STATE OF NEW JERSEY, Plaintiff–Respondent, v. ADEMIR RAMALHO, a/k/a ADEMIR ROCHA RAMALHO, Defendant–Appellant.
DOCKET NO. A–2056–09T3
-- September 12, 2013
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief; Ashlea D. Thomas, Deputy Attorney General, on the brief).Appellant filed a pro se supplemental brief.
A jury found defendant Ademir Ramalho guilty of murder, N.J.S.A. 2C:11–3a(1), third-degree possession of weapon with the purpose of using it unlawfully against another, N.J.S.A. 2C:39–4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(d). After merging defendant's conviction for the weapons offenses, the judge sentenced him to a fifty-year term of imprisonment, subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43–7.2. The judge also imposed appropriate fines and assessments.
Defendant's attorney raises two issues on appeal:
I. THE TRIAL JUDGE IMPROPERLY REFUSED,
DESPITE MULTIPLE, DETAILED OBJECTIONS FROM TRIAL COUNSEL, TO INCLUDE A REINSTRUCTION ON DIMINISHED CAPACITY IN THE RESPONSE TO A JURY QUESTION WHICH ASKED FOR REINSTRUCTION ON MURDER, AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER AND INSANITY.
II. THE TRIAL JUDGE IMPROPERLY ADMITTED
TESTIMONY OF AN EXPERT WITNESS REGARDING FORENSIC TESTING THAT WAS DONE AT A LABORATORY WHERE THE WITNESS WAS A SUPERVISOR, BUT NOT ONE OF THE PERSONS WHO ACTUALLY PERFORMED (OR EVEN OBSERVED) THE TESTING WHICH TOOK PLACE; THE COURT SHOULD HAVE SUSTAINED THE OBJECTION TO THIS TESTIMONY BECAUSE THE EVIDENCE PROVIDED BY THIS WITNESS VIOLATED THE CONFRONTATION RIGHTS OF DEFENDANT.
In a pro se supplemental brief, defendant raises three additional issues:
I. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL
WHEN THE JUDGE ALLOWED THE CONFESSION MADE BY DEFENDANT INTO EVIDENCE DESPITE THE VIOLATION OF HIS MIRANDA RIGHTS.
II. THE TRIAL COURT'S ERROR OF ALLOWING THE
PICTURES OF THE VICTIM'S STAB WOUNDS INTO EVIDENCE IN VIOLATION OF N.J.R.E. 403(B), DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
III. DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF
THE VIENNA CONVENTION ON CONSULAR RELATIONS [WERE] WRONGFULLY DENIED. (Not Raised Below).
Because the re-instruction on murder given to the jurors in response to their request did not include direction on the relevance of evidence of defendant's mental condition to the State's burden of proving the elements of murder — a discussion that was included in the oral instruction on murder preceding deliberations — we reverse.
At around noon on Sunday, July 23, 2006, defendant stabbed Luzia Emiliano, his former wife, on a public street in Elizabeth. He stabbed her four times, once in the arm, once in the back and twice in the chest. She died because defendant thrust the knife with sufficient force to sever her aorta and puncture her right lung.
Although Emiliano divorced defendant in May 2006, she did not leave their home until early July. Thereafter, she shared an apartment in Elizabeth with a friend, Jose Peluyera. Following Emiliano's move, those who knew defendant noted a change in his appearance, the condition of his home and his work performance, and defendant saw a doctor who prescribed an anti-depressant. Defendant also called Emiliano's relatives and her friends asking where Emiliano was, urging them to have her come home and at various times threatening to kill himself, Emiliano or Emiliano's son if she did not return to him. In addition, he wrote a suicide note asserting his intention to jump off a bridge, in which he indicated that only Emiliano could save him.
Defendant also went to the truck stop where Emiliano had worked. There, he spotted Peluyera, confronted him at the gas pump and pulled from Peluyera's neck a gold chain Emiliano had given to defendant but taken with her. When Peluyera broke free, defendant drove around on the gas station property chasing him. After that incident, Emiliano obtained a temporary restraining order. Defendant was served with the complaint and temporary restraints, which included notice of a hearing scheduled for July 26, 2006.
