NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0359-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERTO PENA, a/k/a ALBERTO P. MARTINEZ, and MARTINEZ MARTINEZ,
Defendant-Appellant. _________________________
Argued April 7, 2025 – Decided July 24, 2025
Before Judges Gummer, Jacobs and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 19-10-2948.
Robert C. Pierce argued the cause for appellant (Jeff E. Thakker, of counsel; Robert C. Pierce, on the briefs).
Hannah F. Kurt, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Essex County Prosecutor, attorney; Hannah F. Kurt, of counsel and on the brief). John J. Santoliquido, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; John J. Santoliquido, of counsel and on the brief).
Tamar Y. Lerer, Deputy Public Defender, argued the cause for amicus curiae New Jersey Office of the Public Defender (Jennifer N. Sellitti, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the brief).
PER CURIAM
Defendant Alberto Pena appeals from his convictions for assault and
weapons offenses following a jury trial. He seeks dismissal of the indictment
and reversal of the judgment of conviction, or, in the alternative, a new trial. He
argues various evidentiary rulings regarding the State's presentation of
surveillance video were incorrect, evidentially infirm witness statements were
admitted, and the prosecutor made improper comments during his closing
argument. Defendant argues he was deprived of a fair trial. We disagree and
affirm.
I.
In July 2019, Newark Police officers responded to a report of a shooting
in front of a bodega and an adjacent barbershop. When they arrived, the officers
observed a blood-splatter trail and recovered an empty shell casing on the
A-0359-23 2 sidewalk approximately twenty-five feet from at trail. The victim of the
shooting, later identified as Andres Sosa, suffered a gunshot wound to his chin.
The police discovered security cameras installed at the bodega and at the
barbershop captured a portion of the incident. Although the footage did not
include the actual shooting, it depicted an altercation between two individuals
both before and after the shooting. The video shows the person officers believed
was the suspect working behind the bodega's counter wearing a white t-shirt and
black shorts and having both a ponytail and a tattoo of red lips on his neck. The
victim entered the bodega and talked to the suspect. When he left, the suspect
followed him outside. A quarrel ensued, and the suspect is then seen drawing
and pointing a handgun at the victim. After the parties stepped outside the
camera's view briefly, the victim reappeared clutching his face. This evidence,
combined with information from additional witness interviews the police had
conducted, ultimately led to defendant's identification and arrest.
A grand jury indicted defendant and charged him with first-degree
attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession
of a handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a).
A-0359-23 3 At defendant's jury trial, the State called members of the Newark Police
Department to testify, including Technical Service Unit Officer Alton Faltz and
Major Crimes Shooting Response Team Lead Detective Shaheed Brown.
Neither the victim nor the owners or employees of the bodega or barbershop
appeared.
As part of his investigation, Detective Brown photographed the victim's
significant facial injuries and interviewed multiple witnesses, including the
bodega owner and the victim, before identifying and arresting defendant.
Before Detective Brown testified at trial, the prosecutor informed the
judge and defense counsel:
I am going to be asking Detective Brown whether he took statements. I understand I can't ask him what those statements are. I understand that's hearsay. But just so the record, to everyone it [sic] is clear, I am going to be asking that he took statements as part of his investigation in this case and who those statements were from.
Defense counsel objected:
Judge, I guess I would object to it because we are not going to be talking about why they are not here. So, that's kind of opening a door a little bit on where were the people that gave the statements.
In response, the judge asked the prosecutor to explain his intended
approach with Detective Brown. The prosecutor responded:
A-0359-23 4 At a minimum . . . I was planning on naming the victim . . . . He has already been named in openings, has been named by other witnesses already here before the jury. At a minimum I am going to be naming him in part that I have photographs which [defense counsel] has that my lead detective took of the victim on the date of his statement which shows injuries to his face . . . .
Acknowledging "identification is ultimately a question for the jury,
whether you have witnesses doing the identifying or whether there is . . .
circumstantial evidence that permits a jury to conclude beyond a reasonable
doubt that the defendant is the person depicted in the video," the judge permitted
that "limited questioning."
Detective Brown testified he had interviewed multiple witnesses,
including the bodega owner and the victim before arresting defendant:
Q. [Detective] Brown, now, based on your investigation and following your interview with [the victim], what did you do next?
