Speedy Trial.

G. The Trial Court Committed Reversible Error When It Denied Defendant's Motion For A Mistrial Based On Improper Argument Made By The State In Its Closing Argument.

H. The Trial Court Committed Reversible Error When It Denied Defendant's Motion To Dismiss The Indictment Because The Defendant Would Be Subject To Double Jeopardy And When It Erred By Not Severing The Charges Against Defendant.

1. The Trial Court Should Have Severed The Conspiracy And Contempt Indictments.

I. The Trial Court Erred When It Sentenced Defendant Under The No Early Release Act And When It Improperly Applied Aggravating Factors.

J. The Trial Court Erred When It Denied Defendant's Motion To Dismiss On Due Process Entrapment Grounds Because The State Utilized Gary Hall As Its Agent To Create The Crime And To Direct The Commission Of The Crime Involving Defendant As Its Target.

III.

Defendant first argues that the trial judge erred in denying his motion to dismiss the indictment.  “Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground.”  State v. Hogan, 144 N.J. 216, 228 (1996) (citations and internal quotation marks omitted).   “Moreover, the decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused.”  Id. at 229 (citations omitted).

Defendant complains that the prosecution did not provide the grand jury with information defendant believes was exculpatory.   Because the grand jury is “an accusatory and not an adjudicative body,” normally “the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime.”  Id. at 235–36.   Hogan, however, imposed “a limited duty” on prosecutors to disclose exculpatory evidence to the grand jury, “a duty that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory.”  Id. at 237.   Evidence directly negates guilt only if it “squarely refutes an element of the crime in question.”  Ibid.;  see, e.g., State v. Womack, 145 N.J. 576, 588–89 (evidence that the defendant disclosed he was not a medical doctor refuted the charge that he held himself out as a medical doctor), cert. denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L. Ed.2d 405 (1996).

Defendant argues that the prosecution should have told the grand jury that Hall had been expelled from the Attorney General's Witness Relocation Program (program) in 2005.   The trial judge ruled Hall's expulsion was not “exculpatory in any way.”   We agree the expulsion does not directly negate any element of the charges that defendant conspired with Hall in 2004, and thus did not trigger the limited duty imposed in Hogan.

Defendant notes that a prosecution witness told the grand jury Hall was referred to and “accepted into that program.”   The prosecution elicited that evidence, however, in listing the benefits that Hall had received as a cooperating witness.   It thus did “not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a ‘half-truth.’ ”   See Hogan, supra, 144 N.J. at 236.   Regardless, as set forth above, Hall's expulsion did not meet the standard adopted in Hogan for disclosure to the grand jury.  Id. at 236–37;  see Womack, supra, 145 N.J. at 588;  State v. Scherzer, 301 N.J.Super. 363, 427 (App.Div.), certif. denied, 151 N.J. 466 (1997).

Hall's expulsion from the program, like Hall's mental, drug, and legal problems, may go to his credibility.   However, “[c]redibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury.”  Hogan, supra, 144 N.J. at 235.   Accordingly, evidence that merely impeaches the credibility of prosecution witnesses, such as their criminal records, need not be disclosed to the grand jury.  Id. at 237.   Indeed, Hogan ruled that the recantation of the prosecution's principal witness did not have to be disclosed to the grand jury.  Id. at 239–40.   “Determining the impact of [that evidence] on the State's case against defendant was a responsibility properly reserved for the petit jurors, who heard all the evidence and found defendant guilty beyond a reasonable doubt of ․ the charged offenses.”  Id. at 240.   For all these reasons, we reject defendant's challenges to the denial of his motion to dismiss the indictment.

IV.

Defendant next claims that the trial judge erred in denying his motion to change venue from Burlington County based on pretrial publicity.  “ ‘[T]he trial court's resolution of such questions is entitled, even on direct appeal, to special deference.’ ”  State v. Koedatich, 112 N.J. 225, 274 (1988) (quoting Patton v. Yount, 467 U.S. 1025, 1038–39, 104 S.Ct. 2885, 2892, 81 L. Ed.2d 847, 858 (1984)), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d 803 (1989).   The trial judge did not abuse her discretion.   See id. at 274–75.

There were approximately seventy-one newspaper articles about the case in 2003–06, but there was a lull in 2007–08, during which there were about twelve articles.   Although the first trial in 2009 elicited about fifty-six articles, “the passage of time between a first and a second trial can be a highly relevant fact” that often “rebuts any presumption of partiality or prejudice that existed at the time of the initial trial.”  Patton, supra, 467 U.S. at 1035, 104 S.Ct. at 2891, 81 L. Ed.2d at 856.   In the year and a half between the end of the first trial in March 2009 and the commencement of the second trial in October 2010, there were only four articles.   See id. at 1032, 104 S.Ct. at 2889, 81 L. Ed.2d at 854 (finding no prejudice where newspapers “published an average of less than one article per month” in the year and a half prior to the second trial).   The coverage, moreover, was overwhelmingly factual.   Thus, as the trial judge found, “the passage of time and the factual nature of the media coverage of defendant's [first] trial dissipates any concern that prejudice existed.”  State v. Nelson, 173 N.J. 417, 477 (2002).

Accordingly, this was not one of those “relatively rare” and “extreme” cases where “prejudice may be presumed” because of “a barrage of inflammatory reporting” or a “torrent of publicity that creates a carnival-like setting.”   Id. at 475 (citations and internal quotations omitted).   Therefore, the trial judge properly decided to conduct voir dire and “evaluate whether under the totality of circumstances ‘the jury process resulted in a fair and impartial jury.’ ”  Id. at 476 (quoting Koedatich, supra, 112 N.J. at 274).

Here, of the sixty-five jurors questioned, only ten had any prior knowledge of the case, and all ten were excused.   See id. at 478.   None of the seated jurors had ever read an article about the case.   This was not a situation where “a fair and impartial trial cannot otherwise be had.”  R. 3:14–2.

V.

