NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0432-23
STATE OF NEW JERSEY, Plaintiff-Respondent,
v. ALVIN J. WYATT,
Defendant-Appellant.
_______________________
Submitted March 25, 2026 – Decided August 28, 2026 Before Judges Currier, Smith and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 20-02-0229.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Jennifer Davenport, Attorney General, attorney for respondent (John J. Santoliquido, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
After a jury convicted him of murder, attempted murder and weapons charges, defendant Alvin J. Wyatt appeals. Defendant argues he was denied a fair trial due to: (1) prosecutorial misconduct during cross-examination regarding his post-arrest silence; (2) the trial court's violation of Ibn Abdullah's Fifth Amendment privilege against self-incrimination; and (3) the trial court's abuse of discretion in admitting body-worn-camera (BWC) footage under N.J.R.E. 403. Further, defendant argues his prison sentence of seventy years was excessive.
We affirm for the reasons which follow.
I.
A.
On November 15, 2019, Pleasantville High School hosted a high school football playoff game against Camden High School. The event was attended by hundreds of spectators, including many families and children. Among those present were ten-year-old M.T., who attended with his mother Angela Tennant; C.G., a fifteen-year-old high school student; Ibn Abdullah and his cousin Bilall Lewis; and defendant, joined by his cousin Shahid Dixon. 1
1 To protect their privacy interests, we use initials for two of the victims, who were juveniles at the time of the incident that is the subject of this appeal. R. 1:38-3.
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During the second half of the game, a man, later identified as defendant, appeared at the bottom of the bleachers. Eyewitness accounts described defendant as a Black male wearing all black, with a hood up, and standing two rows in front of some spectators. Without warning, defendant drew a handgun and began firing into the crowd, aiming at Ibn Abdullah. Witnesses, including Tatiana Granger, saw the shooter pull out a gun and fire approximately six to eight shots.
Angela Tennant heard the gunshots coming from her left and immediately told her daughter to run. She then turned to M.T., who was sitting motionless with his hands in his pockets and glassy eyes; he had been struck by a bullet in the neck and showed no signs of life. Paramedics and firefighters performed CPR on M.T. in the ambulance, but he died from the gunshot wound, which entered the front right of his neck and exited the back left, fracturing his cervical vertebrae and damaging his vertebral artery.
C.G., who was also in the bleachers, was struck multiple times in the right arm as he attempted to flee from the gunfire.
Ibn Abdullah was shot in the torso and spine, resulting in permanent paralysis and confinement to a wheelchair. His left arm was also fractured from the shooting. At trial, Abdullah testified he attended the game but did not recall
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who accompanied him or how he traveled there. He stated he did not remember the events of the night or whether he brought a gun to the game. Abdullah confirmed he previously pled guilty to being a certain person not to possess a weapon on November 15, 2019, and to second-degree aggravated assault for shooting at defendant on October 28, 2019. After being shown a transcript of his plea, he acknowledged having the gun in his waistband but could not recall taking it out. He testified he did not see who shot him.
Bilall Lewis, Abdullah’s cousin, was standing next to him and heard two gunshots, however he did not see the shooter. Lewis noticed a gun in Abdullah's waistband while the emergency medical technicians (EMTs) were helping Abdullah. Prior to Lewis seeing the gun in the waistband, he did not know Abdullah had a gun and did not see him take one out during the game.
After the shooting, defendant ran from the bleachers, fleeing toward the tennis courts and the exit on the visitor’s side of the field. Officer JonMarshall Robinson, of the Atlantic County Prosecutor's Office (ACPO), was providing security at the game and responded to the gunfire. A spectator provided Officer Robinson with a description of the shooter, a man wearing a black jacket and gray sweatpants. Officer Robinson then saw a man matching that description running from the bleachers. Robinson pursued and apprehended the suspect,
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later identified as defendant, near the tennis courts. When stopped, defendant questioned his detention, claiming he ran because he heard gunshots. He gave the officers a false name, "Jamal Spellman."