On the morning of July 23, defendant put a knife, a can of gasoline and bottles of Tylenol and vitamins in a rented van and drove to the street where Emiliano was living. He arrived at around noon, as she was about to get into her car. Defendant positioned the van to block her departure, got out and stabbed her.
Several people saw defendant stabbing Emiliano, and one of them, William Hunlock, attempted to intervene by grabbing defendant's shoulder. Although defendant looked at Hunlock and pointed his knife at him, defendant turned back and stabbed Emiliano again. At that point, Emiliano was lying on the hood of the van, and Hunlock, still trying to stop him, smashed his coffee mug over defendant's head. At that point, defendant got into the van and backed up to leave; as he did, Hunlock lifted Emiliano off the van's bloody hood.
Defendant drove for a time and then poured gasoline on himself, but he could not find anything he could use to light the gasoline. Thus, he continued to drive, but upon seeing a patrol car of Kean University's campus police force, defendant pulled across several lanes of traffic and came to a stop in front of the patrol car. The officer asked defendant what he was doing, and defendant, a Brazilian who had lived and worked in the United States for fifteen years but had not obtained citizenship, said “I killed my wife.” He was advised of his rights and arrested.
Another officer, who stood by defendant on the curb while the first officer turned off the van, heard defendant muttering to himself in English, Spanish and Portuguese about his wife's poor treatment of him and her failure to appreciate the large sums of money he had spent on her and the hard work he had to do to earn it. Defendant's clothes smelled of gasoline, and there was an open gas can, bloody clothing and pill bottles in the van.
Officer Alex Negrin of the Elizabeth Police Department responded to the scene and transported defendant to the department's detective bureau.1 There, Detective Paul Pasternak spoke with defendant and had him change his gasoline-soaked clothes.
An audio/video recording of the hour and a half interview was made and subsequently translated. Detective Pasternak and Officer Negrin were present. Although defendant said he did not need to hear his rights, Officer Negrin, using a form written in Spanish and speaking in Spanish, advised defendant of his rights in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966). Defendant signed a waiver of his rights.
During that interview, defendant, sometimes speaking in English before receiving a translation of a question and switching between speaking in English, Spanish and Portuguese, delivered what can best be described as a narrative statement, peppered with Negrin's requests for clarification and his statements designed to move defendant's narrative from temporally distant events forward.
Defendant gave a detailed history of his relationship with Emiliano since their childhood in Brazil and a detailed explanation of how he figured out the area of Elizabeth in which Emiliano was living and pinpointed her street by spotting her parked car. He also described his return to Emiliano's street that morning and his spotting of Emiliano as she approached her car around noon. Defendant said he pulled the van close to Emiliano to block her departure and then got out and stabbed her four times. He also mentioned a neighbor of her's hitting him in the head with a bottle and said he thought he ran Emiliano over after inflicting the fatal wound.
Defendant also tried to explain Emiliano's importance to him, his inability to live without her and his intention to kill her and himself. He noted that when he was injured overseas, he prayed for more time with Emiliano, and his prayer had been answered.
The interview was brought to a close shortly after defendant told the detectives he had taken two hundred pills — a combination of aspirin, Tylenol and Aleve, started to cry and said he was “crazy mad.” The officers summoned an emergency medical technician, who found his pulse, respiration, blood pressure, temperature and other vital signs normal. Responding to all of the technician's questions in English, defendant said he had not taken any drugs or alcohol and had no complaint other than a scratch on his head. She determined that there was no reason to take him to the hospital.
Samples of defendant's blood and urine were taken on July 24. They were tested at Analytic Biochemistries, and Dr. Theodore Siek, a supervisor and director of the testing facility, testified about the results and expressed his opinion that defendant had not taken medication within the past twenty-four hours. Dr. Siek admitted that he probably had not been observing the work of the two chemists who did the testing because they knew how to do the testing. His opinion that defendant had not consumed alcohol or drugs in the twenty-four hours preceding the collection of the blood and urine samples on July 24, 2006, was based upon the chemists' notes, which Dr. Siek used to prepare the report he signed.