Defendant contends that the trial judge erred in denying his motion to compel a mental examination of Hall regarding his competency to testify.   Under New Jersey law, “every person is presumed competent to testify.”  State v. Krivacska, 341 N.J.Super. 1, 36 (App.Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L. Ed.2d 510 (2002).  N.J.R.E. 601 provides:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

“The determination of whether a person is competent to be a witness lies within the sound discretion of the trial judge,” State v. Savage, 120 N.J. 594, 632 (1990), that “will not be disturbed unless it plainly lacks support on the record,” State v. Walker, 325 N.J.Super. 35, 41 (App.Div.1999), certif. denied, 163 N.J. 74 (2000).

Here, Hall testified at a pre-trial competency hearing.   After observing Hall's testimony, the trial judge agreed that “[c]learly Mr. Hall understands why he's here,” and that he articulated “the difference between the truth and a lie.”   The judge found that Hall “was able to articulate in a perfectly normal fashion,” “seemed oriented completely to time and place,” and “made appropriate eye contact.”   The judge further found that “[h]is responses were appropriate, might be somewhat loquacious but nothing that would indicate an inability to perceive, remember or relate.”   The judge found Hall competent to testify, and indeed ruled that Hall “doesn't even come close ․ to meeting the standard required under the rule for [the judge] to bar his testimony.”   The judge's first-hand observations find ample support in the record of the pre-trial hearing, and indeed the trial.

The trial judge properly ordered the pre-trial competency hearing in response to defendant's motion for a mental evaluation.  “Inherent in the trial court's discretion to qualify a witness as competent is the power to have the individual submit to psychiatric or psychological evaluation for the purpose of aiding the court's determination.”  State v. R.W., 104 N.J. 14, 21 (1986).   The Supreme Court, however, has “emphasized that ‘the exercise of this power ․ is neither frequent nor common, and never lightly undertaken.’ ”   State v. Long, 119 N.J. 439, 497 (1990) (quoting R.W., supra, 104 N.J. at 21).  “The grant of such an evaluation demands ‘a substantial showing of need and justification’ by the party seeking the evaluation.”  Ibid. (quoting R.W., supra, 104 N.J. at 21 (citation omitted)).  “ ‘[T]here must be a showing of some deviation from acceptable norms, such as an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal.’ ”  Ibid. (quoting R.W., supra, 104 N.J. at 22).

“ ‘[A]bsent persuasive evidence of potential incompetence, mere allegations of a disorder or unusual condition bearing upon competence do not constitute a sufficient showing to justify a psychiatric examination.’ ”  Id. at 498 (quoting R.W., supra, 104 N.J. at 25).   Thus, in Long, the Supreme Court affirmed the denial of a psychiatric evaluation of the State's principal witness, who admittedly suffered from auditory hallucinations after the crime, drank excessively, and repeatedly gave conflicting statements, and who the defense claimed was incomprehensible, had psychiatric problems, and was mentally disturbed.  Id. at 453, 496–98.

Here, defendant notes Hall was terminated from the witness relocation program because he engaged in conduct in violation of the law and of the terms of his agreement with the State.   Those violations, while impermissible, are not themselves mental disorders requiring a mental evaluation.

Defendant's motion also cited transcripts from the first trial indicating that Hall had knowledge of the Oklahoma City bombing and other prominent criminal cases.   At his competency hearing and at trial, Hall explained he had been told something (i.e., the Oklahoma City bombing) would happen on the anniversary of the Waco siege, by a possible acquaintance of bombing perpetrator Timothy McVeigh;  had heard about the whereabouts of Jimmy Hoffa's body from the niece of his successor as Teamsters Union head;  had been shown documents relating to the Lindbergh kidnapping by a New Jersey state trooper;  and had been told about the fate of a Black Panther fugitive by another state trooper.   While these statements allege an unusual amount of information on high-profile cases, they attribute that information to normal communication with human sources.   Similarly, Hall's testimony that a state trooper asked him to hide records, or that a cook at his relocation site offered him drugs, reflect illegal but not inherently inconceivable activity.

At the competency hearing, Hall testified that he was diagnosed with depression and sought psychiatric care after his brother committed suicide in 1986, but had not been under psychiatric care recently.   Even current receipt of psychiatric care is not itself sufficient to require a mental examination.   See Long, supra, 119 N.J. at 496;  Walker, supra, 325 N.J.Super. at 41.

Hall testified that he was taking anti-anxiety medication since going into the witness relocation program, and that he obtained medication from a prison psychiatrist to help him sleep.   The judge was “not troubled by the fact that he's on anti-anxiety medication,” finding that “nothing in the way he responded to the questioning would lead this Court to believe that the medication or the underlying anxiety has any impact on his ability to articulate, communicate and certainly testify.”

Hall also testified that he had been examined and released under Florida's Baker Act, Fla. Stat. §§ 394.451–394.475. Under that Act, “[a] person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness․”  Fla. Stat. § 394.463(1), (2)(a)(2).   A person thus examined must be released within seventy-two hours unless they have a mental illness or have been charged with a crime.  Fla. Stat. §§ 394.463(2)(g), 394.4655(1)(b), 394.467(1)(a).   According to documents submitted by defendant, after Hall became anxious and despondent because he was in the witness relocation program in Florida far from his family, he was admitted for examination overnight to a medical center and then released.   A week later, after an argument with his girlfriend, Hall took pills and said he was trying to commit suicide.   He was hospitalized overnight, transferred to a crisis screening center, and released within three days.   Given the absence of evidence that Florida authorities found that Hall was mentally ill, these incidents do not demonstrate an “identifiable or clinical psychiatric or similar disorder.”  Long, supra, 119 N.J. at 497.

Defendant cites extensive documents from the State Police Witness Relocation Unit.2 They relate the facts above, and that Hall asked for help to cope with investigations into his past criminal activity because “sometimes he just goes out of his mind because of his past,” but was seeing a doctor for his condition and was calm.   This appears to be merely another reference to his admitted anxiety.

