State of New Jersey v. Gregory A. Coombs

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1006-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY A. COOMBS,

Defendant-Appellant. _______________________

Argued May 19, 2026 – Decided July 29, 2026

Before Judges Sumners, Susswein and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 20-01- 0103.

Stephen W. Kirsch, Designated Counsel, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Stephen W. Kirsch, on the brief).

Kimberly P. Will, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Kimberly P. Will, of counsel and on the briefs). Appellant filed a supplemental brief on appellant's behalf.

Defendant Gregory A. Coombs appeals his March 10, 2023 jury trial

conviction for first-degree conspiracy to commit knowing/purposeful murder

arising from the 2019 fatal shooting of Derrick Harris. The State alleged that

defendant, along with codefendants Cleve Lewis 1 and Deontray Gross,

conspired to kill Harris for financial gain. Gross entered into a cooperation

agreement with the State and gave evidence against defendant and Lewis at their

joint trial. Gross testified that he, defendant, and Lewis planned to go to Harris's

apartment and shoot him. Lewis was the shooter, and defendant drove the

getaway vehicle. Defendant was ultimately convicted of first-degree conspiracy

to commit murder. He was acquitted of first-degree murder and second-degree

burglary. He was sentenced to thirty-six years in prison.

On appeal, defendant argues that the trial court erred in: (1) instructing

the jury on conspiracy to commit murder; (2) failing to grant his motion to

suppress evidence obtained following a stop of his motor vehicle; (3) admitting

1 Defendant and Lewis were tried together. Lewis challenges his jury trial conviction in a separate appeal, State v. Lewis, No. A-1007-23 (App. Div. July 29, 2026). Although there are overlapping issues, because defendant and Lewis make different arguments, we issue separate opinions. A-1006-23 2 global positioning system (GPS) geolocation evidence without expert testimony;

and (4) imposing sentence. After reviewing the record in light of the governing

legal principles, we affirm.

I.

We discern the following pertinent facts and procedural history from the

record.2

A. The Crime and Police Investigation

Shortly after midnight on November 7, 2019, police responded to the

Delsea Gardens Apartments in Millville to investigate a reported homicide at

the victim's apartment. Upon arrival, police observed a deceased African

American male, later identified as Harris, lying face down in a pool of blood a

few steps in from the front door of the unit. Police also observed several bullet

strikes.

Police encountered two adults in the apartment, Shante Brooks and

Rashan Rodgers, who were brought to the Millville police station to be

interviewed. Brooks, who was Harris's girlfriend and testified at the joint trial,

told police that she and Harris had a daughter and all three of them lived in the

2 Because our harmless error analysis requires us to evaluate the overall strength of the State's case, we recite the relevant facts elicited at trial in some detail. A-1006-23 3 apartment. She revealed that Harris was involved with "drugs" and had been

incarcerated in the past. She also stated that Gross was Harris's "best friend"

and had been to their apartment "several times."

Brooks said that she, Harris, their daughter, and Rodgers had been in the

unit since 5:00 p.m. on the night of the shooting. At approximately 8:00 p.m.,

there was a knock on their front door. No one was expecting visitors, so no one

answered the door.

A couple of hours later, at approximately 11:00 p.m., Brooks said that

there was a second knock on the door. Harris went downstairs to answer the

door, and Brooks stayed in the bedroom and looked out the window. The

window was directly over the front door, but because of an overhang, Brooks

could not see who was standing there. She did, however, observe that the person

was wearing Nike Foamposite sneakers. Brooks heard Harris open the door,

which was immediately followed by the sound of multiple gunshots.

After the shooting stopped, Brooks went halfway down the stairs to ensure

the shooter was no longer there. She saw Harris on the floor and went back

upstairs to contact her aunt and instruct her to call 9-1-1.

Because the Millville Police Department had remote access to the

surveillance system at Delsea Gardens, police were able to review footage while

A-1006-23 4 still on scene using their mobile devices. The footage—which was shown to the

jury at trial—showed two subjects, one wearing a jacket with a reflective stripe,

entering Delsea Gardens through a fence on the north side of the property and

walking to Harris's unit. One of the subjects then opened fire, and both were

seen fleeing back through the fence where they had entered and into a large,

black SUV.

After reviewing this footage, police canvassed the area and spoke to an

individual who resided next door to Delsea Gardens at the Millville Motor

Lodge. Based on the information provided by the witness, in addition to the

information already gathered from the footage, police began to look for a large,

black SUV, and specifically, a newer model SUV, possibly a Ford Expedition

or a Chevy Suburban.

Shortly thereafter, an officer reported that he was pursuing a vehicle that

matched that description—specifically, a black Ford Expedition that appeared

to be a newer model. After confirming the vehicle being followed was a newer

model, the officer was instructed by his superiors to pull the vehicle over. Two

males were inside. Defendant was the driver, and Gross was the passenger .

Having learned from Brooks that Gross was friends with Harris, police brought

both men to the Millville police station for interviews, and the vehicle was

A-1006-23 5 impounded for further examination.

Defendant's interview was recorded and played for the jury. During his

interview, defendant expressed concern about his vehicle. He explained that it

was a rental vehicle, and he was the only one who operated it. He said that prior

to being stopped, he was just driving around Vineland and Millville, drinking

and smoking. He did not know what time he picked up Gross or how long the

two of them were together. He acknowledged that he was at Delsea Gardens,

and that he noticed the significant police presence.

Back at Delsea Gardens, police seized multiple .40 caliber Smith &

Wesson casings and projectiles. They also observed and photographed a shoe

print in blood. They did not find any fingerprints.

Police also searched the SUV and collected several items, including an

Enterprise rental agreement, a black jacket, a latex glove, a cell phone, and

defendant's license. The latex glove, which was discolored, was found on the

passenger side of the vehicle in the front door pocket. Police also removed the

SUV's infotainment center, 3 which included a navigation system.

3 An infotainment center in a vehicle is a digital interface that combines information and entertainment functions. It typically includes features such as navigation, audio playback, communication, and smartphone integration, allowing drivers to access GPS directions, music, and phone calls easily through

A-1006-23 6 Both defendant and Gross were taken into custody, and police collected

their clothing as well as Gross's phone, checking it for incoming and outgoing

calls, text messages, and Wi-Fi network connections. Police discovered that at

the time of the incident, Gross's phone had connected to Harris's Wi-Fi network.

Police also examined data collected from the infotainment system that was

in the SUV. With this data, investigators were able to determine the route of the

SUV around the time of the shooting. The navigation data indicated that the

SUV turned into Delsea Gardens at 11:09 p.m. and left at 11:12 p.m. It then

turned into the Millville Motor Lodge and departed at 11:21 p.m. From there,

the SUV traveled to an apartment complex in Seabrook and arrived at 11:46 p.m.

It then travelled to the Vineland Village Apartments, arriving at 12:16 a.m. It

exited Vineland Village at 12:39 a.m., returned at 12:42 a.m., and then departed

for a second time at 12:47 a.m. At 1:10 a.m., the SUV returned to Delsea

Gardens. It left at 1:18 a.m., which was when police began to follow it.