Dr. Siek explained that if defendant had taken Tylenol within twenty-four hours, the test would have been positive for “acetaminophen.” He said the chemist who did the test for that substance would have seen a blue spot created by the interaction of the reagent and a sample containing Tylenol. Dr. Siek knew that the chemist's finding was negative because the form, which listed substances with adjacent blanks, bore no marking for this substance. Although there were other instances in which a negative finding was indicated by an “N” placed in the blank adjacent to the substance, Dr. Siek was confident that a blank space also meant a negative result.
The defense's theory of the case was that defendant suffered from a disease of the mind and mental disorders that precluded him from purposely or knowingly killing Emiliano and from knowing the nature and quality of the act or that it was wrong.
In the opinion of the defense expert in psychiatry and psychoanalysis, Dr. Arnaldo Apolito, defendant suffered from delusional disorder of the grandiose and erotomanic types. Dr. Apolito found defendant's psychotic ideas — such as his belief that Emiliano told other women about his sexual prowess — indicative of grandiose delusions, and he found defendant's belief that he needed Emiliano “for his life ․ [as] if she was part of him” to be indicative of erotomanic delusions. Dr. Apolitio explained that due to his delusional disorders, as Emiliano began to drift away from defendant, he became terrified that she was being led astray by others who would destroy her love for him and cause him to lose the woman who was his god and his queen and for whom he had waited all of his life.2
Dr. Apolito had a third diagnosis for defendant — depersonalization disorder — a psychosis, or severe mental illness, which involves “[l]oss of contact with reality, loss of a normal thought processing [and] loss of normal perceptions.” Dr. Apolito said that as a psychoanalyst, he strongly and validly believed
that unconsciously [defendant] felt that the only way to remain united with her would be to take her away from the hands of [the people destroying their relationship] and kill her, then kill himself and, as he says in his dreams that then they would be united forever, you know, in the next life and then, of course, nobody would be able to separate them.
According to Dr. Apolito, defendant was in a psychotic state of depersonalization when he killed Emiliano. Defendant
felt outside of his body and he felt he was watching what this alter ego, this other individual, was doing[,] and he believed that this other individual he was watching was the evil spirit and this evil spirit was acting like a machine with no feelings and a machine he could not control.
When asked about the impact of defendant's disorders on his ability to act with purpose or knowledge and know right from wrong, Dr. Apolito said that a person who feels “unreal,” “dazed” and “confused,” “cannot reason [or] act with knowledge and purpose and planning.” In his view, defendant was acting like a robot and “could not know that he was acting against the law.” Defendant had told him that when he left Emiliano's street, he thought he had killed Emiliano by running her over, which is what Dr. Apolito thought defendant was thinking when he told the campus police he had killed his wife. In Dr. Apolito's opinion, defendant did not realize he stabbed Emiliano until later.
The State's forensic psychologist, Dr. Louis Schlesinger, disagreed with all of Dr. Apolito's diagnoses. In his opinion, defendant acted out of uncontrolled anger and, although “upset” and “distracted,” was thinking clearly and logically. Dr. Schlesinger noted that defendant had armed himself with a knife, carried gasoline, wanted to kill Emiliano and did so. In his view, defendant's only abnormal mental conditions were depressive and personality disorders, and they would not have interfered with his ability to act purposely or knowingly or his capacity to distinguish right from wrong or to know the “nature and quality of his acts.” In short, in Dr. Schlesinger's opinion defendant's conditions had nothing to do with his state of mind at the time of the crime.