EMTs and police officers rushed to the bleachers to tend to the shooting victims and secure the area. Officer Michael Gamad of the Pleasantville Police Department (PPD), assisting the EMTs, discovered a handgun tucked into Abdullah’s waistband while searching for bullet wounds. Abdullah, who was being treated at the scene of the shooting, repeatedly told Officer Juan Morillo of the PPD that defendant was the shooter. BWC footage from several officers captured these events, including Abdullah’s on-scene identification of defendant and the discovery of the gun.
While securing the scene, PPD Lieutenant Brandon Stocks recovered a 9mm handgun under the ramp leading to the bleachers. Sergeant David Gazzara of the ACPO further found three shell casings in the vicinity of the victims. Three bullets were removed from Abdullah at the hospital, and a bullet fragment was recovered from M.T.’s neck during autopsy. Ballistics analysis revealed the shell casings and bullets were fired from the recovered handgun.
A television cameraman, Alexander Cohen, captured the shooting on video while filming football highlights for a local news station. The video
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showed defendant, dressed in a black hooded sweatshirt and gray sweatpants, firing a handgun at Abdullah from close range at the bottom of the bleachers. Abdullah is seen sprawled on the bleachers, his arms flailing as he is struck by bullets.
Shahid Dixon, defendant's cousin, testified he attended the game and paid for defendant's ticket. Dixon testified he did not see the shooter but gave a prior statement to police suggesting he thought Abdullah started shooting because he saw defendant. Tyrell Dorn, another witness, testified he gave Dixon a ride to the game and saw defendant at the concession stand.
Electing to testify at trial, defendant stated that, on October 28, 2019, Abdullah had tried to kill him by shooting at him. During this same shooting event, Abdullah killed defendant's cousin. On November 15, 2019, defendant claimed he went to the football game, encountered Abdullah, who gave him a stern look and threatened to shoot him in the head. Defendant testified he saw Abdullah reach for his waistband and grab his gun. Defendant stated that he heard a gunshot, which prompted him to fire six or seven shots at Abdullah while running away, claiming he was scared for his life. Defendant admitted possessing the firearm found under the ramp and that it was loaded with hollow- point bullets. He stated he dropped the gun under the bleachers as he fled.
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B.
On February 4, 2020, the Atlantic County grand jury returned Indictment No. 20-02-0229, charging defendant with: second degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1) (count one); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4(a)(1) (count two); first degree attempted murder of Ibn Abdullah, N.J.S.A. 2C:5- 1(a)(1), 2C:11-3(a)(1) (count three); first degree attempted murder of C.G., N.J.S.A. 2C:5-1(a)(1), 2C:11-3(a)(1) (count four); first degree murder of M.T., N.J.S.A. 2C:11-3(a)(1) (count five); second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count six).
Defendant's trial occurred on non-consecutive days between July 19, 2023, and July 27, 2023.
At trial, Ibn Abdullah initially declined to testify and asserted his Fifth Amendment rights when the State called him as a witness. Abdullah claimed the reason for his unwillingness to testify was his fear of prosecution for the murder of defendant's cousin on October 28, 2019. The trial court found Abdullah's Fifth Amendment rights were not implicated and compelled him to testify. The court found "the crime that [Abdullah's] concerned about [he] already pled [to] and g[a]ve[] a factual basis. So [Abdullah had] already been
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found guilty of that. So[,] there is nothing that [Abdullah could] say [in court] today that’s going to implicate [him] in any further charges[] or would be double jeopardy."
As stated, Abdullah eventually testified that he pled guilty to second-
degree aggravated assault for shooting at defendant, with a recommended sentence of four years, for the events of October 28, 2019. Abdullah also testified to pleading guilty to possession of a handgun on November 15, 2019.
The court also heard Rule 403 arguments regarding police BWC recordings. The trial court admitted the BWC recordings into evidence finding that the footage corroborated eyewitness testimony and that its probative value outweighed any prejudice to defendant.