The documents relate that Hall later stated “he is hearing voices in his head,” such as the voices of two troopers.  “Although auditory hallucinations may be beyond the realm of normalcy,” to necessitate a mental examination there must be “real evidence indicating how [the witness's] alleged disorder would affect the witness's competence or the court's ability to assess that competence.”  Long, supra, 119 N.J. at 497.   Defendant offered no such evidence.

The documents also show that the troopers on the witness relocation team ultimately reported that Hall was “extremely mentally unstable,” had “serious mental issues and would not be a reliable witness to testify.”   The troopers' conclusion was not binding on the trial judge, who reached her own conclusion after observing Hall.

The documents further state that Hall made false accusations against the troopers.   They relate Hall's statements that “he lies to assume different identities,” such as pretending to be a killer, that “he is an actor and knows how to lie,” and that “he makes up stories and people are dumb enough to believe him.”   The documents contain Hall's text message to a trooper stating:  “I like living a lie.   I can be whoever I want.   Acting is fun.   I'll never tell another c*nt the truth.”   A showing that a witness may choose to lie is not a showing of mental disorder.   While mental disorders may require an expert's examination,

“[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.   For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury.”  State v. Vandeweaghe, 177 N.J. 229, 239 DP1⌑Defendant's claims that Hall lied in his trial testimony are similarly misdirected.   Even an accurate claim that a witness “apparently fabricated rather freely in portions of his trial testimony” provides “no sound basis to disturb the trial judge's decision” that a witness was competent.  Krivacska, supra, 341 N.J.Super. at 37.   Such fabrication “was a matter for the jury's consideration.”  Ibid. In any event, defendant did not renew his motion for a mental examination during or after the trial testimony.   See Long, supra, 119 N.J. at 498 (claim can be waived).

None of defendant's allegations convince us that the trial judge erred in finding that defendant had not shown “ ‘an identifiable or clinical psychiatric or similar disorder, beyond the realm of those human conditions that ordinary experience would confirm as normal,’ ” id. at 497 (quoting R.W., supra, 104 N.J. at 22), or “ ‘persuasive evidence of potential incompetence,’ ” id. at 498 (quoting R.W., supra, 104 N.J. at 25).   Defendant simply did not make “ ‘a substantial showing of need and justification,’ ” ibid. (quoting R.W., supra, 104 N.J. at 21 (citation omitted)), sufficient to require the judge to resort to this “extraordinary measure,” R.W., supra, 104 N.J. at 22.3

Further, the issue here is whether the trial judge abused her discretion in relying on her firsthand observation rather than a mental examination to determine whether Hall met the standard for competence.  “A potential witness may meet this standard even if not entirely of sound mind so long as the witness has ‘sufficient capacity to observe, recollect and communicate with respect to the matters about which [the person is] called to testify.’ ”   Walker, supra, 325 N.J.Super. at 40 (quoting Butler, supra, 27 N.J. at 602).

The trial judge was well aware that Hall “violated a lot of the conditions of the program,” “that he was drinking heavily and that he was taking some type of medication.”   The judge also knew that “there was a belief on the part of the state police at least that he was mentally unstable” and “had such mental health issues that he was not going to be an adequate witness,” and that “perhaps there was some interaction with the psychiatric community” including under the Baker Act. Acknowledging the “mental health concerns,” the judge stated that she would consider them when she had “the opportunity to observe Mr. Hall in person to make my own determination as to whether or not I believe he is competent to testify based on the standards” in Rule 601.   See Long, supra, 119 N.J. at 496.   After observing Hall testify at the competency hearing, she found him competent without the need for a mental examination.   Given “[t]he broad reliance on the discretion of the trial court,” R.W., supra, 104 N.J. at 20, we cannot say the judge abused her discretion.

VI.

Defendant asserts the trial judge should have granted his motion for a directed verdict.   A court may only enter a judgment of acquittal “if the evidence is insufficient to warrant a conviction.”  R. 3:18–1.   We must determine “whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.”  State v. Reyes, 50 N.J. 454, 459 (1967).

Contrary to defendant's arguments, there was ample evidence showing an agreement to murder Joyce.   She was targeted by name, “Joyce,” as well as by code words and epithets which the evidence showed referred to her.   Defendant also gave Hall directions to her work and identified her car so Hall could find and kill her.   That evidence was not diminished by Hall's alleged knowledge of where she worked, his discussion of killing Joan too, his motives to cooperate, or his subsequent behavior in the witness relocation program.   A reasonable juror could have found guilt beyond a reasonable doubt.   See State v. Samuels, 189 N.J. 236, 245–46, 249 (2007).

VII.

Defendant alleges that the State violated his right to discovery.   See R. 3:13–3.   In fact, the State provided voluminous discovery to his original counsel before the first trial.   After that trial, defendant's second counsel tried for three months to get that discovery from his first counsel.   The trial judge and the parties then agreed that the State would recopy and resupply that discovery.   The prosecutor turned over a portion of that discovery but argued that the remainder was precluded or irrelevant to the second trial, which concerned fewer counts.   The judge granted defendant's motion to compel, however, and the remainder was produced.   Before the second trial, defendant's third counsel reviewed the prosecutor's files, and acknowledged he had “all of the documents that the prosecutor has.”   The judge ruled that discovery had been adequately addressed in earlier rulings and that “we're at the place we need to be for trial.”

Defendant nonetheless claims his convictions must be reversed because of the prosecution's initial failure to recopy the prior discovery in full, and the trial judge's choice not to impose sanctions.   We in no way condone the prosecution's belatedly-disclosed decision not to recopy all the prior discovery, or the delay it caused.   However, the full prior discovery was provided before trial, and defendant does not “explain how he was prejudiced by not receiving this discovery earlier.”  State v. Carroll, 256 N.J.Super. 575, 599 (App.Div.), certif. denied, 130 N.J. 18 (1992).   Furthermore, trial courts have “broad discretion to determine the appropriate sanctions to be imposed for discovery-rule violations.”  State v. Marshall, 123 N.J. 1, 130 (1991).   Here, “where the State's discovery-rule violation caused no apparent prejudice to defendant,” the sanction defendant now requests — the grant of a new trial — is “manifestly inappropriate.”   See id. at 134.