A. I attempted to look for the suspect.
Q. And did you identify who that suspect was?
A. Yes.
Q. Who was it?
A. [Defendant].
....
A-0359-23 5 Q. When you say you looked for [defendant], did you do anything official as far as looking?
A. Yes, I took a few statements from witnesses. The store owner –
Q. Did you eventually file charges against [defendant]?
Q. And that was again after your investigation, after your interview with [the victim], correct?
Following this exchange, the prosecutor published defendant's arrest photo to
the jury.
The State also called Officer Faltz to testify about the video footage he
had downloaded from the bodega and barbershop security cameras that showed
the interaction between defendant and the victim. Defense counsel objected to
Officer Faltz's testimony, arguing he lacked personal knowledge or ownership
of the video, and therefore could not authenticate it.
The State disagreed and proffered Officer Faltz
works for the City of Newark, at his regular assignment he responds to scenes to recover surveillance videos, on the date he responded to that, on that same date, a short
A-0359-23 6 time after the incident was processed and closed off, he received consent from the owner of the store. He then downloaded that video. He was told to download a specific time, time frame. He reviewed it at the time he was downloading it, [he] and I have reviewed it in preparation for his trial today, and his testimony . . . . [H]e can authenticate the location. He can authenticate that it's, in all candor[,] it's going to be the supermarket. He can authenticate the supermarket, inside, the outside, that it does fairly and accurately depict what it looked like and what he downloaded on that date . . . .
[(Emphasis added).]
The trial court found Officer Faltz's role in downloading and reviewing
the video shortly after the event was sufficient to permit him to authenticate the
recording and to satisfy the evidentiary prerequisite for the surveillance to be
admitted:
Rule 901 covers authentication and identification. It reads in its entirety, "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must [present] evidence sufficient to support a finding that the item is what its proponent claims." That is all that the rule requires . . . .
In general, there is, with the advent of the video, something that has been known now in shorthand . . . as the silent witness. The authentication of a film which purports to portray an actual criminal event taking place would not require the same type of authentication . . . . That's State v. Bunting, [187 N.J. Super. 506, 509 (App. Div. 1983)] . . . .
A-0359-23 7 Film evidence, which is introduced as independent evidence of the crime[,] should be admitted without corroborative testimony by an eyewitness if the film is otherwise authenticated.
Under the facts and circumstances proffered here, I am satisfied that the detective's response to the location and the obtaining of consent, as well as the review and downloading of the video in close proximity to the events that it purports to depict is adequate authentication for admissibility purposes. The video comes in.
Officer Faltz testified he had been dispatched to the crime scene to assist
investigating officers who were experiencing difficulty in downloading the
video surveillance. After the supermarket's owner consented, Officer Faltz
successfully retrieved and downloaded the video and noted he neither modified
nor altered the recording.
[Q.] [W]hen you responded to the scene, did you review the videos at the scene?
A. Maybe.
Q. Before downloading?
A. Before downloading? No.
Q. So, you do not – when you went to retrieve the videos, were you provided a specific timestamp to –
A. Correct.
A-0359-23 8 Q. And when you downloaded the video, did you check for any dates and time[s] to see if they were accurate?
A. Correct, yes.
Q. So, to do that you had to review the video, correct?
Q. Okay. So, is it safe to say that you had to review the videos to get the accuracy of the date and time or lack thereafter?
Q. So you reviewed the videos, correct?
A. Part of it, yes.
He also checked the accuracy of the date and timestamp embedded in the
video and determined that the timestamp was inaccurate, specifically being
approximately twelve hours off due to the surveillance system's use of military
time:
Q. Could you describe what the inaccuracy was?
A. The time and the date.
A-0359-23 9 Q. And how much was it off by?
A. I would say [by] approximately [twelve] hours.
Q. And how did you know that?
A. Because it was that afternoon and the actual system was in military time.
The trial judge admitted the footage and certain still images from it as evidence.
At the close of the State's case, defense counsel moved for a judgment of
acquittal and argued the evidence was insufficient to establish defendant's guilt.