On July 27, 2023, a jury unanimously found defendant guilty of counts one through five. 2 After trial, defendant made alternative motions, seeking a judgment of acquittal or a new trial. On September 11, 2023, the trial court denied both applications, finding "there was overwhelming evidence to support the jury's verdict," and rejecting the defense argument "that no reasonable jury could have returned a verdict" against defendant.
2 For count six, defendant waived a jury trial, and the court found defendant guilty.
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At sentencing, the trial court conducted an aggravating and mitigating factor analysis. N.J.S.A. 2C:44-1(a) to (b). The trial court found no basis to warrant consideration of aggravating factors one and two. N.J.S.A. 2C:44- 1(a)(1) to (2). The court found aggravating factor three applied and gave it great weight, finding "[t]here is a very substantial risk defendant will commit another offense if released." N.J.S.A. 2C:44-1(a)(3). The court found aggravating factor six applied and gave it great weight as well, noting defendant's five prior known convictions and that he was now convicted of "the most serious offense" under the New Jersey criminal code, murder. N.J.S.A. 2C:44-1(a)(6). The trial court next found aggravating factor nine applied and gave it great weight, noting defendant's "crimes were senseless, heinous and calculated" and that "[o]nly a substantial commitment to state prison will serve as an effective deterrent to th[e] defendant." N.J.S.A. 2C:44-1(a)(9).
Turning to the mitigating factors, the court found none of them applied, N.J.S.A. 2C:44-1(b), specifically, addressing defendant's requests for mitigating factors three, four, and five. N.J.S.A. 2C:44-1(b)(3) to (5).
The trial court denied the State's motion for extended terms on defendant's convictions, finding they were not "necessary to reach the goal of an adequate and just sentence." The trial court considered State v. Yarbough, 100 N.J. 627
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(1985), and found consecutive sentences appropriate for counts three, four and five, based on the Yarbough factors. Furthermore, while the court did not explicitly cite State v. Torres, 246 N.J. 246, 267-68 (2021), the court considered the overall fairness and the real time consequences of defendant's sentence in its statement of reasons supporting the sentence.
The court sentenced defendant to: forty-five years' imprisonment for the murder of M.T., with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA) 3 (count five); fifteen years' imprisonment for the attempted murder of Ibn Abdullah, subject to NERA (count three); ten years' imprisonment for the attempted murder of C.G., subject to NERA (count four); ten years' imprisonment for unlawful possession of a handgun (count one); and five years for certain persons not to have a weapon (count six). Counts one and six were ordered to be served concurrently with count five; counts three and four were to be served consecutive to count five and concurrently with counts one and six; and count two, second degree possession of a weapon for an unlawful purpose, was merged with count five.
On appeal, defendant argues:
POINT I – DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO PROSECUTORIAL
3 N.J.S.A. 2C:43-7.2.
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MISCONDUCT WHERE THE PROSECUTOR'S CROSS-EXAMINATION FOISTED UPON DEFENDANT THE BURDEN TO COME FORWARD WITH EVIDENCE OF HIS INNOCENCE. (Not Raised Below).
POINT II – DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ERRED IN ORDERING IBN ABDULLAH TO TESTIFY DESPITE HIS HAVING ASSERTED HIS RIGHT TO REMAIN SILENT.
POINT III – DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S ERROR IN ALLOWING INTO EVIDENCE UNDULY PREJUDICIAL BODYCAM FOOTAGE THAT WAS BLOODY, VIOLENT, AND HAD NO EVIDENTIARY VALUE IN VIOLATION OF N.J.R.E. 403.
POINT IV – THE SENTENCE OF SEVENTY YEARS IN PRISON SUBJECT TO [NERA] WAS MANIFESTLY EXCESSIVE.
II.
We consider the relevant standards of review.
A.
We will reverse a conviction and grant a new trial for prosecutorial misconduct, "[o]nly when the prosecutor's conduct . . . so 'substantially prejudice[s] the defendant's fundamental right to have the jury fairly evaluate
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the merits of his defense . . . .'" State v. Garcia, 245 N.J. 412, 436 (2021) (second alteration in original) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).
B.