We agree with defendant that the trial court's response to the deliberating jurors' request for an explanation of and re-instruction on the legal definitions of insanity and the three forms of homicide at issue warrants reversal of defendant's conviction for murder. During deliberations the jury sent the court this note, “[p]rovide an explanation of the legal definition of insanity again,” “[p]rovide again an explanation of the legal definition of murder, aggravated manslaughter and reckless manslaughter,” and “[p]rovide a written copy of definitions.” 3
Defense counsel promptly urged the court to include re-instruction on the relevance of evidence of defendant's mental diseases and illness to the State's obligation to prove he purposely, knowingly or recklessly caused Emiliano's death. The court declined, noting that the jurors had not asked for that instruction. After the court, with the assistance of the attorneys, prepared and reviewed a typed version of the requested instructions, defense counsel renewed his request for an instruction on mental illness negating an element of the crimes, arguing that this evidence was the only evidence that would allow the jurors to “get from murder down to” the lesser-included offenses of murder — aggravated and reckless manslaughter. The court again denied the request on the ground that the jurors had not asked for it and explained, “I assume they don't need that because they understand it.”
Ordinarily, courts may presume that the jury understood instructions, but that presumption can be undermined by a question from the deliberating jurors. State v. Savage, 172 N.J. 374, 394 (2002). “It is firmly established that ‘[w]hen a jury requests a clarification,’ the trial court ‘is obligated to clear the confusion.’ ” Ibid. (alteration in original) (quoting State v. Conway, 193 N.J.Super. 133, 157 (App.Div.), certif. denied, 97 N.J. 650 (1984)). Here, where the jury's note asked for explanations and written instructions, not just written instructions, some inquiry was warranted. The court could have readily satisfied that obligation by orally re-instructing the jurors and asking whether there was a need for further explanation. But because the attorneys consented to presentation of written instructions and because the court's decision to proceed as it did was not in itself clearly capable of producing an unjust result, we do not reverse on that ground. R. 2:10–2.
Reversal is required because the typed instruction on murder presented to the jurors, C–8, materially differed from the oral instruction on murder given to the jurors before deliberations commenced. Had the typed instruction on murder conformed with the prior oral instruction, defense counsel would have had no valid reason to request an explanation of the relationship between the elements of murder and evidence of defendant's mental conditions.
The oral instruction on murder given prior to deliberations included the direction defense counsel sought when he argued that the evidence of defendant's mental condition was the only evidence that would allow the jurors to “get from murder to” the lesser-included offenses — aggravated and reckless manslaughter. That instruction concluded as follows:
Now also there's a second consideration in this case and ․ that is the issue of not guilty because the defendant could not formulate the state of mind of purposeful or knowing conduct. In considering the prosecution's burden to prove every element of an offense charged beyond a reasonable doubt, the jury must consider all evidence of a defendant's mental state including that offered as evidence of diminished capacity or of insanity.
Evidence adduced during this trial to prove the defendant's insanity shall be considered and weighed by you, the jury, with all other evidence whether or not you find the defendant insane in regard to the ability of the defendant to form the requisite mental state of purposeful or knowing conduct.
The typed instruction on murder, which was marked as court exhibit 8 and presented to the jury's foreman in response to the jurors' request, did not include the foregoing paragraphs.4
The discrepancy is problematic because “clear and correct jury instructions are fundamental to a fair trial.” State v. Adams, 194 N.J. 186, 207 (2008). While courts generally presume that jurors follow such instructions, they do not rely on the presumption where a jury's question suggests a misunderstanding that was not clarified, Savage, supra, 172 N.J. at 394, or “where inconsistent charges, one right and one wrong,” have been given and “a reviewing court cannot determine which one the jury followed.” State v. McInerney, 428 N.J.Super. 432, 446 (App.Div.2012), certif. denied, _ N.J. _ (2013).
Although neither the oral nor the typed instruction on murder was “wrong,” the presentation of an altered murder charge in response to the jurors' question injected an inconsistency clearly capable of effecting the jury's deliberations and its verdict on murder. R. 2:10–2; Savage, supra, 172 N.J. at 394. It is as likely as not that members of the jury would rely upon the typed instruction on murder rather than their recollection of the oral instruction on murder. Thus, a juror who recalled the oral instruction on murder, including the direction to consider all evidence of defendant's mental condition in deciding whether he purposely or knowingly killed, could well conclude, after reviewing the typed charge omitting that direction, that his or her recollection was faulty. Therefore, the clear oral instruction on a matter “material to the jurors' deliberations” on murder was implicitly contradicted by the inconsistent typed re-instruction on murder. We cannot presume that the jurors concluded the court left that part of the murder charge out because they had not asked for it.