Specifically, defense counsel emphasized the absence of a firearm, bullet, or
medical documentation. The judge denied the motion and held:
[I]f the jury were to determine beyond a reasonable doubt that . . . it is [defendant] on the video and that [defendant] used a handgun to shoot the victim in the face, they would be permitted to infer from those actions alone, that his intent was either to kill or to seriously injure.
Further, . . . they could conclude beyond a reasonable doubt that he unlawfully possessed a handgun.
In closing arguments, defense counsel highlighted the lack of physical
evidence and eyewitness testimony, challenged the identification of defendant,
and criticized the overall thoroughness of the investigation. The State relied on
surveillance video and police testimony, and argued that the handgun could not
A-0359-23 10 be recovered because the defendant was not apprehended immediately. The
prosecutor also referred to the contact Detective Brown had with the victim and
specifically noted the victim had provided a "statement" to him. The prosecutor
did not provide any details about that statement to the jury. Additionally,
addressing the lack of a weapon and the month-long interval between the
shooting and defendant's arrest, the prosecutor commented
Now, we don't have a handgun. As [Detective] Brown testified to, [defendant] was not arrested until almost a month later. [Defendant]'s actions are the reason why we don't have a handgun. [Defendant] was not arrested on the scene. [Defendant] fled the scene and eventually was not arrested until a month later. Plenty of time to get your gun, plenty of time to get a new haircut. Wasn't enough time, though, to get rid of his red lips tattoo on the side of his neck that is still here today.
During the deliberations, the jury asked to review specific portions of the
surveillance video and also to examine "Detective Brown's report of the victim
and statement." In answer to the second request, the judge told the jury:
If you will recall from my instructions, I did indicate to you that even though items might have been marked for identification, unless they were actually received in evidence –
. . . they cannot be provided to you. This is one of those items. It was marked for identification, but not
A-0359-23 11 received into evidence. I therefore, cannot provide the report for you. I am instructing you as I instructed you earlier, that it is your recollection of the detective's testimony that controls. Of course, you always have the option, if you wish, to have us play back a portion of the detective's testimony . . . . But I can't give you the report.
The jury ultimately acquitted defendant of attempted murder and second-
degree aggravated assault but convicted him of third-degree aggravated assault,
unlawful possession of a handgun, and possession of a handgun for an unlawful
purpose.
On September 8, 2023, the court sentenced defendant to a five-year prison
term for the aggravated-assault conviction to be served concurrently with a six-
year prison term with a forty-two-month parole ineligibility period under the
Graves Act1 for the firearm convictions.
Defendant on appeal raises five issues for our consideration:
POINT I
[DEFENDANT] WAS IDENTIFIED AS THE SHOOTER THROUGH HEARSAY AND AN IMPROPER INSINUATION ABOUT WHAT WAS IN DETECTIVE BROWN'S REPORT.
1 The Graves Act requires a mandatory prison sentence including a period of parole ineligibility for an individual's conviction of certain firearm and weapons-related offenses. N.J.S.A. 2C:43-6(c). A-0359-23 12 POINT II
AT MINIMUM, THE TRIAL COURT SHOULD HAVE ISSUED A LIMITING INSTRUCTION REGARDING THE OUT-OF-COURT STATEMENTS IMPLICITLY IDENTIFYING [DEFENDANT] AS THE SHOOTER.
POINT III
THE STATE FAILED TO PROPERLY AUTHENTICATE THE SURVEILLANCE VIDEO AND ITS WITNESS WAS INCAPABLE OF DOING SO; [THE VIDEO] AND THE STILL SHOTS SHOULD NOT HAVE BEEN ADMITTED.
POINT IV
THE TRIAL COURT SHOULD HAVE GRANTED [DEFENDANT]'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT V
THE PROSECUTOR'S SUMMATION WAS IMPROPER IN SEVERAL RESPECTS.
II.
In sum, defendant contends that the prosecutor used inadmissible hearsay
to link him to the shooting, and also challenges the authentication of the
surveillance video on grounds that the officer who downloaded it had not
A-0359-23 13 reviewed the entire recording. He also asserts the trial judge improperly denied
his motion for acquittal, and the prosecutor's closing remarks were improper and
undermined the fairness of his trial. We are not persuaded by these arguments.
A.