We defer to a trial court's evidentiary rulings, absent an abuse of discretion. State v. Burney, 255 N.J. 1, 20 (2023). We ask if "a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. Taylor, 261 N.J. 440, 449 (2025) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We "will not substitute [our] judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes 'clear error in judgment.'" State v. Garcia, 245 N.J. at 430 (quoting State v. Medina, 242 N.J. 397, 412 (2020)). "A trial court's 'discretion is abused when relevant evidence offered . . . and necessary for a fair trial is kept from the jury.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530, 544-55 (2016)).
However, "we owe no deference to a decision made without explanation or a decision made without considering the applicable factors." Matter of D.L.B., 468 N.J. Super. 397, 420 (App. Div. 2021).
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C.
We review a defendant's sentence "in accordance with a deferential standard." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Fuentes, 217 N.J. 57, 70 (2014)). We "must not substitute [our] judgment for that of the sentencing court." State v. Rivera, 249 N.J. 285, 297 (2021) (quoting Fuentes, 217 N.J. at 70). Therefore, we affirm a defendant's sentence, unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. R.A.M., 482 N.J. Super. 439, 456 (App. Div.
2025) (alteration in original) (quoting Fuentes, 217 N.J.
at 70) (internal quotation marks omitted).]
III.
A.
Defendant initially contends he was denied the right to a fair trial due to prosecutorial misconduct when the State questioned him on cross-examination about his post-arrest silence regarding: an incident on October 28, 2019, involving defendant and Abdullah; and defendant's claim of self-defense against Abdullah on November 15, 2019. Defendant asserts the State used his post-
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arrest silence on November 15, 2019, to undermine his credibility and question the validity of his self-defense claim. We disagree.
We consider the relevant legal principles.
Since defendant did not object to the prosecutor's cross-examination at trial, we review for plain error. State v. Clark, 251 N.J. 266, 286-87 (2022); R. 2:10-2. A plain error is one that is "clearly capable of producing an unjust result." R.A.M., 482 N.J. Super. at 451 (quoting R. 2:10-2). However, we only reverse plain error "where the possibility of an injustice is real and sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. (quoting State v. Alessi, 240 N.J. 501, 527 (2020)) (internal quotation marks omitted).
In determining "whether an alleged error rises to the level of plain error,"
we must evaluate it "in light of the overall strength of the State's case." Ibid. (quoting Clark, 251 N.J. at 287). This "provides a strong incentive for counsel to interpose a timely objection, enabling the trial court to forestall or correct a potential error." Ibid. (quoting State v. Burnham, 474 N.J. Super. 226, 230 (App. Div. 2020)). "In general, when counsel does not make a timely objection at trial, it is a sign 'that defense counsel did not believe the remarks were
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prejudicial' when they were made." State v. Pressley, 232 N.J. 587, 594 (2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)).
We evaluate defendant's constitutional claims.
Under the Fifth and Fourteenth Amendments, a defendant is guaranteed the right that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Clark, 251 N.J. at 291 (alteration in original) (quoting U.S. Const. amend. V). While the New Jersey Constitution does not include the federal equivalent, the right is "deeply rooted in New Jersey common law and is codified by statute and the Rules of Evidence." Ibid. (citing N.J.S.A. 2A:84A- 19; N.J.R.E. 503).
Our Supreme Court has held that this right means "a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not." State v. Deatore, 70 N.J. 100, 115 (1976); see State v. Black, 380 N.J. Super. 581, 593 (App. Div. 2005). Additionally, the right against self-incrimination "does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005). Thus, we are required to reverse a defendant's convictions
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when the prosecution uses a defendant's silence as evidence of his guilt. Id. at 573-74; Deatore, 70 N.J. at 114.
However, "when [a] defendant waive[s] his right to remain silent, [takes]
the witness stand in his own defense, and for the first time sa[ys] that the shooting had been accidental, he thereby subject[s] himself to cross-examination as to the credibility of his story." State v. Burt, 59 N.J. 156, 157 (1971).