Police also obtained defendant's and Gross's Facebook records, and

investigators discovered messages between Gross and Lewis from shortly before

the shooting. Specifically, around 7:00 p.m. on the evening of the incident,

a central display. Michell Erickson, What is the Infotainment System in a Car: Ultimate Guide, Car Awareness (July 21, 2025), https://carawareness.com/what- is-the-infotainment-system-in-a-car/. A-1006-23 7 Gross said that he wanted Lewis to drink with him, stating, "I'm out here. You

popping this bottle with me?" Lewis responded and told Gross to "pull up."

Police examined Lewis's public Facebook profile, and also obtained his

phone number and his address, which was the same as defendant's. On his

Facebook profile, investigators saw images of a sneaker collection which

appeared to include Nike Foamposite sneakers. Later, investigators discovered

this picture had been removed from Lewis's profile.

On December 5, 2019, police searched defendant's residence. Lewis was

present, and investigators also found a certificate in a bedroom bearing Lewis's

name, suggesting Lewis resided there. Police also found a press release relating

to Harris's murder in the kitchen.

While at defendant's residence, investigators also spoke with Gerrell

Black, who lived with defendant. She told investigators that defendant was her

child's father. She also confirmed that Lewis, who was defendant's cousin, lived

with her and defendant on occasion, and was living with them at the time of

Harris's murder.

Meanwhile, several items that were found in the SUV were sent for further

testing, including the jacket and latex glove. Both tested positive for blood.

While no particular DNA profile could be determined from the sample taken

A-1006-23 8 from the jacket, a DNA profile was obtained from the latex glove. Only Lewis

was a match.

Police also reviewed defendant's jail call logs from between November 7,

2019, and November 15, 2019, and discovered several calls placed to a phone

number associated with Lewis.

On December 17, 2019, Lewis was arrested and charged along with

defendant and Gross. At that time, his cell phone was seized and searched.

Police discovered a web search related to DNA on latex gloves. Police also

found a November 4, 2019, Facebook message from Lewis to defendant in which

Lewis stated that he had a new "toy."

B. Gross's Testimony

On February 19, 2020, Gross gave a formal cooperation interview to

members of the prosecutor's office, after which he pled guilty to conspiracy to

commit murder. Gross also testified at defendant and Lewis's joint trial. Gross

testified that he and Harris had known each other since they were kids and had

been "best friends." Gross would visit Harris at his apartment, and when he did

so, he would connect to his Wi-Fi.

Gross admitted that he and Harris were involved in criminal activity

together, and that in 2018, they broke into the home of a friend of theirs,

A-1006-23 9 "Chuck," and stole "almost a hundred thousand dollars." Gross believed that

Chuck knew he and Harris had stolen from him.

Gross was also friends with Lewis, as the two "grew up together," but

prior to the night of Harris's murder, Gross did not know defendant. Gross

confirmed that around the time of the incident, Lewis, who had previously been

living with his girlfriend, was staying with defendant because he and his

girlfriend were arguing.

On the day of the murder, Gross bought a bottle of liquor to celebrate a

family friend's release from prison, but that family friend was in Delaware, so

Gross contacted Lewis instead. He then went to defendant's house to meet with

Lewis. Defendant was there as well, and Gross testified that was the first time

he met defendant. Gross further testified that when he entered the house, there

were two guns on the kitchen table. As the three were drinking, defendant made

a comment indicating he was aware that Gross had stolen money from Chuck. 4

That statement gave Gross pause, because he had never met defendant before

and was unsure how he knew about the theft of Chuck's money. Gross had also

heard that Chuck had a bounty out on him and Harris.

4 Specifically, Gross testified that Coombs referred to Gross as "the one that hit the lick," meaning the one that "robbed somebody or came up on some money or whatever." A-1006-23 10 Gross stepped outside to think about how to leave, and defendant and

Lewis followed him outside. Lewis pointed a gun at Gross, and defendant told

Gross to do whatever Lewis said. Lewis then told Gross to get in defendant's

vehicle, which was a big, black, newer SUV.

Gross testified that defendant then drove himself, Gross, and Lewis to

Gross's house. Gross was instructed to go inside and change his shoes, which

were brightly colored, and he was told that if he continued to do as they said, he

would be okay. Gross then went inside, changed into green Nike Foamposite

sneakers, and grabbed clear gloves and drugs that he had stashed. In the SUV,

there was a conversation about what was going to happen next: the plan was for

Gross to knock on the door to Harris's house, Lewis to "handl[e] his business,"

and defendant to stay in the vehicle and be the driver. At the time, Gross

believed Lewis and defendant intended to rob Harris, and he was unable to

remember at what point he realized the plan was to shoot Harris.

After leaving his house, Gross, Lewis, and defendant drove to the motel

that was next door to Delsea Gardens. Gross then explained to defendant and

Lewis where exactly in the Delsea Gardens apartment complex Harris lived.

Gross and Lewis then got out of the vehicle and walked from the motel to Delsea

Gardens through a hole in the fence that separated the two properties. The two

A-1006-23 11 went up to Harris's apartment and knocked on the door while defendant remained

in the SUV. At trial, Gross was shown the surveillance footage and identified

himself and Lewis at Harris's door. Gross testified that Lewis wore purple Nike

Foamposite sneakers and a black hooded sweatshirt, and that Lewis also had on

latex gloves and was holding one of the guns that Gross had seen earlier at

defendant's house.

After knocking on the door, Gross walked away, as Harris's house was

dark and he did not think that anyone was home. No one answered the door,

and Gross and Lewis returned to the SUV.

Gross, Lewis, and defendant then drove around the area for some time,

and Gross assumed that Lewis and defendant were looking for Chuck.

Eventually, they returned to the motel next to Delsea Gardens. Like before,

defendant stayed in the SUV and Gross and Lewis got out and walked over to

Harris's apartment, passing through the hole in the fence. Gross knocked on

Harris's door, and believing no one was home, turned and walked away. At that

moment, Gross heard gunshots. He thought Lewis shot at the closed door, as he

did not see it open or see anyone else there. Gross said he heard "a lot" of shots

and did not hear any return fire. Gross and Lewis ran back through the hole in

the fence and into the SUV, where defendant was waiting.

A-1006-23 12 The three men drove back to defendant's house to drop Lewis off.

According to Gross, during the drive, Lewis and defendant discussed their plan

to split a $50,000 bounty, and Lewis confirmed that Harris was dead.

Before getting out of the SUV, Lewis took off the latex gloves and left

them in the car. Defendant ordered Gross to stay in the SUV and told Gross that

he would take him home. After they arrived at his house, Gross went inside to

change, but he insisted to defendant that he needed to go back to Delsea Gardens

and check on Harris. Defendant drove Gross back to Delsea Gardens, which

Gross believed he agreed to do because he wanted to watch Gross and make sure

he did not speak to police.

When they entered Delsea Gardens, they saw a substantial police

presence, and defendant immediately exited the apartment complex. As they

left, they noticed a police car following them. Shortly thereafter, they were

pulled over and Gross was arrested. Gross testified that defendant told him not

to say anything to the police. Gross complied because he was afraid that Lewis

would harm his family if he cooperated with police.