Defendant first argues Detective Brown improperly implied to the jury he
had superior knowledge about defendant's identification as the shooter from
witness interviews. He contends the detective's testimony about the
identification was improper because the witnesses the Detective interviewed did
not testify at trial.
We defer to a trial judge's evidentiary rulings and will disturb them only
if the judge misapplied discretion. State v. Scharf, 225 N.J. 547, 572 (2016).
We "will reverse an evidentiary ruling only if it 'was so wide off the mark that
a manifest denial of justice resulted.'" State v. Mauti, 448 N.J. Super. 275, 307
(App Div. 2017) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413
(2016)). When, however, "the trial court fails to apply the proper legal standard
in determining the admissibility of proffered evidence," we review the
evidentiary ruling de novo. State v. Williams, 240 N.J. 225, 234 (2019).
Specifically, defendant argues Detective Brown's testimony that he "took
a few statements from witnesses" and conducted an "interview with [the victim]"
A-0359-23 14 communicated an inescapable inference that the witnesses identified defendant
as the shooter. In opposition, the State contends these statements only described
Detective Brown's investigative steps that were not central to the case and
emphasizes that the primary evidence linking defendant to the crime was the
surveillance video and related photographic evidence.
Police officers are permitted to describe their actions and observations
based on first-hand knowledge. State v. Singh, 245 N.J. 1, 15 (2021).
Importantly, this information may not be derived from hearsay, however. See
State v. Branch, 182 N.J. 338, 350 (2005). Such testimony is admissible so long
as it does not relay, expressly or by implication, information that the officer
"'believed,' 'thought,' or 'suspected.'" State v. McLean, 205 N.J. 438, 460 (2011).
Both the Confrontation Clause and the hearsay rule are implicated if an officer
conveys, even by inference, evidence from a non-testifying declarant to
incriminate the defendant. State v. Bankston, 63 N.J. 263, 269 (1973). For
example, although officers may testify that they acted "upon information
received" to explain the course of an investigation, it is improper for them to
suggest or imply that such information specifically identified the defendant,
which can lead the jury to infer the existence of incriminating out-of-court
statements by non-testifying witnesses. Id. at 268-69.
A-0359-23 15 Here, Detective Brown testified only about the steps he had taken during
his investigation, including the standard procedure of interviewing witnesses.
His testimony referenced those interviews in a general manner, without relaying
any specific details or the substance of the statements obtained. Accordingly,
we discern no error in the trial court's decision to permit Detective Brown's
testimony regarding the manner and method of his investigation.
B.
Next, defendant contends that following the admission of Detective
Brown's testimony about his witness interviews, the trial court failed to instruct
the jury that it should not speculate about the contents of any out-of-court
statements nor infer the victim, the bodega owner, or any other witness had
identified defendant as the shooter. Rather than providing this limiting
instruction, the court directed the jury to rely solely on its own recollection of
Detective Brown's testimony. Defendant argues this approach exacerbated the
error because the court did not clarify the substance of any statements
purportedly made by the victim or other witnesses. Defendant asserts the trial
judge committed plain error that requires a reversal of his conviction. We
disagree.
A-0359-23 16 Because defendant did not raise this issue before the trial court, we review
the trial judge's decision and approach for plain error. Singh, 245 N.J. at 13.
"Under that standard, an unchallenged error constitutes plain error if it was
'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Therefore, "the error will be disregarded unless a reasonable doubt has been
raised whether the jury came to a result that it otherwise might not have
reached." Ibid. (quoting State v. R.K., 220 N.J. 444, 456 (2015)). A reviewing
court should consider whether the absence of an instruction was harmful in the
surrounding context of the trial itself. See State v. Garrison, 228 N.J. 182, 201
(2017).
Limiting instructions must be provided "when the evidence is first
presented and again as part of the final jury charge" and must explain "precisely
the permitted and prohibited purposes of the evidence, with sufficient reference
to the factual context of the case to enable the jury to comprehend and appreciate
the fine distinction to which it is required to adhere." State v. Rose, 206 N.J.
141, 161 (2011) (quoting State v. Barden, 195 N.J. 375, 390 (2008)); see also
N.J.R.E. 105.