Because the State's obligation “to prove every element of the offense charged beyond a reasonable doubt” is constitutionally mandated, State v. Delibero, 149 N.J. 90, 99 (1997); accord In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L. Ed.2d 368, 375 (1970), error infringing upon those rights requires reversal unless “the court [is] able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L. Ed.2d 705, 711 (1967); accord State v. Castagna, 187 N.J. 293, 312 (2006).
As we cannot say the error in the typed murder charge given to the jurors was harmless beyond a reasonable doubt, reversal is required. There is no basis for distinguishing the prejudicial impact of this error from that of a patently erroneous charge on a matter material to deliberations, which presumptively requires reversal. State v. Grunow, 102 N.J. 133, 148 (1986).5 Read as a whole, the murder charges contradict one another.
Although we ordinarily address claims of error that may be repeated on re-trial even though discussion of any additional error is unnecessary to our determination, in this case defendant's claim that admission of Dr. Siek's testimony violated his constitutional right of confrontation is better addressed by the trial court in the event the State intends to present his testimony on his re-trial for murder. Decisional law on this issue has evolved since the trial court addressed this question, and at this point the law is less than certain.
In Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 1365, 158 L. Ed.2d 177, 194 (2004), the United States Supreme Court held that the federal constitutional right to confrontation requires exclusion of otherwise admissible hearsay if it is “testimonial.” Since Crawford, the Court has elaborated on the meaning of “testimonial” in opinions addressing scientific evidence with the Court's members expressing disparate views and rationales. See Bullcoming v. New Mexico, _ U.S. _, 131 S.Ct. 2705, 180 L. Ed.2d 610 (2011); Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L. Ed.2d 314 (2009).
There have been additional developments in the law since the briefs on this appeal were filed. The Supreme Court decided Williams v. Illinois, _ U.S. _, 132 S.Ct. 2221, 183 L. Ed.2d 89 (2012), a case involving interpretation of DNA analysis done by a lab with which the expert was not associated. In Williams, five justices concluded that there was no violation of the Confrontation Clause because the hearsay evidence upon which the expert relied was not “testimonial”; but different reasons for that conclusion were given. Compare id. at _, 132 S.Ct. at 2243–44, 183 L. Ed.2d at 115–16 (plurality opinion) (reaching that conclusion because, viewed objectively, the primary purpose was not accusatory), with id. at _, 132 S.Ct. at 2261–62, 183 L. Ed.2d at 135 (Thomas, J., concurring in disposition only) (rejecting the primary purpose test and relying on the fact that the hearsay statement lacked formality). Moreover, the four dissenters in Williams concluded that because Williams is bereft of any majority reasoning, it is not binding precedent.” Id. at _, 132 S.Ct. at 2277, 183 L. Ed.2d at 152 (Kagan, J., dissenting). In addition to the recent decision of the Supreme Court, the New Jersey Supreme Court has granted certification in State v. Roach, 211 N.J. 607 (2012), a case involving the State's admission of a DNA expert's testimony referring to a DNA analysis done by another.
Because of the developments in the law since this trial court initially addressed the issue presented here and given the anticipated future statement of the New Jersey Supreme Court's views on Williams, it is appropriate to refrain from reviewing the trial court's decision made without benefit of the more recent decision and direct that the trial court consider the question anew if the State again seeks to introduce Dr. Siek's testimony without presenting the testimony of the chemist who performed the pertinent test.6 With respect to defendant's convictions for possession of a weapon with the purpose of using it unlawfully against another and unlawful possession of a weapon, any error in the admission of Dr. Siek's testimony was harmless — that is, we have no doubt that the verdict would have been the same if that testimony had been excluded.
We have considered the arguments raised in defendant's pro se brief in light of the record and concluded that they have insufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11–3(e)(2).