C. Indictment, Conviction, and Sentencing

On January 29, 2020, defendant, Lewis, and Gross were charged by

indictment with knowing/purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2)

A-1006-23 13 (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:11-3(a) (count two); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); and second-degree

burglary, N.J.S.A. 2C:18-2(a)(1) (count four). Lewis was also charged with

several additional counts.

Defendant filed a pretrial motion to suppress evidence acquired as a result

of the motor vehicle stop. On September 21, 2021, following a testimonial

hearing, the court denied defendant's motion to suppress, rendering an oral

opinion accompanied by a written order.

Defendant and Lewis were tried before a jury over the course of twenty-

two non-consecutive days between January and March 2023. On March 10,

2023, the jury found defendant guilty of count two, conspiracy to commit

murder. Defendant was acquitted of the remaining charges.

Sentencing took place on September 11, 2023. After determining

defendant was extended-term eligible pursuant to the persistent offender statute,

N.J.S.A. 2C:44-3(a), the trial court sentenced him to a thirty-six-year term of

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

A-1006-23 14 This appeal followed. Defendant raises the following contentions for our

consideration:

POINT I

THE JURY INSTRUCTIONS ON CONSPIRACY TO MURDER FAILED TO RESTRICT SUCH A CONSPIRACY TO A PURPOSEFUL AGREEMENT TO KILL, BUT, RATHER, EXPANDED IT TO INCLUDE AGREEMENTS IN WHICH ONE OR MORE OF THE PARTICPANTS MERELY KNEW THAT DEATH COULD RESULT BUT DID NOT PURPOSELY INTEND IT, OR EVEN AGREEMENTS IN WHICH ONLY SERIOUS INJURY (OR LESS) WAS INTENDED BY DEFENDANT, BUT THE VICTIM HAPPENED TO DIE.

POINT II

THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED FOR TWO REASONS: (1) THE STOP OF THE DEFENDANT'S RENTAL VEHICLE WAS MADE WITH ONLY A "HUNCH" THAT IT HAD BEEN INVOLVED IN A CRIME, RATHER THAN THE REASONABLE SUSPICION THAT THE CONSTITUTION REQUIRES, AND (2) THE ENSUING DETENTION OF DEFENDANT WENT FAR BEYOND A MERE "STOP"—IN TERMS OF LOCATION AND TIME—AND THEREBY BECAME A FULL-BLOWN ARREST WITHOUT PROBABLE CAUSE.

POINT III

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.

A-1006-23 15 Defendant raises the following additional contention in his supplemental

self-represented brief:

POINT IV

THE SUPREME COURT DECISION IN STATE V. HANNAH5 MAKES IT CLEAR THAT WHEN THE STATE OFFERS GEOLOCATION EVIDENCE WITHOUT EXPERT TESTIMONY TO DEMONSTRATE ITS SCIENTIFIC BASIS AND RELIABILITY, THAT EVIDENCE SHOULD BE RULED INADMISSIBLE.

II.

We first address defendant's argument regarding the jury instructions on

conspiracy to commit murder. Defendant contends for the first time on appeal

`that those instructions—which followed the model jury charge—"failed to

restrict such a conspiracy to a purposeful agreement to kill," and instead,

expanded it to include agreements in which one or more of the participants

"merely knew that death could result but did not purposely intend it" or

"agreements in which only serious injury (or less) was intended by defendant,

but the victim happened to die." Defendant contends his conspiracy conviction

must be reversed because the instruction "allowed the jury to convict for levels

of criminal intent that fall well short of what is necessary to convict for

5 263 N.J. 411 (2026). A-1006-23 16 conspiracy to murder." Defendant further maintains that this alleged error led

to "inconsistent" verdicts warranting entry of a judgment of acquittal. We are

unpersuaded by defendant's arguments.

A.

Because defendant did not object to the conspiracy charge that was given,

we review defendant's contention for plain error. R. 2:10-2. Under that

standard, a reviewing court must "disregard any alleged error 'unless it is of such

a nature as to have been clearly capable of producing an unjust result.'" State v.

Bragg, 260 N.J. 387, 404 (2025) (quoting State v. Funderburg, 225 N.J. 66, 79

(2016)). Reversal is required only in those instances where the error was

"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 Funderburg, 225

N.J. at 79).

Here, the court instructed the jury on conspiracy to commit murder in

accordance with the model jury charge. Model Jury Charges (Criminal),

"Conspiracy (N.J.S.A. 2C:5-2)" (rev. Apr. 12, 2010). It bears emphasis that a

jury charge is presumed to be proper when it tracks the model jury charge

because the process to adopt model jury charges is "comprehensive and

thorough." State v. R.B., 183 N.J. 308, 325 (2005); see also State v. Whitaker,

A-1006-23 17 402 N.J. Super. 495, 513-14 (App. Div. 2008) (explaining that "[w]hen a jury

instruction follows the model jury charge, although not determinative, 'it is a

persuasive argument in favor of the charge as delivered'" (quoting State v.

Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000))); cf. Mogull v. CB Com. Real

Est. Grp., Inc., 162 N.J. 449, 466 (2000) ("It is difficult to find that a charge that

follows the Model Charge so closely constitutes plain error.").

Here, the court charged the jury as follows:

The indictment charges the defendant with the crime of conspiracy to commit murder and reads as follows. On or about the 6th day of November, 2019 in the City of Millville, County of Cumberland, aforesaid and within the jurisdiction of this court, [defendant] and Cleve Lewis purposefully or knowingly did conspire to commit the offense criminal homicide contrary to provisions of 2C:5-2 and [2C:11-3(a)] . . . .

[A] person is guilty of -- conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he, one, agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

A conspiracy to commit the crime of murder is a crime in itself separate and distinct from the crime of murder. . . . In other words, a defendant may be found guilty of the crime of conspiracy regardless of whether

A-1006-23 18 that defendant is guilty or not guilty of the crime of murder.

In order for you to find a defendant guilty of the crime of conspiracy, the State must prove beyond a reasonable doubt the following elements. Number one, that the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or -- or an attempt or solicitation to commit such crime; or the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime. And, two, that the defendant's purpose was to promote or facilitate the commission of the crime of murder as I've already previously defined this charge.

....

[T]o decide whether the State has proven the crime of conspiracy you must understand what constitutes the crime of murder, as I've already defined it for you previously.

....

You have to decide whether the defendant's purpose was that he or a person with whom he was conspiring would commit the crime of murder. For him to be found guilty of conspiracy, the State has to prove beyond a reasonable doubt that when he agreed it was his conscious object or purpose to promote or make it easier to commit murder, as I previously instructed you.

Despite the fact that these instructions used the precise language in the

model jury charge (which, in turn, quotes the conspiracy statute, N.J.S.A. 2C:5-

A-1006-23 19 2(a), verbatim), defendant maintains that they were defective, essentially

arguing that conspiracy to murder requires the same mental state as attempted

murder. Defendant is mistaken as a matter of law. While both attempt and

conspiracy require a purposeful state of mind, the objects of that purpose are

different. Specifically, the attempt statute provides, in relevant part, that

"[w]hen causing a particular result is an element of the [predicate] crime," a

person is guilty of attempt if the person "does or omits to do anything with the

purpose of causing such result without further conduct on his part." State v.