In Burt, cross-examination of the defendant was "not a true case of silence in police custody as to an exculpatory story, but rather one of conduct, albeit non-action, after the charged crime [was] inconsistent with defendant's story at trial." Deatore, 70 N.J. at 118. Following this logic, our Supreme Court in Deatore concluded such cross-examination does not "run[] into . . . the difficulties of the self-incrimination privilege or of the law of evidence and is entirely proper.” Ibid.
We review the well-settled law regarding prosecutorial misconduct.
We "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Williams, 244 N.J. 592, 608 (2021) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Factors we consider in conducting such an analysis are: "(1) whether defense counsel made timely and proper objections to the improper
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remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (quoting Frost, 158 N.J. at 83).
"'[E]ven when a prosecutor's remarks stray over the line of permissible commentary, our inquiry does not end. . . .' Rather, we must weigh 'the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial . . . .'" Ibid. (internal citations omitted) (first quoting State v. McNeil-Thomas, 238 N.J. 256, 275 (2019); and then quoting State v. Wakefield, 190 N.J. 397, 437 (2007)).
During cross-examination the following colloquy occurred:
[PROSECUTION:] That shooting from October 28th that you said Ibn shot at you –
[DEFENDANT:] Yes.
[PROSECUTION:] – did you tell the police that?
[DEFENDANT:] No.
Later, the State further cross-examined defendant regarding his silence at the November 15, 2019 shooting:
[PROSECUTION:] Okay. Did you find the first police officer and say, "Look, I just shot someone in self [-]defense?"
[DEFENDANT:] No, I didn't say anything.
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[PROSECUTION:] I'm sorry?
[DEFENDANT:] I didn't say anything when I was [in]
contact with the first police officer.
[PROSECUTION:] Okay. Did you find the police officer – "Hey, someone, you know, was shot up there?"
[DEFENDANT:] No.
Defendant's attorney objected after this line of questioning but immediately withdrew the objection. The State then continued cross-examining defendant:
[PROSECUTION:] Okay. But if you didn't want to get caught, then you would have run to the first police officer and said, "Hey, I had to shoot this guy in self [-]defense," right?
[DEFENDANT:] No, I did not say that.
....
[PROSECUTION:] When the police officer stopped you, right –
[DEFENDANT:] Yes.
[PROSECUTION:] – did you tell him that you shot Ibn Abdullah in self[-]defense?
[DEFENDANT:] No.
During summation, the prosecutor commented about defendant's silence, stating
If he had chosen to go to the police and let them do their job when Ibn Abdullah shot at him, we might not be here. But he didn't, he told you, "I knew Ibn shot
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at me, I didn't go to the police, I didn't tell them." Why?
Because he was going to get his own revenge, wasn't he?
We conclude the prosecutor's cross-examination was proper and did not violate defendant's constitutional rights. The prosecutor's summation remarks were not about defendant's silence post-arrest. Rather the prosecutor argued that, if the shooting were in self-defense, as defendant contended, then a reasonable action by defendant would be to tell the police. We conclude, as in Burt, that "[t]his was a legitimate argument for the State to make." 107 N.J. Super. at 393.
The State commented on defendant's post-arrest conduct only after defendant elected to testify. Defendant testified the shooting was in self- defense. He was subject to cross-examination of the credibility of his version of events. On cross, the State probed the inconsistencies between defendant's exculpatory story and his actions following the shooting. Counsel did not object to this line of questioning at the time of trial. It follows that "'defense counsel did not believe the remarks were prejudicial' when they were made." Pressley, 232 N.J. at 594 (quoting Echols, 199 N.J. at 360).
The overwhelming evidence at trial included BWC footage from responding police, as well as live testimony from police and spectators attending
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the game. None of the evidence presented at trial corroborated defendant's self- defense argument.
Our careful review of the record through the lens of our "silence"
jurisprudence reveals no prosecutorial misconduct. We conclude there was no conduct clearly capable of producing an unjust result, considering the overall strength of the State's case.
B.