Detective Brown's testimony was limited to the investigative steps he had
taken following the shooting, and no substantive information regarding the
A-0359-23 17 content of the witness interviews was presented to the jury. The officers already
had a description of the assailant based on video evidence, and the subsequent
interviews merely confirmed the identity of the individual depicted as
committing the crime. Detective Brown's testimony did not suggest that any
unavailable witness had implicated defendant. Therefore, there was no
evidentiary infirmity, and a limiting instruction was unnecessary.
C.
Defendant next argues the State failed to properly authenticate the footage
of the incident recorded by the bodega's security camera, and therefore, the
video should have been excluded from evidence. The Office of the Public
Defender, appearing as amicus curiae, amplifies this argument by asserting that
the video should not have been admitted into evidence because the State had not
presented testimony from any witness who was actually present at the scene
shown in the footage, nor from anyone with sufficient knowledge to confirm
that the video accurately portrayed the claimed events, date, and time. In
response, the State, joined by the Office of the Attorney General, also appearing
as amicus, maintains the video was properly admitted as independent evidence
of a crime and, as such, did not require corroborative testimony. See Bunting,
187 N.J. Super. at 509-10.
A-0359-23 18 We review evidentiary rulings concerning authentication deferentially and
will uphold them unless a trial judge's decision represents a clear error of
judgment. State v. Brown, 463 N.J. Super. 33, 51 (App. Div. 2020). Our
Supreme Court has long recognized "the authentication requirement of a
videotape is a direct offshoot of the authentication of photographic and motion
picture evidence." State v. Wilson, 135 N.J. 4, 16 (1994). Videos are admissible
if properly authenticated. Id. at 17. Proper authentication as a condition
precedent to admissibility is met by "evidence sufficient to support a finding
that the matter is what its proponent claims." N.J.R.E. 901. The proponent must
demonstrate "a prima facie showing of authenticity," which can be established
by direct or circumstantial proof at trial. State v. Joseph, 426 N.J. Super. 204,
220 (App. Div. 2012). Although important, "[t]his burden was not designed to
be onerous." State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016). "The
authentication rule 'does not require absolute certainty [nor] conclusive proof. '"
Brown, 463 N.J. Super. at 51-52 (quoting State v. Mays, 321 N.J. Super. 619,
628 (App. Div. 1999)). "Once a prima facie showing is made, the [evidence] is
admissible, and the ultimate question of authenticity of the evidence is left to
the jury." Mays, 321 N.J. Super at 628 (italicization omitted). "'Courts are
inclined to assess their role in authentication as that of a screening process[,]'
A-0359-23 19 and 'will admit as genuine writings which have been proved prima facie genuine
. . . leaving to the jury more intense review of the documents.'" Konop v. Rosen,
425 N.J. Super. 391, 411 (App. Div. 2012) (alteration in original) (quoting
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E.
901 (2011)).
To authenticate video evidence, "a witness must identify the persons,
places, or things shown in the . . . videotape." Wilson, 135 N.J. at 14. "[A]ny
person with the requisite knowledge of the facts represented in the . . . videotape
may authenticate it," irrespective of whether the authenticator was present at the
time the video was taken. Ibid. "[S]o long as the witness can verify" that the
video evidence "accurately represents its subject," they may authenticate it.
Ibid. The authenticator's testimony "must establish that the videotape is an
accurate reproduction of that which it purports to represent and the reproduction
is of the scene at the time the incident took place." State v. Loftin, 287 N.J.
Super. 76, 98 (App. Div. 1996).
The trial judge properly determined the surveillance video was
authenticated and appropriately exercised his discretion in admitting the footage
as evidence. The State presented testimony from Officer Faltz who personally
retrieved and downloaded the surveillance footage from the premises shortly
A-0359-23 20 after the incident, reviewed its contents, and confirmed that it accurately
depicted the events without alteration. Although minor discrepancies were
noted with respect to the timestamp and we acknowledge the officer reviewed
only portions of the footage, there was no allegation nor evidence presented of
tampering or substitution. Similarly, Officer Faltz confirmed the video depicted
the relevant location at the pertinent time. Therefore, there is sufficient evidence
to establish the reliability of the video as authentic. Accordingly, the trial court
had a sound basis to conclude that the State made a prima facie showing of
authenticity. Any remaining questions concerning the completeness or accuracy
of the evidence were properly left to the jury's assessment of its weight and
credibility.