Rhett, 127 N.J. 3, 6 (1992) (emphasis added) (quoting N.J.S.A. 2C:5-1(a)(2)).

As a result, an "actor is guilty of attempted murder only if [they] actually

intended the result, namely, death, to occur." Id. at 7.

Conspiracy, on the other hand, does not require a purpose to cause the

particular result of the predicate crime. Instead, the conspiracy statute provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

A-1006-23 20 [N.J.S.A. 2C:5-2(a) (emphasis added).]

In other words, the purposeful nature of the offense of conspiracy applies

to the agreement to "promot[e] or facilitate[e]" the crime, not to the result of

that crime. See State v. Samuels, 189 N.J. 236, 245 (2007) ("As the language

of the statute reveals, the agreement to commit a specific crime is at the heart of

a conspiracy charge."). Accordingly, contrary to defendant's newly minted

contention, the conspiracy count does not require an agreement to commit

purposeful murder; rather, it includes an agreement to commit murder as that

offense is defined, i.e., knowing or purposeful. N.J.S.A. 2C:11-3(a)(1)-(2).

Defendant cites several cases he claims stand for the proposition that "[a]

conspiracy to murder is an agreement only to purposely kill." Those cases,

however, do not support that proposition. See, e.g., State v. Abrams, 256 N.J.

Super. 390, 401 (App. Div. 1992) (reversing conspiracy conviction not based on

purpose requirement but because alleged co-conspirator's acts "never rose to the

level of an agreement"); State v. Madden, 61 N.J. 377, 394-95 (1972) (finding a

conspiracy charge inappropriate because there was no evidence of an "actual

agreement"). Defendant also cites State v. Fornino, in which we upheld a

conviction for conspiracy to murder where the trial record contained sufficient

evidence that the defendant "intended to kill" the victims. 223 N.J. Super. 531,

A-1006-23 21 536 (App. Div. 1988). But Fornino did not address defendant's contention that

only such a purpose can satisfy the conspiracy to murder charge. For these

reasons, we decline to part with precedent and hold that the model jury

instruction for conspiracy is erroneous as applied to a conspiracy to commit a

knowing or purposeful murder.

B.

We likewise reject defendant's closely related argument that the jury's

"inconsistent" verdicts resulted from the same alleged jury instruction error. As

we have noted, the jury found Lewis guilty of Harris's murder and defendant

guilty of conspiring with Lewis to murder Harris. Although those verdicts

necessarily made defendant vicariously responsible for Harris's death, N.J.S.A.

2C:2-6(b)(4), the jury found defendant not guilty of Harris's murder. 6 It is well

established, however, that "[w]e accept inconsistent verdicts in our criminal

justice system, understanding that jury verdicts may result from lenity,

compromise, or even mistake." State v. Goodwin, 224 N.J. 102, 116 (2016).

Notwithstanding that clear precedent, defendant relies on State v. Grey, 147 N.J.

4, 15-18 (1996), for the proposition that he is entitled not just to a reversal and

6 The State appears to concede that the verdicts were inconsistent, acknowledging in its response brief that "vicarious liability applies" and "the jury fail[ed] to understand vicarious liability." A-1006-23 22 remand for retrial, but to an entry of a judgment of acquittal. We disagree, as

defendant's reliance on Grey is misplaced given the unique circumstances of that

case.

In Grey, the defendant was convicted of second-degree conspiracy to

commit aggravated arson and three counts of felony murder. Id. at 8. The

defendant was acquitted, however, of knowing/purposeful murder, second-

degree aggravated arson, and third-degree terroristic threats. Ibid. On appeal,

the defendant argued for reversal of the felony murder verdicts because they

were inconsistent, as defendant was acquitted of the predicate felony of

aggravated arson. Id. at 8-9. Ultimately, the Court found that "unusual

circumstances in the sequence and delivery of the instructions to the jury led the

jury to predicate its conviction of felony murder on its conviction of conspiracy

to commit aggravated arson." Ibid. Because a conviction of felony murder "is

not permitted on that basis," the Court reversed the defendant's felony murder

convictions. Id. at 5, 17.

In arriving at its decision, the Grey Court emphasized that as a "general

rule," inconsistent verdicts are accepted. Id. at 11. In cases where the reason

for the inconsistent verdicts cannot be determined, a reviewing court "should

not speculate" as to the cause of the inconsistency and instead uphold the

A-1006-23 23 verdicts. Ibid. In Grey, however, "[t]he problem . . . [was] that there [was]

virtually no 'uncertainty,'" as "[t]he reason for the verdict appear[ed] [in] the

record." Id. at 12. The Court found that the "charging sequence undoubtedly

led the jury to acquit defendant of the underlying predicate to a felony murder 7

conviction." Id. at 14. The Court emphasized:

This . . . is an idiosyncratic case. . . . It is a case in which the inconsistency in the verdicts is undoubtedly due to the jury's erroneous belief that it could convict defendant of felony murder based on the conspiracy count. Although the jury might well have convicted the defendant of aggravated arson as an accomplice, it did not do so for reasons acknowledged by the prosecution to be related to the sequence of the charge and recharge on aggravated arson. This problem will most likely never arise again.

....

To sum up, this case is not about speculation as to the reasons for the inconsistent verdict but, rather, about a misleading charge that led to a verdict not permitted under our law. . . .

. . . The unusual sequence in the charge on aggravated arson explains why the jury did not convict

7 Felony murder occurs when a death is caused in the course of committing one of the predicate felonies enumerated in N.J.S.A. 2C:11-3(a)(3). It requires the State to prove beyond a reasonable doubt that the defendant committed the predicate felony. See Grey, 147 N.J. at 16 (noting that "juries . . . may not convict a defendant of felony murder unless they convict the defendant of the underlying [predicate] offense").

A-1006-23 24 defendant as an accomplice to aggravated arson. The conviction of conspiracy to commit aggravated arson may not serve as the predicate to a felony-murder conviction.

[Id. at 16-17 (emphasis added).]

Defendant maintains that, as in Grey, the inconsistency in the verdicts can

be explained by the court's instructions, specifically its "overbroadening the

definition of the crime of conspiracy to commit murder." But here, there was

no misleading charge that led to a verdict not permitted under the law. Contrary

to defendant's argument, the court's jury instruction was correct, as we have

explained. Stated another way, the so-called "inconsistency" in this case does

not appear to have been caused by the court's instructions—let alone

"undoubtedly" so, Grey, 147 N.J. at 16—as the court specifically told the jury,

"[I]f you find beyond a reasonable doubt that Cleve Lewis . . . committed the

crime of murder, and also that . . . defendant conspired with Cleve Lewis . . . to

commit that crime, then you must find . . . defendant guilty of the crime of

murder."

In reaching this conclusion, we adhere to the strict admonition that

reviewing courts must "resist the temptation to speculate on how the jury arrived

at the verdict." Goodwin, 224 N.J. at 116. The only inquiry is "whether the

evidence in the record was sufficient to support a conviction on any count on

A-1006-23 25 which the jury found the defendant guilty." Ibid. (quoting State v. Muhammad,

182 N.J. 551, 578 (2005)). In this case, there was sufficient, indeed,

overwhelming evidence to support the prosecution's theory that defendant made

an agreement with others to commit a planned murder. Accordingly, we

conclude that there was no error in the court's instructions warranting appellate

intervention.