Second, defendant complains that the State did not produce records of Hall's psychological examinations in Florida.   We assume that the Florida medical institutions which examined Hall have such records.   It was agreed in the trial court, however, that such records were never in the possession of the Burlington County authorities, the New Jersey Attorney General's Office, or the New Jersey State Police.   That is fatal to defendant's claim.

Our rules require the revelation of items, including reports of mental examinations, “which are in the possession, custody, or control of the prosecutor.”  R. 3:13–3(b), (c)(3).   Similarly, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963), requires a defendant to show that favorable, material information was “suppressed by the prosecution,” which in turn “depends on whether the prosecution actually or constructively possessed that evidence.”  State v. Nelson, 155 N.J. 487, 497–98 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L. Ed.2d 788 (1999).   The prosecution may be found in constructive possession of evidence in the possession of “others acting on the government's behalf in the case, including the police.”  Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L. Ed.2d 490, 508 (1995);  State v. Jones, 308 N.J.Super. 15, 42 (App.Div.1998).   Here, no one claims the Florida medical institutions were acting on behalf of this New Jersey criminal prosecution.   Thus, the State was not in actual or constructive possession, custody, or control of any such Florida records.4  Accordingly, there was no violation of R. 3:13–3 or Brady.5

Third, defendant faults the State for not producing the pistol Hall showed defendant in the motel room.   The pistol, a training weapon from the academy, was recovered from the motel room, photographed, and returned for use at the academy, which later closed.   The photographs were produced in discovery and authenticated and used at trial.   Given the limited role of the pistol in the case, we find no prejudice to defendant from the production of the photographs rather than the pistol.   See Marshall III, supra, 148 N.J. at 195, 200.   Defendant offers no reason that the pistol was evidence favorable to the accused, let alone material.   See id. at 154.

Fourth, defendant alleges the September 23 videotape was edited to remove the initial frames, which would show Hall pointing the pistol at defendant, causing defendant to gasp.   Defendant has provided no basis for any of these allegations, however.6  According to the testimony, the videotape shows Hall taking the inoperable pistol from a drawer, and showing it to defendant.   The separate audiotape records Hall stating, “I have something I want to show you” and proclaiming that the pistol would be used to kill Joyce and Joan, a topic defendant stayed to discuss at length.   In any event, Detective Zubrzycki, the case agent, testified that the video equipment — which the State had set up and operated, and from which it had collected the tapes, without any involvement by Hall — had functioned properly and the tape had not been altered.   Because “[t]he State denies that such [initial portion of the video] exists, and defendant has made no showing to contradict that representation,” defendant's “claim also must be denied.”   See Marshall III, supra, 148 N.J. at 195;  see also State v. Morton, 155 N.J. 383, 413–14 (1998) (“defendant must provide more than mere unfounded allegations of tampering” to justify discovery), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L. Ed.2d 306 (2001).

We find the claimed discovery errors were not “of such a nature as to have been clearly capable of producing an unjust result.”  R. 2:10–2;  see Koedatich, supra, 112 N.J. at 319.

VIII.

Defendant argues that the State violated his right to a speedy trial.  “[T]he four-factor balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial in all criminal and quasi-criminal matters.”  State v. Cahill, 213 N.J. 253, 258 (2013).  Barker “identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial:  length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant.”  Id. at 264.   “ ‘[A]ny delay that defendant caused or requested would not weigh in favor of finding a speedy trial violation,’ ” including delays “attributable to defendant's motions and adjournments” and the delay caused by “the substitution of defense counsel.”  Long, supra, 119 N.J. at 470–71 (citations omitted).

Defendant notes that he was indicted on May 10, 2005, and that his first trial commenced on February 18, 2009.   He filed numerous motions in 2005 and 2006, however.   Moreover, trial was stayed by the State's interlocutory appeal of the first trial judge's February 8, 2007 order, which appeal was resolved largely in the State's favor on May 12, 2008.   See Castagna II, supra, 400 N.J.Super. at 188.  “Given the important public interests in appellate review, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay.”  United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L. Ed.2d 640, 654 (1986);  see State v. Le Furge, 222 N.J.Super. 92, 98–99 (App.Div.), certif. denied, 111 N.J. 568 (1988).   Remand was followed by further defense motions, and apparently another interlocutory appeal.   Defendant does not make any argument, or provide us with any transcripts or other record, regarding any other delays prior to his first trial.

Defendant primarily argues that his second trial did not commence until October 5, 2010 (jury selection commenced September 29), a year and a half after his first trial ended on March 18, 2009.   After the first trial, however, defendant hired a new counsel, who asked to have until September 14 to retrieve defendant's original copy of the discovery from his first counsel.   On September 14, all agreed that the prosecutor would have to recopy the discovery and would need until November.   Furthermore, on July 23, 2010, defendant filed motions to dismiss the indictment, change venue, and compel a psychiatric examination of Hall, which took until trial to resolve fully.

The delay between November 2009 and June 2010 largely resulted from the prosecutor's unfortunate decision not to recopy all the original discovery, and the resulting successful defense motion to compel.   However, “[t]here is no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage.”   See Long, supra, 119 N.J. at 471;  Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L. Ed.2d at 117 (“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.”).

We find this delay of approximately seven months regrettable, but not enough to justify reversal.   Defendant, who never filed a speedy trial motion, does not claim that he asserted the right to a speedy trial between the first and second trials.   See Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L. Ed.2d at 117–18 (“We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”);   State v. Douglas, 322 N.J.Super. 156, 170 (App.Div.), certif. denied, 162 N.J. 197 (1999).   Indeed, when the prosecutor stated in May 2010 that he would soon provide the last of the original discovery, and the judge set a trial date of September 28, defense counsel protested that he needed time to file motions and perhaps conduct additional discovery.