D.
Defendant argues his motion for judgment of acquittal should have been
granted because "the three videos . . . and the screen-shots . . . should not have
been admitted, and because there was no other evidence identifying [defendant]
as the shooter." We disagree.
In evaluating his contention, we employ the standard established by the
New Jersey Supreme Court in State v. Reyes, 50 N.J. 454, 458-59 (1967). A
judgment of acquittal should be denied if "giving the State the benefit of all its
A-0359-23 21 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." Ibid. A judgment of acquittal is proper only "if
the evidence is insufficient to warrant a conviction." R. 3:18-1. A trial court
considering a motion for a judgment of acquittal must "not [be] concerned with
the worth, nature, or extent (beyond a scintilla) of the evidence, but only with
its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J.
462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div.
1974)). We review a trial judge's decision on a motion for a judgment of
acquittal without deference and de novo. State v. Lodzinski, 249 N.J. 116, 145
(2021); State v. Williams, 218 N.J. 576, 593-94 (2014).
Applying this standard, the surveillance video reveals an individual with
a distinctive tattoo holding a firearm both outside the bodega and then bringing
it back inside the bodega following the shooting. Although the footage does not
capture the shooting itself, it depicts the individual with the neck tattoo pointing
a gun at the victim's face. The two parties then move out of the camera's view,
and when the victim reappears on screen, he is seen clutching his face. Under
Reyes, we must view the evidence, and any inferences drawn therefrom, in the
light most favorable to the State. 50 N.J. at 458-59. We are satisfied the State
A-0359-23 22 met its burden to establish "a reasonable jury could find guilt of the charge
beyond a reasonable doubt." Ibid. Accordingly, we discern no error in the trial
court's decision to deny defendant's motion.
E.
Finally, we are not persuaded by defendant's argument the prosecutor
made improper comments about the evidence to the jury in his summation. For
the first time on appeal, defendant argues the prosecutor's two references to the
victim providing a "statement" to Detective Brown and the use of the word
"fled" were improper comments on the evidence made to insinuate defendant's
guilt.
First, we note defendant did not object to these comments at trial.
Therefore, we review them for plain error. Singh, 245 N.J. at 13.
Second, prosecutors "may not advance improper arguments." State v.
Lazo, 209 N.J. 9, 29 (2012). "It is as much [the prosecutor's] duty to refrain
from improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one." State v. Frost, 158 N.J.
76, 83 (1999) (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). Nevertheless,
"prosecutors in criminal cases are expected to make vigorous and forceful
closing arguments to juries" and are therefore "afforded considerable leeway in
A-0359-23 23 closing arguments as long as their comments are reasonably related to the scope
of the evidence presented." Id. at 82. In other words, there is no error as long
as the prosecutor "stays within the evidence and the legitimate inferences
therefrom." State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry,
52 N.J. 413, 437 (1968)).
We discern no impropriety in the prosecutor's remarks, which constitute
permissible argument based on legitimate inferences drawn from the evidence
presented. The prosecutor's reference to Detective Brown's statements, without
any additional substantive detail about them, was permissible. In addition to
illustrating the standard investigatory procedures adopted by Detective Brown
following the shooting, they were also provided in response to defendant's
accusation that the police conducted a "sloppy" investigation. By making these
assertions, defense counsel opened the door for the State to reiterate the nature
and scope of the police investigation, including the fact that witnesses were
interviewed. See Branch, 182 N.J. at 532 (holding that a defendant who "opens
the door by flagrantly and falsely suggesting that a police officer acted
arbitrarily" may permit the officer to dispel that false impression, even if some
prejudice to the defendant may result).
A-0359-23 24 Similarly, we are satisfied the prosecutor's use of the term "fled" did not
impermissibly sway the jury. The jury was certainly free to consider the actions
of defendant in light of the video and what might be considered to be a different
interpretation of his actions. Therefore, we are not persuaded that the
prosecutor's comments had "a clear capacity to bring about an unjust result."
State v. Johnson, 31 N.J. 489, 510 (1960).
Affirmed.
A-0359-23 25