III.

We next address defendant's search-and-seizure contention. Defendant

argues that the motion to suppress evidence collected following his motor

vehicle stop should have been granted because (1) the stop of his vehicle was

made without reasonable suspicion and (2) the ensuing encounter exceeded the

boundaries of a lawful investigative detention, transforming the investigatory

stop into a "full-blown arrest" for which the police lacked probable cause. We

are unpersuaded and affirm the denial of the motion to suppress.

A.

We briefly summarize the relevant facts elicited at the suppression

hearing, at which several Millville Police Department officers testified.

Officers arrived at Delsea Gardens at approximately 12:30 a.m. and were

able to review surveillance footage from the complex while still on scene via

A-1006-23 26 their mobile devices. The footage showed two subjects, one wearing a jacket

with a reflective stripe, entering Delsea Gardens through a fence on the north

side of the property and walking to Harris's unit. One of the subjects then

opened fire.

After reviewing this footage, police canvassed the area, and Detective

Miguel Martinez spoke to a witness who resided next door to Delsea Gardens at

the Millville Motor Lodge. The witness told Martinez that he observed a "huge,"

dark-colored, "newer model" SUV make three separate visits to Delsea Gardens

that evening. Each time, several individuals exited the SUV, walked toward the

apartment complex, and then returned to the SUV, which left the parking lot.

The witness told Martinez that this happened around 8:00 p.m., again around

9:00 p.m., and a third time around 11:20 p.m. Martinez relayed this information

to other officers.

Sergeant Brandon Kavanagh arrived at Delsea Gardens about one hour

after the shooting. While there, he learned of the large, dark-colored SUV that

was seen earlier that evening. At 1:18 a.m., Kavanagh saw a vehicle matching

that description leave Delsea Gardens. Kavanagh followed the vehicle, a new

Ford Expedition, based "on a hunch" that it may have been involved in the

shooting. There were not many other vehicles on the road at that time.

A-1006-23 27 Kavanagh followed the vehicle to a nearby bar and parked across the street to

observe. He saw the front seat passenger get out of the vehicle and walk into

the bar. After a few minutes, the passenger walked out of the bar and back into

the vehicle. The vehicle then pulled out of the parking lot of the bar and

continued down the road.

As he followed, Kavanagh received an update from Lieutenant George

Chopek, who informed Kavanagh that the suspect vehicle was "a large black

SUV, somewhat shiny, Ford Expedition or Chevy Suburban style." Kavanagh

immediately reported back that he was following a vehicle that matched that

description, and at approximately 1:30 a.m., at Chopek's direction, he initiated

a motor vehicle stop. When asked by the prosecutor why he stopped the vehicle,

Kavanagh testified that he initially followed it because it was a "large dark

colored SUV," and then "after I talked to Lieutenant Chopek and he informed

me that it was shiny, or somewhat clean SUV, we determined that maybe I

should stop it and find out who the occupants were inside of it."

After both vehicles pulled to the side of the road, the passenger got out

and walked into the middle of the street. Kavanagh instructed him to g et back

in the vehicle. The passenger complied. There were two people inside the

vehicle; defendant was the driver and Gross was the passenger. Kavanagh ran

A-1006-23 28 warrant checks on both individuals: Gross had at least one active warrant and

was arrested. Defendant had no active warrants.

Chopek arrived at the scene and reviewed additional surveillance footage,

which showed a black SUV entering and leaving Delsea Gardens around the

time of the shooting. Chopek testified that "it was pretty clear" this was

defendant's vehicle. Additionally, Chopek observed latex gloves in the SUV's

passenger door compartment. The SUV was towed and impounded.

At the police station, Detective Ricardo Ramos interviewed Harris's

girlfriend, Shante Brooks, who told Ramos that Gross and Harris were "best

friends." Ramos learned that Gross was one of the occupants of the vehicle

officers had stopped, and he relayed Brooks's statement to officers on scene.

At approximately 2:30 a.m., police took defendant, who was not

handcuffed, to the police station for further questioning. Ramos conducted the

interview and testified that defendant was initially cooperative and signed a

Miranda8 form at 3:56 a.m. Defendant told Ramos that he was smoking,

drinking, and driving around all day prior to being stopped. He also told Ramos

that the car was a rental. Finally, he stated that he and Gross had been at Delsea

Gardens visiting "this dude." At that point in the interview, defendant said that

8 Miranda v. Arizona, 384 U.S. 436 (1966). A-1006-23 29 he "d[idn't] want to answer [any] more questions," and Ramos terminated the

interview.

Following testimony, the court heard arguments from all parties. Notably,

defendant's counsel conceded that there was reasonable suspicion to stop the

vehicle but took issue with defendant's being taken to the police station for

further questioning.

The court issued an oral opinion, which was later accompanied by a

written order. The court held:

The stop of the vehicle, the decision made by Lt. Chopek to make an investigative stop of that vehicle was reasonable.

That was a reasonable decision predicated upon the information available to law enforcement at the time. They had a description of the vehicle. And some of the factors here, the description of the Delsea Gardens Apartments is a high-crime area. The time in which this vehicle was leaving is after 1 o'clock in the morning. So it's not mid-day. This . . . vehicle was being operated at a time of night in a high-crime area, matching the description of a vehicle that was associated with a homicide earlier that evening, an hour or so prior. It was absolutely appropriate that that vehicle be stopped at that point in time. It would have been a dereliction of their duty as investigators of this offense to allow that vehicle to leave uninvestigated. It is simply -- there are too many factors that would require police investigation of that vehicle.

A-1006-23 30 The court also found that the decision to bring defendant back to the

station for an interview did not amount to an arrest. Instead, the court found

that it was a "rapidly evolving situation" that warranted defendant's investigative

detention. The court concluded:

The question ultimately is, was law enforcement acting reasonably given the circumstances here. And the totality of the circumstances here is, it was entirely appropriate. Stopping the vehicle was almost a must. They had to stop that vehicle to find out what was going on. [There were] too many associations to the limited information they had at the time to allow that vehicle to leave.

Once the passenger in the vehicle was taken into custody due to the outstanding warrant and the decision was made to impound the vehicle, I disagree with [defense counsel], leaving [defendant] standing on the side of the road is not appropriate. He needed to be questioned. They needed to speak to him. Questioning him on the side of the road impaired their ability to record the statement and did not give a more formal interview, which was what they were looking for, which was appropriate [and] reasonable.

B.

We first address defendant's contention that the police lacked reasonable

suspicion required to stop his vehicle—notwithstanding that defense counsel

explicitly conceded that point at the suppression hearing. Defendant now argues

that the hearing testimony supports the notion that he was stopped based on a

A-1006-23 31 "hunch," and a "'hunch' is not good enough."

In determining whether the trial court erred in its suppression ruling, we

must "defer[] to the trial court's factual findings" and uphold them so long as

they are supported by "sufficient credible evidence in the record." State v.