Further, defendant claims prejudice solely from anxiety and concern.   He does not claim that his defense was impaired, “the most serious” form of prejudice, and his only pretrial incarceration was two days in October 2004.   See Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L. Ed.2d at 118.

Given the earlier first trial, the mistrial, the need to recopy discovery, the long delays due to the defense motions and the interlocutory appeals, and other complexities in this conspiracy to murder case, we find no denial of a speedy trial.   See id. at 531, 92 S.Ct. at 2192, 33 L. Ed.2d at 117 (finding no violation despite delay of over five years, and noting that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge”).

IX.

Defendant claims the trial judge should have granted a mistrial due to two arguments made by the prosecutor in summation.  “ ‘[T]o justify reversal, the prosecutor's conduct must have been “clearly and unmistakably improper,” ’ ” and “ ‘so egregious as to deprive defendant of a fair trial.’ ”  State v. Wakefield, 190 N.J. 397, 437–38 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817 (2008).   We must consider “ ‘whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.’ ”  Id. at 438 (citation omitted).

First, defendant cites the prosecutor's argument that “as bad as Gary Hall is, he at least takes responsibility for his actions” at Hall's 2004 sentencing, “[u]nlike this guy [pointing at defendant],” who said “I'm the third victim.”   Defendant claimed this suggested to the jury that defendant should have pleaded guilty.   The prosecutor responded that he was contrasting Hall's conduct with defendant's diatribe at Hall's sentencing.   Defendant agreed that it was sufficient to give cautionary instructions at the end of the prosecutor's closing that “it's not the defendant's responsibility to do anything” and that closing arguments are not controlling.   Accordingly, at the end of the prosecutor's closing, the trial judge instructed the jury:

The burden is on the State, that burden never shifts to the defendant.   So any comment that the defendant has any obligation to do anything in this trial, take responsibility for his actions, there may have been an allusion to that, must be disregarded.   You must understand that the defendant in any trial has no obligation to do or say anything with regard to charges against him so I want to remind you of that.

The judge at the same time instructed the jury that “the statements of the attorneys” in closing arguments “were not evidence” and were not “controlling.”   These instructions were sufficient to remove any prejudice.   See Wakefield, supra, 190 N.J. at 440;  State v. Bogen, 13 N.J. 137, 142, cert. denied, 346 U.S. 825, 74 S.Ct. 44, 98 L. Ed. 350 (1953).

Second, defendant claims that the prosecutor commented on his right to remain silent.   The prosecutor noted that, when a police captain gave defendant his Miranda 7 warnings and asked defendant “what happened to Joyce,” “the best he could muster to the authorities [was] I have no idea what happened to Joyce.”   This comment

“makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.   As to the subject matter of his statements, the defendant has not remained silent at all.”

[State v. Tucker, 190 N.J. 183, 189 (2007) (quoting Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L. Ed.2d 222, 226 (1980)).]

It is less clear whether the prosecutor erred when he pointed out the things defendant could have said about “what happened to Joyce.”   The trial judge viewed the prosecutor's comments “to be less about a comment on self-incrimination or [ ] silence” than about the information defendant knew regarding Joyce's “murder” when defendant said, “I have no idea what happened to Joyce.”   The judge thus distinguished State v. Muhammad, 182 N.J. 551, 562–74 (2005) (prosecutor repeatedly questioned and commented on the defendant's failure to tell police that he arrested the victim as a prostitute and then had sex with her).

In any event, unlike in Muhammad, here the trial judge gave several strong curative instructions.   The judge immediately instructed the jury that “of course the defendant has no obligation to make any statement whatsoever and I'll instruct you again on this at the end.”   At the end of the prosecutor's closing, the judge reiterated to the jurors that a defendant “has no obligation to do or say anything.”   Referencing the prosecutor's argument, the judge instructed that “it is your recollection of the evidence and what the witnesses have actually said that is controlling,” that the prosecutor's closing statements “are not evidence,” and that the prosecutor's belief “is of no moment” and the jury must “disregard” it.   In her final instructions, the judge referenced defendant's “post-arrest statements” and reminded the jury that “[i]t is his constitutional right to remain silent.”   These instructions were sufficient to prevent any prejudice.   See Scherzer, supra, 301 N.J.Super. at 441 (“Even a direct comment on a defendant's failure to testify may be cured by a judge's timely and effective action.”).

Indeed, defense counsel did not request a mistrial until the next day.  “ ‘An appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice.’ ”  State v. Jackson, 211 N.J. 394, 407 (2012) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L. Ed.2d 683 (2000)).   We find no such abuse of discretion.

X.

Defendant next claims that the trial judge erred in denying his motion to dismiss the indictment based on double jeopardy.   He claims that by admitting Celia's testimony, the judge allowed the jury to convict him of contempt based on defendant's conversation with Celia even though we had overturned his 2004 contempt conviction.   See Castagna I, supra, 387 N.J.Super. at 608.   We subsequently held, however, that defendant's statements to Celia were admissible in this case to show defendant's motive and state of mind.   Castagna II, supra, 400 N.J.Super. at 186–87.   Furthermore, the trial judge instructed the jury that the instant charge of contempt was for “conspiring to commit the murder of” Joyce.   Thus, defendant was tried for that crime, and not retried for causing Celia to contact Joyce.

Defendant also claims the trial judge should have severed his conspiracy and contempt charges under State v. Chenique–Puey, 145 N.J. 334 (1996).   However, severance is not required if evidence of the TRO “ ‘would be admissible under [N.J.R.E. 404(b) ] in the trial of the remaining charges.’ ”  Id. at 341 (quoting State v. Pitts, 116 N.J. 580, 601–02 (1989)).   Here, we ruled that, under Rule 404(b), “the TRO is very relevant and material to the State's theory of motive,” and that “evidence of the TRO should be admitted with careful instruction[s] to the jury.”  Castagna II, supra, 400 N.J.Super. at 183, 186.   The trial judge gave precisely those careful instructions.   Accordingly, severance was not required.