We turn to defendant's argument that the trial court erred in determining Abdullah, a witness to the shooting and one of its victims, did not have the right to remain silent, violating his Fifth Amendment privilege against self- incrimination by forcing him to testify. We conclude defendant lacks standing to raise this argument and briefly comment.
The privilege against self-incrimination provided by the Fifth Amendment "applies only when the accused is compelled to make a testimonial communication that is incriminating." State v. Knight, 256 N.J. 404, 417 (2024) (quoting Fisher v. United States, 425 U.S. 391, 408 (1976)). The self- incrimination privilege, both New Jersey and federal, is "personal to the defendant and cannot be asserted by or on behalf of third parties." Ibid. This has been a longstanding notion in New Jersey. See State v. Baum, 199 N.J. 407,
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417 (2009) (holding "we do not . . . accord standing to a third party . . . to vicariously assert that another's right against self-incrimination has been violated.").
The federal and state jurisprudence surrounding the self-incrimination privilege is crystal clear. The privilege is completely personal and cannot be vicariously asserted by a third party. Defendant has no standing to assert this claim on behalf of Abdullah, and this claim fails on appeal.
C.
Defendant next argues the trial court abused its discretion in admitting into evidence BWC footage of Abdullah lying in the bleachers being treated for gunshot wounds. While being treated for his injuries, Abdullah can be heard on the BWC footage repeatedly identifying defendant by name as the person who shot him. Defendant asserts the footage was "highly inflammatory, cumulative and unnecessary to establish the prosecution’s case." Further, defendant argues the BWC footage of Abdullah violated Rule 403, asserting the undue prejudice of the footage substantially outweighed its probative value. We disagree.
Rule 403 states:
Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of:
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(a) Undue prejudice, confusion of issues, or misleading the jury; or
(b) Undue delay, waste of time, or needless presentation of cumulative evidence.
Our Supreme Court has held, under Rule 403, "photographs of victims are admissible unless defendant can show that the trial court palpably abused its discretion." State v. Moore, 113 N.J. 239, 295 (1988). We have consistently given "wide discretion" to the trial court's admission or exclusion of such evidence. Id. at 295-96 (citing State v. Carter, 91 N.J. 86, 106 (1982)); State v. Thompson, 59 N.J. 396, 419-20 (1971) (upholding the admission of a photograph showing the victim lying on her back with large bloodstains nearby); State v. Royster, 57 N.J. 472, 485, cert. den., 404 U.S. 910 (1971) (finding photograph of a victim "bare from the groin up and showed the point of entrance of two of the bullets which struck her," admissible since it had probative value and was not unduly prejudicial). We note "[t]he power of a video of contemporaneously recorded events at the crime scene can hardly be disputed." Garcia, 245 N.J. at 431. The use of videos, such as BWC footage, "enhance[s] a judge or juror's assessment of credibility by providing a more complete picture of what occurred." Id. at 431-32 (alteration in original) (quoting State v. Cole, 229 N.J. 430, 450-51 (2017)).
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While analyzing the admissibility of BWC footage from multiple police officers, the trial court made detailed findings:
[A]ll of the body cam, it all appears to be relevant and I don't think there's any dispute, in the court's mind, that it's relevant. All of the body cams show[] from different angles[,] . . . what was occurring as it was occurring, the information that the officers were obtaining. And there is an issue in this case that's been raised by the defense as to one of the victims, the adult victim, Mr. Abdullah, having a gun on him. And from what I can tell from questioning from the defense as well as the opening statements is it's essentially the defense's allegations that it was Mr. Abdullah that started this and had the gun.
So clearly that's relevant. And that scene in the video that I reviewed as to the body cam. So[,] it is relevant. . . . Clearly the jury seeing the evidence as it was happening, it's immediately after the incident.
Again, I've already addressed the issue as to the gun and how it was found and where it was. The statements made by the victim. Clearly hearing somebody else say, the victim told me who shot me or whatever that witness would say the victim, Mr. Abdullah said, is not the same impact as the jury hearing it from the victim as it's happening with the immediacy already there, under what circumstances he said it and how he said it so that they can assess credibility of all of the witnesses.