Nelson, 237 N.J. 540, 551 (2019) (quoting In the Int. of J.A., 233 N.J. 432, 445

(2018)). "[A] trial court's findings should be disturbed only if they are so clearly

mistaken that the interests of justice demand intervention and correction." State

v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244

(2007)). In contrast, we review the trial court's interpretation of the law and the

legal "consequences that flow from established facts" de novo. State v. Gamble,

218 N.J. 412, 425 (2014).

"A lawful roadside stop by a police officer constitutes a seizure under both

the Federal and New Jersey Constitutions." State v. Dunbar, 229 N.J. 521, 532

(2017). "To be lawful, an automobile stop 'must be based on reasonable and

articulable suspicion that an offense, including a minor traffic offense, has been

or is being committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting

State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351

(2002)).

A-1006-23 32 In determining whether an investigative detention is justified under the

reasonable suspicion standard, "a court must consider 'the totality of the

circumstances—the whole picture.'" State v. Stovall, 170 N.J. 346, 361 (2002)

(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Furthermore,

reasonable suspicion "requires 'some minimal level of objective justification for

making the stop.'" State v. Amelio, 197 N.J. 207, 211-12 (2008) (quoting State

v. Nishina, 175 N.J. 502, 511 (2003)); see also State v. Scriven, 226 N.J. 20, 34

(2016) ("[R]aw, inchoate suspicion grounded in speculation cannot be the basis

for a valid stop."). "Although a mere hunch does not create reasonable

suspicion, the level of suspicion required is considerably less than proof of

wrongdoing by a preponderance of the evidence, and obviously less than is

necessary for probable cause." Gamble, 218 N.J. at 428 (internal quotation

marks and citations omitted).

Additionally, reasonable suspicion analysis considers "the officers'

background and training, and permits them 'to draw on their own experience and

specialized training to make inferences from and deductions about the

cumulative information available to them that might well elude an untrained

person.'" Nelson, 237 N.J. at 555 (additional internal quotation marks omitted)

(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)); see also Stovall,

A-1006-23 33 170 N.J. at 363 ("It is fundamental to a totality of the circumstances analysis of

whether reasonable suspicion exists that courts may consider the experience and

knowledge of law enforcement officers.").

"Although reasonable suspicion is a less demanding standard than

probable cause, '[n]either "inarticulate hunches" nor an arresting officer's

subjective good faith can justify infringement of a citizen's constitutionally

guaranteed rights.'" State v. Nyema, 249 N.J. 509, 527 (2022) (alteration in

original) (quoting Stovall, 170 N.J. at 372 (Coleman, J., concurring in part and

dissenting in part)).

"Determining whether reasonable and articulable suspicion exists . . . is a

highly fact-intensive inquiry that demands evaluation of 'the totality of

circumstances surrounding the police-citizen encounter, balancing the State's

interest in effective law enforcement against the individual's right to be

protected from unwarranted and/or overbearing police intrusions.'" Id. at 528

(quoting State v. Privott, 203 N.J. 16, 25-26 (2010)).

Here, as defense counsel conceded before the trial court, the police had

reasonable, articulable suspicion to stop defendant's vehicle. The SUV matched

a specific description—a large, black, new/shiny Ford Expedition or Chevy

Suburban—which was based on the credible testimony of the witness who

A-1006-23 34 observed the vehicle three separate times that evening. Kavanagh observed the

vehicle driving near the scene of the incident—a high-crime area—at 1:18 a.m.,

when few other cars were on the road. Finally, Kavanagh observed Gross exit

the passenger seat at the bar, and the officers knew that they were looking for

more than one suspect based on surveillance footage and the witness's testimony.

Importantly, Kavanagh was not the only officer who made the decision to stop

the vehicle.

Although Kavanagh used the term "hunch," that referred to the initial

decision to follow the vehicle. It is well established that reasonable suspicion

is not needed to follow a vehicle. See Michigan v. Chesternut, 486 U.S. 567,

575 (1988) (holding that police do not seize a suspect by merely following them

without activating their siren/lights or otherwise directing the suspect to stop);

State in Int. of C.B., 315 N.J. Super. 567, 572 (App. Div. 1998) ("[P]olice do

not effectuate a [Fourth Amendment] stop simply by . . . following a person in

a police vehicle." (citations omitted)). Rather, the reasonable suspicion

requirement arises at the moment that police communicate to the driver of the

subject vehicle to pull over. The record clearly demonstrates that by the time

the decision was made to initiate a stop, police had reasonable suspicion to

believe the vehicle was involved in criminal activity based not only on

A-1006-23 35 Kavanagh's own observations, but information communicated to him by other

officers investigating the recent murder.

C.

We next address defendant's contention that when he was transported to

the station for interrogation, the vehicle stop "became an arrest conducted

without probable cause" and "that suppression of its fruits should have been

ordered for that reason too." Although we agree with defendant that the

investigative detention was unduly protracted, we are satisfied that in these

circumstances, the "fruit" of the unlawful arrest—a statement defendant gave to

police9—is not subject to the exclusionary rule. Here, defendant's post-Miranda,

voluntary statement to police was sufficiently attenuated from his arrest .

Furthermore, the admission of his electronically recorded statement at trial was

in any event harmless beyond a reasonable doubt given the overwhelming and

independent evidence of guilt presented to the jury.

An investigative stop "must be limited in time and scope to the purpose

that justified the stop in the first place." State v. Gibson, 218 N.J. 277, 291

(2014) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). "[A]n investigative

9 While not relevant to this appeal, the trial court suppressed part of defendant's statement based on his invocation of his Miranda rights. A-1006-23 36 stop becomes a de facto arrest 'when the officers' conduct is more intrusive than

necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998)

(quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir. 1985)). Factors

relevant to determining if an investigative stop has become a de facto arrest

include: the duration of the stop, if it involves unnecessary delay; "the degree

of fear and humiliation that the police conduct engenders;" "transporting a

suspect to another location or isolating him from others;" and "subjecting a

suspect to unnecessary delays, handcuffing him, or confining him in a police

car." Id. at 479 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir.

1994)); see also State v. Shaw, 237 N.J. 588, 612-13 (2019) (listing the same

factors).

"Case law has recognized law enforcement's need to respond to the

fluidity of a street encounter where there is a reasonable suspicion of

wrongdoing; accordingly, the duration of the investigative stop may be extended

for a reasonable but limited period for investigative purposes." State v. Coles,

218 N.J. 322, 343-44 (2014). "In assessing whether a detention is too long in

duration to be justified as an investigative stop, [courts] . . . examine whether

the police diligently pursued a means of investigation that was likely to confirm

or dispel their suspicions quickly, during which time it was necessary to

A-1006-23 37 continue to detain the defendant." Dickey, 152 N.J. at 477 (quoting United

States v. Sharpe, 470 U.S. 675, 686 (1985)). Further, to avoid becoming a de

facto arrest, the "detention must be reasonable both at its inception and

throughout its entire execution." Shaw, 237 N.J. at 612 (quoting Coles, 218 N.J.

at 344). "Once a de facto arrest occurs, the particularized suspicion that

originally supported the investigatory detention is no longer sufficient and the

arrest must be supported by probable cause." Coles, 218 N.J. at 346.