XI.

Defendant next contends that his sentence is excessive.   He complains that he was sentenced under the No Early Release Act, but that act clearly applies “upon conviction of ․ [first-degree] conspiracy to commit ․ murder.”   N.J.S.A. 2C:43–7.2a, b, d(1).   He also claims the trial judge should not have found aggravating factors one through four, and should have found mitigating factor eight.8  We must “consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether ‘the factfinder [has] appl[ied] correct legal principles in exercising its discretion.’ ”  State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v. Roth, 95 N.J. 334, 363 (1984)).

Defendant claims that, in finding aggravating factors one and four, the trial judge improperly considered his former position as chief of police.   He was suspended from that position on July 30, 2003.  Castagna II, supra, 400 N.J.Super. at 172.   At his May 7, 2004 sentencing, as part of his judgments of conviction for harassment and contempt, the judge ordered a forfeiture of defendant's public office of police chief and his permanent disbarment from public office under N.J.S.A. 2C:51–2a(2) and –2d.  Id. at 173.   We reversed those judgments of convictions on August 21, 2006, Castagna I, supra, 387 N.J.Super. at 609, but defendant apparently never resumed office.

The trial judge did not err in finding that defendant's former position of police chief should be considered under aggravating factor one, which broadly considers “[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner.”  N.J.S.A. 2C:44–1a(1).   The judge quoted State v. Gardner, 113 N.J. 510 (1989), which held that the

defendants' status as volunteer firefighters ․ renders especially reprehensible the “nature and circumstances” of this offense, namely, arson.   They, perhaps better than anyone, should know the risks to property and life that are attendant to any fire.   Having given their time and efforts to other fires, and having witnessed first-hand the destruction that accompanies fires, it is particularly offensive that these defendants could then purposely torch a building.

[Id. at 520–21.]

The judge here noted that, although suspended and then terminated, defendant “more than anyone should understand the consequences of his actions in conspiring to murder his own wife,” rendering his conduct “especially heinous” and “reprehensible.”   We agree.   See State v. Allison, 208 N.J.Super. 9, 21 (App.Div.), certif. denied, 102 N.J. 370 (1985).   Defendant's suspension and forfeiture of office did not erase his knowledge, from years of training and experience as a police officer, of the illegality and risks of conspiring to murder, and of violating an FRO. To rule otherwise would inaccurately treat defendant as if he had never received that training and experience.

The trial judge erred, however, in considering defendant's former position in finding (and giving limited weight to) aggravating factor four.   That is a more focused provision which applies where “defendant's offense ․ involved a breach of the public trust under chapters twenty-seven and thirty, or the defendant took advantage of a position of trust or confidence to commit the offense.”  N.J.S.A. 2C:44–1a(4).   Chapter Twenty–Seven, “Bribery and Corrupt Influence,” and Chapter Thirty, “Misconduct in Office:  Abuse of Office,” generally apply to a “public servant,” defined as “any officer or employee of government, ․ and any person participating ․ in performing a governmental function.”  N.J.S.A. 2C:27–1g.   As no one claims defendant took advantage of a position of trust or confidence to commit the offenses, or was performing a governmental function, the issue is whether he was an “officer or employee of government” at the time of the August–October 2004 conspiracy.

Defendant may have remained an officer or employee of government after his July 2003 suspension.   See State v. Bullock, 136 N.J. 149, 150 (1994) (“a suspended state trooper remain[s] a public servant for the purposes of a criminal prosecution for official misconduct” under N.J.S.A. 2C:30–2a).   However, at the May 7, 2004 sentencing, defendant “forfeit[ed] such office, position or employment” and was “forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.”  N.J.S.A. 2C:51–2a(2), –2d.   Thus, when defendant conspired with Hall, he was not a public servant.

The trial judge held that aggravating factor four applied because defendant “was charged with protection of the public and that trust was violated by his actions in this case.”   She ruled that while “his actions did not necessarily always occur while on duty ․ the seeds may certainly have been and the breach of his oath even as a suspended or terminated chief of police certainly to protect and defend the public call for some consideration of this aggravating factor.”

We cannot agree.   Aggravating factor four focuses on “defendant's offense,” that is, the offense(s) of conviction.  N.J.S.A. 2C:44–1a(4).   Defendant was convicted of conspiracy to commit murder and the resulting contempt of the FRO. Before the May 2004 forfeiture, defendant voiced that he might murder Joyce, but he had not yet begun his conspiracy with Hall or anyone else.   After the forfeiture, defendant certainly conspired with Hall to murder Joyce, but he was no longer charged with protection of the public, or under oath or entrusted to do so, because he was no longer a public servant.   Thus, under the “offense”-based language of N.J.S.A. 2C:44–1a(4), the judge erred in applying aggravating factor four.

Accordingly, we remand for resentencing.  “[W]hen an appellate court determines that the trial court has found aggravating and mitigating factors unsupported by the record, the appellate court can intervene and disturb such a sentence with a remand for resentencing.”  State v. Bieniek, 200 N.J. 601, 608 (2010).   Indeed,

where the proper legal principles have not been applied or the facts found by the judge are not supported by the record, it is not for us to agree or disagree with the sentence;  it is for the judge to resentence, applying the correct sentencing guidelines to the facts of record.

[State v. Dalziel, 182 N.J. 494, 501–02 (2005).]

Accordingly, we must remand.   We express no opinion regarding defendant's “ultimate sentence.”  Id. at 506.