So[,] I think it's clearly relevant. I don't think it's so highly prejudicial to be excluded.
....
And again, we've heard witnesses testify to what was happening and this just corroborates what it is that
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all of those witnesses . . . have indicated as happening, from my view of the video.
So[,] at this time for those reasons I'm going to allow the State to introduce those portions that have been shown to the court . . . .
We defer to the trial court's sound Rule 403 analysis, finding the evidence clearly relevant, probative and not prejudicial. We conclude the court did not abuse its discretion in admitting the officers' BWC footage from the shooting.
D.
We finally consider defendant's argument that his seventy-year aggregate sentence was excessive. Defendant's argument is two-fold: (1) the trial court abused its discretion in not considering mitigating factors three, four and five, N.J.S.A. 2C:44-1(b)(3) to (5); and (2) the trial court misapplied Yarbough in ordering defendant's ten-year sentence for the attempted murder of C.G. be served consecutive to his fifteen year sentence for the attempted murder of Ibn Abdullah, which in turn is to be served consecutive to defendant's forty-five- year sentence for the murder of M.T. We are unpersuaded.
i.
Defendant first asserts the trial court failed to consider mitigating factors that "were clearly present," leading to its imposition of a manifestly excessive sentence. We find the argument without merit and comment briefly.
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The court analyzed the mitigating factors and made findings:
With respect to mitigating factor three, the defendant acted under a strong provocation, the defendant testified and the jury rejected the defendant's claim that he was provoked or that he was protecting himself, nor did they accept that he acted in the heat of passion under a strong provocation. The defendant's sole purpose in going to the game that night was to kill Ibn Abdullah. The eight bullets that he fired into the crowd were fueled by purposeful and predatory acts to seek revenge.
Mitigating factor four, there were substantial grounds tending to excuse or justify the defendant's conduct though failing to establish a defense. Again, this mitigating factor is rejected by the Court.
There is simply no excuse for the defendant to bring a gun, a loaded gun to a high school football game and fire it into a crowd of spectators who were peacefully watching a community event. Nothing excused the taking of [M.T.'s] life or the physical or psychological trauma suffered by Ibn Abdullah and teenager [C.G.]
With respect to mitigating factor five, the victim of the defendant's conduct induced or facilitated its commission. There again is no evidence that any of the victims induced or facilitated the defendant's violence and callous actions. The jury heard from the defendant himself and rejected any such claims as well.
The evidence adduced against defendant at trial was overwhelming. It included eyewitness testimony and video evidence refuting defendant's self- defense argument. Nothing in the record showed substantial provocation A-0432-23
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towards defendant. Neither Abdullah nor the other victims facilitated defendant's actions, nor does the record show any other substantial grounds to justify defendant's actions. We discern no abuse of discretion by the trial court in finding mitigating factors three, four and five did not apply, nor do we find error by the court in failing to consider the other mitigating factors.
ii.
Defendant asserts the trial court abused its discretion by imposing consecutive sentences. Defendant posits the trial court misapplied the concept of "individual justice." Further, defendant asserts the court only made findings on the Yarbough "multiple victims" factor, and that these findings were insufficient to support consecutive sentences. We are unconvinced in large part because our Supreme Court has concluded "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries" are those in which consecutive sentences should be imposed. State v. Carey, 168 N.J. 413, 428 (2001).
Tragically, we confront precisely such circumstances in the matter before us.
During sentencing, "'when determining whether consecutive sentences are warranted,' a court is required 'to perform the well-known assessment of specific
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criteria' commonly referred to as the Yarbough factors." State v. Vanderee, 476 N.J. Super. 214, 238 (App. Div. 2023) (quoting State v. Randolph, 210 N.J. 330, 353 (2012)). The sentencing court should "place on the record its statement of reasons for the decision to impose consecutive sentences, which . . . should focus 'on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted.'" Torres, 246 N.J. at 267-68 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
Yarbough states:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
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(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors; [and]
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .
[100 N.J. at 643-44.]