Our Supreme Court has determined as "[m]uch as a 'bright line' rule would

be desirable, in evaluating whether an investigative detention is unreasonable,

common sense and ordinary human experience must govern over rigid criteria."

Dickey, 152 N.J. at 476-77 (quoting Sharpe, 470 U.S. at 685). Furthermore, the

U.S. Supreme Court has "emphasized the need to consider the law enforcement

purposes to be served by the stop as well as the time reasonably needed to

effectuate those purposes." Sharpe, 470 U.S. at 685.

In this instance, we are not convinced that the extended delay occasioned

by the police transporting defendant to the station for further questioning stayed

within the boundaries of an investigative detention. At some point, the detention

became tantamount to an arrest for Fourth Amendment purposes. However, the

fruit of the resultant arrest was sufficiently attenuated from that detention such

A-1006-23 38 that suppression is not required. "[T]he exclusionary rule will not apply when

the connection between the unconstitutional police action and the evidence

becomes so attenuated as to dissipate the taint from the unlawful conduct." State

v. Williams, 192 N.J. 1, 15 (2007) (quoting State v. Badessa, 185 N.J. 303, 311

(2005)). While the "general rule" is that "a confession obtained through

custodial interrogation after an illegal arrest should be excluded," courts will

decline to exclude a confession that was "sufficiently an act of free will" to

"purge the primary taint" of the illegal arrest. Shaw, 237 N.J. at 614 (internal

quotation marks and citations omitted). Stated another way, we must "separate[]

confessions which resulted from an exploitation of an illegal arrest from those

which were the product of the defendant's free will, the taint of the illegal arrest

having been sufficiently attenuated." Ibid. (quoting State v. Barry, 86 N.J 80,

87 (1981)). We conclude that defendant's statement was sufficiently attenuated

from his detention such that exclusion was not required. We emphasize that

defendant was Mirandized before making any statements to police and

eventually invoked his right to remain silent.

Furthermore, we are satisfied that even assuming for the sake of argument

that defendant's statement to police should have been suppressed as a fruit of an

unlawfully protracted investigative detention, the error in admitting that

A-1006-23 39 statement was harmless beyond a reasonable doubt. It is well-settled that "'most

constitutional errors can be harmless,' and are therefore not subject to automatic

reversal." State v. Camacho, 218 N.J. 533, 547 (2014) (quoting Arizona v.

Fulminante, 499 U.S. 279, 306 (1991)); see also State v. Carlton, 262 N.J. 629,

642 (2026) ("Federal constitutional errors are generally subject to harmless error

review."). When a constitutional right is implicated, the harmless error analysis

requires that the error be harmless beyond a reasonable doubt. See State v.

Slaughter, 219 N.J. 104, 118-19 (2014) ("[W]here the trial court commits a

constitutional error, that error is to be considered 'a fatal error, mandating a new

trial, unless we are able to declare a belief that it was harmless beyond a

reasonable doubt.'" (quoting State v. Cabbell, 207 N.J. 311, 338 (2011))).

"When we consider whether a given error is harmless, that error 'must be

evaluated in light of the overall strength of the State's case.'" State v. Allen, 254

N.J. 530, 550 (2023) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)).

In State v. Tillery, our Supreme Court noted that whether the defendant's

Miranda waiver was voluntary presented a "close question," but ultimately

concluded that any error in the trial court's admission of the statement was

harmless beyond a reasonable doubt. 238 N.J. 293, 302 (2019). The Court

explained that the statement was harmless because it was not capable of

A-1006-23 40 changing the outcome of the defendant's trial, considering the overwhelming,

"independent" evidence of his guilt and that the admitted statement "contained

little—if any—incriminating evidence." Id. at 319-22.

Conversely, the Court in State v. Wade concluded that case was not "an

instance of overwhelming, direct evidence." 252 N.J. 209, 221 (2022). Rather,

"[the] [d]efendant's statements identifying himself in the liquor store footage

strengthened the State's theory of the case and the circumstantial evidence

supporting it." Ibid. Noting that "the State's theory hinge[d] on circumstantial

evidence of [the] defendant's location at a particular time," the Court concluded

that the defendant's "self-identifying, self-inculpatory statement that color[ed]

the defendant as a liar [wa]s not harmless beyond a reasonable doubt." Ibid.

Here, defendant admitted in his recorded statement that he and Gross

visited someone at Delsea Gardens earlier that evening. While this admission

indirectly incriminated defendant by placing him with Gross at the apartment

complex where the shooting occurred, that fact—and defendant's broader

participation in the crime—was independently established by other evidence at

trial. Specifically: (1) Gross testified extensively to defendant's involvement in

the planning and commission of the shooting, provided evidence of a motive for

defendant's participation (recouping the bounty placed on Harris), and identified

A-1006-23 41 defendant in surveillance footage; (2) that footage showed defendant's SUV

entering Delsea Gardens around the time of the shooting and Lewis and Gross

fleeing into defendant's SUV after shooting Harris; (3) the GPS data from the

SUV's infotainment system confirmed defendant's presence at Delsea Gardens

at those times, including the time of the shooting; (4) police found a press release

relating to Harris's murder in defendant's kitchen; and (5) various

communications between Lewis and defendant indicated that they had planned

the shooting together. In these circumstances, we conclude that as in Tillery,

even if defendant's stationhouse statement was erroneously admitted, it was

harmless beyond a reasonable doubt given the overwhelming, independent

evidence of his guilt presented at trial.

IV.

We turn next to defendant's contention that the trial court improperly

admitted geolocation evidence without expert testimony. We begin by noting

that "a trial court's evidentiary rulings are 'entitled to deference absent a showing

of an abuse of discretion, i.e., there has been a clear error of judgment.'" State

v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469,

484, (1997)). "Under that standard, an appellate court should not substitute its

own judgment for that of the trial court, unless 'the trial court's ruling was so

A-1006-23 42 wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting

Marrero, 148 N.J. at 484) (internal quotation marks and citations omitted).

A.

In this case, the State proffered digital evidence obtained using three

software technologies: Geotime, Cellebrite, and Graykey.

Geotime

The Geotime evidence was presented over defense counsel's objection that

the State needed to supply expert testimony regarding the scientific basis and

reliability of the GPS-data collection device in the vehicle and the Geotime

software that compiled it.

Investigator Thomas Chang of the New Jersey State Police testified that

he received "GPS coordinates, latitude, longitudes, date and times" from

Detective Calixto that had been extracted from the infotainment system of the

rental SUV. Chang entered this GPS data into the Geotime software to create a

map of the SUV's route from November 6, 2019, to November 7, 2019. During

his testimony, Chang placed the SUV in various locations from Delsea Gardens

to the surrounding area that generally matched the State's allegations regarding

the location of the SUV.

A-1006-23 43 Prior to Chang's testimony, the trial court conducted a Frye10 hearing on

admissibility of the Geotime software he utilized. According to Chang's

testimony at the hearing, the raw data extracted from the vehicle was provided

to him on an Excel spreadsheet. Chang further explained, "[t]he software that I

use works with coordinates and it maps everything . . . on a Google-style map,

the geography map." Chang testified that he could have created the map

manually using the same GPS coordinates, but that would have been more time

consuming.