For purposes of remand, we consider defendant's challenge to the trial judge's finding of aggravating factor two, “[t]he gravity and seriousness of harm inflicted on the victim.”  N.J.S.A. 2C:44–1a(2).   At sentencing, Joyce related that subsequent to defendant's arrest, she developed several stress-related disorders, has panic attacks because she fears assault, and feels shame for marrying defendant and endangering her daughter.   The judge emphasized that Joyce found herself to be the target of murder conspiracy orchestrated not by a stranger but “by her former husband, ․ a man with whom she had shared her home, her trust and she thought her future.”   The judge found “the emotional harm cannot be disregarded and it will carry over into her personal relationships perhaps for the rest of her life.”

As the trial judge noted, “psychological harm ․ has been considered relevant under this aggravating factor.”  State v. Kromphold, 162 N.J. 345, 357 (2000).   The cases addressing this issue, however, have all addressed psychological harm in the context of physical injury or in-person assault.   See id. at 348, 357–58 (victims injured in collision);  State v. Logan, 262 N.J.Super. 128, 130–132 (App.Div.) (victim subjected to sexual assault), certif. denied, 133 N.J. 446 (1993);  State v. Kelly, 266 N.J.Super. 392, 395–96 (App.Div.1993) (victim threatened with baseball bat).   Neither we or the Supreme Court has determined whether psychological harm could support aggravating factor two where the victim was unaware of the crime (here, the plot to murder Joyce) until after the defendant was arrested for that crime.

We cannot rule that it is impossible as a matter of law for a victim to develop psychological harms in such a situation.   The trial judge, who heard and observed Joyce, was in a better position to gauge whether she in fact suffered from the psychological and emotion harms she claimed.   We cannot say that the judge clearly erred in relying on Joyce's competent and reasonably credible evidence that she suffered such harm.   We agree with the judge, however, that this factor can be given only limited weight.

Because we are remanding, we decline to resolve defendant's remaining sentencing arguments, which he did not raise before the sentencing judge.   We offer the following observations.   In finding “[t]he risk that the defendant will commit another offense,” N.J.S.A. 2C:44–1a(3), the judge considered defendant's lack of remorse and failure to accept responsibility.   See State v. Carey, 168 N.J. 413, 426–27 (2001).

Defendant now claims that such consideration violated his right to remain silent.   See Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307, 1316, 143 L. Ed.2d 424, 439 (1999) (expressing no opinion on “[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility”).   On remand, if the judge again relies on defendant's lack of remorse and failure to accept responsibility to find aggravating factor three, the judge should make clear whether that finding is based on defendant's silence, or on his words and actions, for example, his commission of these offenses despite or because of his conviction and sentencing for prior crimes against Joyce.

Defendant similarly now claims that the trial judge relied on his silence in rejecting mitigating factor eight.  N.J.S.A. 2C:44–1b(8) (“defendant's conduct was the result of circumstances unlikely to recur”).   If the judge again rejects that mitigating factor, the judge should likewise clarify whether the rejection is based on defendant's silence or on his words and actions.   The judge should do the same if she again rejects mitigating factor nine.   N.J.S.A. 2C:44–1b(9) (“[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense”).   See State v. Towey, 244 N.J.Super. 582, 593 (App.Div.) (describing these factors as “related”), certif. denied, 122 N.J. 159 (1990).

XII.

Finally, defendant alleges that the trial court erred in denying a motion to dismiss based on entrapment.   Defendant states that he made such a motion on August 19, 2005, before his first trial, but he fails to supply us with any transcripts, opinions, or orders showing a ruling by the judge in the first trial.   Under our rules, “[t]hat deficiency prohibits review of” his claim of any error by the judge in the first trial, so we “refus[e] to address this issue.”   See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (citing R. 2:5–3(a) and 2:6–1(a)(1)(C)).

In any event, defendant was required to re-raise due process entrapment in his second trial.9  Entrapment is a fact-sensitive defense, and those facts are elicited primarily at trial.   Indeed, statutory entrapment under N.J.S.A. 2C:2–12 “is an affirmative defense, which the defendant must prove by a preponderance of the evidence” to the jury.  State v. Florez, 134 N.J. 570, 583 (1994).  Even though “[d]ue process entrapment poses an issue of law that must be resolved by the court,” id. at 584, the Supreme Court requires that “in addressing the issue of due process entrapment, the trial court should rely on the evidence presented during the course of the trial and any additional hearings that might be necessary to provide the proper factual basis to make that determination,” id. at 591.

Because the validity of a claim of entrapment must be determined using the trial evidence, a new trial requires a new claim of entrapment.   The evidence at the second trial may not be the same as at the first trial.   Furthermore, the “defendant must initially put forth some evidence of due process entrapment;” if he does, “the burden switches to the State” to “disprove due process entrapment by ‘clear-and-convincing’ evidence.”  Id. at 590.   A new claim of due process entrapment is necessary to alert the trial judge of the need to determine whether the defendant and the State have satisfied their respective evidentiary obligations, and to determine if “any additional hearings ․ might be necessary to provide the proper factual basis to make that determination.”  Id. at 591.

Here, defendant never raised a claim of entrapment after his first trial, and thus never alerted the new trial judge of a need to make those determinations at the new trial.   Thus, he has waived any claim that the evidence at the second trial shows he was entrapped.  “[A] litigant must ‘make known his position to the end that the trial court may consciously rule upon it.’ ”   State v. Robinson, 200 N.J. 1, 19 (2009) (citation omitted;  refusing to entertain ground for suppression not raised in the suppression motion);  State v. Badr, 415 N.J.Super. 455, 474 (App.Div.2010) (declining to address selective prosecution claim not raised in the trial court).

Even if we could review this claim for plain error, it would fail.   Rule 2:10–2 provides that we may notice plain error in the interests of justice, but we must disregard “[a]ny error or omission ․ unless it is of such a nature as to have been clearly capable of producing an unjust result.”  “Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights.”  Morton, supra, 155 N.J. at 421.  “[E]xcept in extraordinary circumstances, a claim of error will not be entertained unless it is perfectly clear that there actually was error.”  State v. Macon, 57 N.J. 325, 333 (1971).