The trial court's decision to admit the statements defendant made from the time he stopped his van in front of the campus police officer through his recorded interview is based upon findings that are adequately supported by sufficient credible evidence and consistent with a proper application of the law to the facts. State v. Locurto, 157 N.J. 463, 470–75 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). We affirm the denial of the suppression motion substantially for the reasons set forth in the trial court's oral decision of March 18, 2009. We note that the translation of the interview indicates that Officer Negrin had difficulty understanding defendant, but the problems resulting from the officer's lack of comprehension are fully addressed by the translation. The more important question is whether defendant understood, and the translated transcript demonstrates that defendant had no difficulty understanding the officers.
In the absence of a “palpable” abuse of discretion, a trial court's decision to admit photographs of a victim's injuries is not grounds for reversal of a defendant's conviction. State v. McDougald, 120 N.J. 523, 582 (1990). Defendant has not provided the photographs to this court, but based on the descriptions in the record and their relevance to establish the nature of the attack, we find no abuse here. N.J.R.E. 401; N.J.R.E. 402; N.J.R.E. 403.
Defendant did not raise a claim based on a violation of the Vienna Convention on Consular Relations (VCCR) in the trial court. Article 36(1)(b) of the VCCR requires a state detaining a foreign national to give the detainee notice of his or her right to request assistance from the consulate's office. As defendant acknowledges, courts that have found or assumed that the VCCR includes a private right of enforcement have concluded that relief is not warranted without a showing of prejudice and the necessary showing requires proof that the defendant would have sought and the consulate would have provided assistance. State v. Jang, 359 N.J.Super. 85, 93 (App.Div.) (declining to decide whether there was an individual right to enforce the Convention and finding no prejudice and applying a standard), certif. denied, 177 N.J. 492 (2003); State v. Cevallos–Bermeo, 333 N.J.Super. 181, 182–83 (App.Div.) (same), certif. denied, 165 N.J. 607 (2000).
Here we have nothing to demonstrate prejudice other than an assertion in defendant's pro se brief that he would have invoked his right. That assertion is not only unsupported by competent evidence but also plainly contradicted by the competent evidence and reasonable inferences. Defendant voluntarily approached police officers, admitted to killing his former wife and, after being advised of his rights in accordance with Miranda, waived his rights to counsel and to remain silent. On these facts, one could not reasonably conclude that defendant would have opted to refrain from giving his narrative account to the officers and elected to seek assistance from the consulate instead.
Reversed in part; affirmed in part.
1. FN1. At the time of trial, Negrin was a detective.
2. FN2. Dr. Apolito was relying upon defendant's history of their relationship, which began during their childhood and was disrupted by Emiliano's uncle. Defendant had also told Dr. Apolito that he had been married to a woman for many years, who was the mother of his children but left her when Emiliano contacted him after her first marriage fell apart. Defendant's first wife and his children were among those who testified about the changes they noticed in defendant after Emiliano left him.
3. FN3. The note was read into the record twice. The transcript of the second reading indicates that the note read “legal definitions of insanity.” At our request, a copy of the note was provided and the quotation set forth above is of the note, and conforms with the first transcribed reading of the note, which reflects a request for the “legal definition of insanity.”
4. FN4. In fairness to the trial court, we note that neither defense counsel, in arguing for, nor the State in arguing against an instruction including this point of law, brought the discrepancy between the oral and typed versions of the murder instruction to the court's attention.
5. FN5. The parties did not address this material difference in the oral and written instructions or bring it to our attention even after we requested the typed instructions, which are obviously essential to a proper determination of the issue raised in the first point of defendant's brief. The State argues that the clarity of the initial instruction on diminished capacity in the general instruction and the strength of the evidence that defendant was acting purposefully and knowingly makes any error harmless. But for the conflicting murder charges, we would have agreed.
6. FN6. To the extent that the State argues that the testimony in this case was admissible pursuant to N.J.R.E. 703, we note that the evidence was not admitted for the limited purpose of evaluating the expert's opinion. See generally Agha v. Feiner, 198 N.J. 50, 63–64 (2009); Brun v. Cardoso, 390 N.J.Super. 409, 421 (App.Div.2006); State v. Vandeweaghe, 351 N.J.Super. 467, 480–81 (App.Div.2002), aff'd, 177 N.J. 229 (2003).