The trial court placed a comprehensive and cogent statement of reasons on the record at sentencing. It found:
There are in this case three separate victims, each injured by an independent action of the defendant.
There can be no free crimes. The defendant's crimes include the murder of [M.T.] and the attempted murder of [C.G.] and Ibn Abdullah. The defendant's own admission of trial leaves no doubt that his objective was to murder Ibn Abdullah. Two of the defendant's three crimes were completely independent of this objective.
Defendant's crimes involve separate acts of violence.
The video shows defendant beginning to shoot as he approached his intended victim. The video and the defendant's own testimony reveal that defendant's intended target was already down at his feet as defendant continued to fire.
Important for this factor, defendant then began to flee and tried to escape what he had done. As defendant was fleeing, he continued to fire into the crowd. The only action that was required for this defendant to meet his objective goal was to fire, walk up and fire at Ibn
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Abdullah, yet he continued to fire as he approached and as he left.
Defendant planned for this event, waiting for the opportunity to execute his target. He chose a crowded, youth community event to effectuate his assassination. He injured three separate victims after pointing a gun into a crowd and pulling the trigger eight separate times. The planning and execution of his crime is evidence defendant's behavior was certainly not aberrant. This was a planned, premeditated act of violence.
Defendant's crimes involved again three victims, two of which were completely innocent and even unknown to the defendant. They were innocent bystanders who became the defendant's victims to serve his revenge on another victim. They deserve their own separate and individualized justice. There are three separate victims against which defendant has committed his crimes. Again, one of those victims was injured, one is paralyzed, and one little boy paid with his life. Defendant must be punished for each of those crimes.
So[,] in imposing the consecutive sentence, the [c]ourt has considered the overall fairness of the sentence and the real time consequences of the sentence. Again, it's been held that crimes involving again the multiple deaths or victims who have sustained serious bodily injury present especially suitable circumstances for the imposition of the consecutive sentence.
In discussing multiple victims, factors of the Court in State v. Carey, 168 N.J. 413 (2001), indicate that it is entitled to great weight and should ordinarily result in the imposition of at least two consecutive
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terms and again the no free crimes tilt in the direction of consecutive sentences.
In terms of the gravity of harm inflicted, again, one of them suffered the worst consequences imaginable. [M.T.] lost his life. He was only [ten]
years old. Ibn Abdullah faces life in a wheelchair.
Certainly[,] any sense of justice would require that the offenses involving Ibn Abdullah should receive a sentence consecutive to the sentence imposed for the death of [M.T.] Although the injuries suffered by [C.G.] in the scheme of things were less significant, he is also a victim and is entitled to his own justice. In this [c]ourt's view, the sentence imposed for the offense against him also must be consecutive in order to accomplish accountability for the entire gravamen of the results of defendant's conduct.
There is a need to deter such dangerous conduct.
This conduct did not just impact his intended victim but innocent bystanders. Accordingly, consecutive sentences will be imposed on counts three, four, and five.
....
The [c]ourt has . . . considered the overall fairness of the sentence and the real time consequences of the sentence and finds it to be fair. I've considered the defendant's age and his appeal to the [c]ourt and the [c]ourt has not . . . grant[ed] the extended term.
We agree with the trial court's detailed and thoughtful Yarbough analysis, which carefully considered each relevant factor before imposing three consecutive sentences for defendant's shooting of three separate victims. We
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also conclude that the trial court's extensive findings, placed on the record at sentencing, reflect a proper "acknowledge[ment] and explan[ation] [of] the fairness of the overall sentence imposed on . . . defendant . . . ." Torres, 246 N.J. at 267-68.
In sum, we conclude the trial court did not abuse its discretion in its mitigating factor analysis, nor did the trial court's imposition of consecutive terms violate Yarbough, or for that matter, Torres.
Defendant's seventy-year aggregate sentence, after he was convicted of murdering one victim, paralyzing another, and severely injuring a third when he fired his pistol into a crowd at a high school football game, does not shock our judicial conscience.
Affirmed.
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