The “principle elements [which] serve to constitute the operative standard that measures due process entrapment” are “the justification for the police in targeting and investigating the defendant as a criminal suspect;  and the nature and extent of the government's actual involvement in bringing about the crime.”  State v. Johnson, 127 N.J. 458, 474–75 (1992);  State v. Brooks, 366 N.J.Super. 447, 455–57 (App.Div.2004).

Here, defendant “actually had the core idea for the crime.”   See Johnson, supra, 127 N.J. at 476.   It was defendant who at the beach first expressed the desire to kill Joyce or have Hall kill her.   When Hall approached the prosecutor's office and revealed defendant's expressed intention and initial plans, the office had both “reasonable suspicion” and “cause not to discount [defendant's] expressed desire [to harm Joyce] as wishful thinking or an idle threat.”   See id. at 475–77.   Defendant's animus toward Joyce had already resulted in a restraining order, he had told Celia that Joyce would “end up in trunk of a car,” and he had violated the restraining order by getting a .38 caliber gun that he clearly had the training to use.  “[U]nder the circumstances, the police had adequate justification to direct their investigative authority against defendant[ ],” see id. at 477, to prevent a serious offense, State v. Abdelnoor, 273 N.J.Super. 321, 334 (App.Div.1994), particularly after the initial monitored conversation corroborated Hall's information, see State v. Riccardi, 284 N.J.Super. 459, 467–68 (App.Div.1995).

“Although the [prosecutor's office through its informant] devised the actual plan, it incorporated exactly [defendant's] basic idea.”   See Johnson, supra, 127 N.J. at 476.   When Hall “presented him with a specific criminal plan, he developed it further” by explaining where Joyce worked, revealing what car she drove, and discussing how to evade security cameras.   See id. at 478.   The authorities “did not resort to excessive inducements” or “persistent solicitations in the face of unwillingness, nor was there any heavyhanded pressure brought to bear on defendant[ ].”  See id. at 479.  “No tactics, objectively considered, were calculated to overwhelm.”   See ibid.   To the contrary, Hall repeatedly asked defendant whether to proceed to kill Joyce, and defendant consistently told Hall to “accomplish the mission,” said Hall would be a “hero,” and impatiently asked “why don't you do your job?”

We are concerned by the reduced “supervision over the informant[ ] by the prosecutor,” Florez, supra, 134 N.J. at 587, inherent in the reliance on Hall to record most of the conversations, which “reliance was compounded when the taping equipment malfunctioned” on one occasion, State v. Grubb, 319 N.J.Super. 407, 417 (App.Div.), certif. denied, 161 N.J. 333 (1999).   The office justified that reliance as operationally necessary, as Hall and defendant were used to speaking at all hours of the day and night, but it added an uncomfortable element.10  Our concerns are mollified, however, because the crucial motel room meeting, and the key calls immediately before and after the “murder” of Joyce, were monitored by law enforcement.   When we consider all the evidence at trial, defendant has not shown that the lack of a claim of entrapment at his second trial was “of such a nature as to have been clearly capable of producing an unjust result.”  R. 2:10–2.

Convictions affirmed;  remanded for resentencing in accordance with this opinion.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. Defendant has supplied us with Detective Zubrzycki's report summarizing the audio recordings.

2.  FN2. The State argues that these records, though marked for identification at trial, were not introduced into evidence.  “Generally, we do not consider certifications and exhibits that were not presented to the trial court.”  State v. Giordano, 283 N.J.Super. 323, 330 (App.Div.1995).   Here, however, the trial judge indicated that she had read “the appendix with regard to the witness [re]location program,” which supports defendant's claim that these documents were attached to his motions below.   As the trial judge apparently considered them, so shall we.

3.  FN3. Defendant's showing does not equal those “unusual situation[s] that impel[led] the grant of a psychiatric examination as a precondition to a determination of competence.”  R.W., supra, 104 N.J. at 21;  see State v. Butler, 27 N.J. 560, 572, 578–80 (1958) (evidence, including state psychiatric reports, showed that the witness was mentally deficient and was committed to the insane asylum for two months due to mental derangement, denominated as “Chronic Brain Syndrome associated with Convulsive Disorder, with Behavior Reaction”), cert. denied, 362 U.S. 984, 80 S.Ct. 1074, 4 L. Ed.2d 1019 (1960);  State v. Franklin, 49 N.J. 286, 287–88 (1967) (evidence showed that the witness had once been committed to the state hospital for the insane, and the trial court had sufficient “doubt on the issue of competency” to appoint a psychiatrist for a competency examination).

4.  FN4. As the trial judge found, “efforts had been made on both sides really to try and obtain those records,” including issuance of a court order.

5.  FN5. In any event, defendant has not shown that the records would be favorable and material, particularly as the Florida medical institutions released Hall within three days under the Baker Act. See State v. Marshall, 148 N.J. 89, 155 (Marshall III ) (“evidence is material for Brady purposes ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different’ ”) (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).

6.  FN6. Defendant has not supplied us with, or asked us to review, the audio or video tape.

7.  FN7. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

8.  FN8. Defendant does not challenge the judge's finding of aggravating factor nine, “[t]he need for deterring the defendant and others from violating the law.”  N.J.S.A. 2C:44–1a(9).   The judge also found mitigating factor seven, that “defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense.”   N.J.S.A. 2C:44–1b(7).

9.  FN9. As the State notes, under the “law of the case” doctrine, rulings that relate to a first trial are not necessarily binding at a new trial.   State v. Reldan, 100 N.J. 187, 205 (1985);  State v. Hale, 127 N.J.Super. 407, 413 (App.Div.1974).

10.  FN10. Defendant notes that cellphone billing records for August 25 through October 8, 2004, show 232 minutes of telephone conversations between defendant and Hall, but Detective Zubrzycki testified that the prosecution has only one and one-half hours of tapes.   Hall testified that he could not record all of the conversations because some occurred when he was with other people, and on one call the equipment malfunctioned.   With the exception of that one call, the State relied at trial only on conversations during this period that were recorded.

PER CURIAM

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