Chang testified that he had received two eight-hour trainings along with

"[a]bout [fifteen] online courses" regarding the operation of the Geotime

software. He could not attest to the reliability of the data, the manner in which

it was collected, or the software. Chang was unaware of any peer-reviewed

10 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Codefendant Lewis argues that State v. Olenowski, 253 N.J. 133 (2023), was decided during the course of his trial and required that the trial court consider the Daubert factors in admitting testimony regarding Cellebrite. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). However, the Olenowski Court stated "[n]othing in today's decision disturbs prior rulings that were based on the Frye standard. Future challenges in criminal cases that address the admissibility of new types of evidence should be assessed under the new standard outlined above." 253 N.J. at 154. While this issue was not raised by defendant, we note that because Olenowski does not apply retroactively, we decline to reverse the trial court's decision with respect to the admissibility of evidence based on its use of the Frye standard. A-1006-23 44 articles about the software he was using and had no knowledge of the system

limitations of the devices involved or of scientific studies regarding their

reliability.

Following the hearing, the trial court concluded that expert testimony was

not needed to explain the Geotime software to the jury. The court explained,

[W]hile it's impressive, this is not rocket science, okay? This is just about taking data and putting the points on a map. Whether they're accurate or not depends on the GPS technology which . . . I find is fundamentally reliable. And this is just recording that information on a map. As long as he operates it correctly, and he's been trained to do that, I do not find that that is the type of technology that the Court would require a great deal of explanation on because it's fairly basic.

....

So GPS location technology is generally reliable. The manufacturer of the vehicle has an interest to make sure that the units they're using are . . . reasonably accurate, and the [Geotime] system . . . this individual has been properly trained to operate. And its ultimate function is not so complex that would require further examination by the Court. It's just plotting.

Graykey and Cellebrite

The State also presented Detective Kyle MacDonald to testify as to his

use of Graykey and Cellbrite to extract and interpret data from Lewis's phone.

The trial court conducted another Frye hearing outside the presence of the jury

A-1006-23 45 prior to MacDonald's testimony. According to MacDonald, Graykey serves two

functions: (1) it guesses the password of the phone to be searched or bypasses

the password, and (2) it copies the files on the phone onto a hard drive. The

copied files consist of incomprehensible letters and numbers, which Cellebrite

transforms into a readable format.

MacDonald is a certified forensic computer examiner and has used

Cellebrite for over nine years. He testified that he has had the opportunity to

verify the program's accuracy by checking its results against data on unlocked

phones. He testified that both Graykey and Cellebrite were commonly used and

relied upon by police departments.

The trial court found that MacDonald's testimony regarding Graykey and

Cellebrite was admissible, over defense counsel's objection. With respect to

Graykey the court explained,

the Frye application with regard to Gray[k]ey is kind [of] counterintuitive. How could the Court ever determine that you can't rely upon it if it gets you in the phone? And it got him in the phone. So how could I find that that is not reliable? But the fact that law enforcement generally relies upon that particular device with regard to iPhones, it demonstrates to the [c]ourt that there is sufficient reliability with regard to that because they were able to open the phone ultimately, and open the entire phone.

A-1006-23 46 Turning to Cellebrite, the court made the following findings:

But as far as Cellebrite, it is generally relied upon, particularly here in New Jersey, by law enforcement, and the state police use it.

....

So generally speaking, the Cellebrite technology I find is reliable. It is independently verifiable by comparing the phone once you get access to the phone.

....

But again, it is the type of technology that is generally relied upon by law enforcement as generally reliable. So from the standpoint of the [Frye] application, it would generate generally reliable or trustworthy results.

The trial court concluded that expert testimony was not required for either

program, and further found that MacDonald was sufficiently trained in both to

testify as a lay witness to what he observed when using those programs.

Cell Tower Location Testimony

Investigator Chang also testified to "call" and tower-location data

provided from the use of Graykey and Cellebrite. The trial court held a Rule

104 hearing outside the presence of the jury to determine the admissibility of

this testimony. Defense counsel did not raise any objections to this testimony

following the hearing; however, the court expressed the following concerns:

A-1006-23 47 THE COURT: Is this the proper witness to be giving testimony about cell tower data? Has he been qualified as an expert?

[THE PROSECUTOR]: No, Your Honor.

THE COURT: All he can say is he got this data and he plugged it into the program. That's okay. But what that data means, that's something completely different, isn't it? This is exactly what I was talking about a few minutes ago. This is different than doing a data dump out of a cellphone and taking its reported coordinates just like the infotainment system.

....

THE COURT: This witness is trying to give, or is attempting to give expert testimony without being qualified as an expert when it comes to cell tower location technology. Cell tower location technology is different. We're talking about . . . not quadrants, sectors, three sectors. Now, I've heard this testimony more than once before. I think I have a fairly good understanding of how it works. But I have heard nothing to indicate that this individual should be considered an expert in the generation of the data. He may be able to interpret the data through his system. That's fine. But the data itself and the admissibility of the data is the other question. Now, I do know through previous experiences here that particularly down in this area there are a couple of cell towers that have a couple issues with regard to distances, okay? And so far what I've heard from him is accurate, but he's simply not qualified as an expert to give that kind of testimony, and that's my problem.

A-1006-23 48 The court concluded that Chang's testimony should be limited to tower

location, explaining,

at best what he can do, and I don't know what he's plotted in his report, he can indicate what cell tower the data says it hit off of and where the cell tower is located. But as for the exact location of the phone, without an actual expert testifying about . . . how they could figure out where that is, [I am] not going to permit that.

At trial, co-defendant Lewis presented his mother, Loretta Lee, as his alibi

witness for the night of the shooting. Lee claimed she was with Lewis at his

home that night, and arrived at approximately 10:20 p.m. Accordingly, d efense

counsel for Lewis requested that the trial court allow cross-examination

regarding the distance between certain addresses to bolster Lewis's alibi.

Defense counsel stated, "[t]he report also alludes to distances from one point to

another. Can he be cross examined with regard to distances?" The trial court

permitted the requested cross-examination.

Chang testified before the jury as follows:

Q Did you receive data about calls and when they took place?

A Yes, I did.

Q And what was the date and time range for this data?

A-1006-23 49 A The data provided was from 9:19 [p.m.] through 9:44 [p.m.], November 6, 2019.

Q And who was the phone carrier?

A T-Mobile.

Q And what was your methodology for your analysis, sir?

A It was . . . to provide a visual display of the call events where -- where in the State of New Jersey the . . . phone calls are connected with . . . cellular antennas.

Q Okay. And were you able to locate a location for the tower?

A Yes.

Q And where was the location of the tower generally? In what town or area?

A . . . Fairfield Township.

....

Q Okay. If you look on page [twelve], it indicated that there was another call that took place later. Just looking for the time of that call.

A Okay. So . . . that last call that I did -- that I did mention at 9:44 and [twenty-eight] seconds [p.m.] . . . that call lasted [sixteen] minutes and [forty] seconds. With that it would have ended at 10:01 [p.m.]

Q And was there an address that you were interested in comparing that phone number to?

A-1006-23 50 A As far as the location of –

Q Yes, sir.

A Where this phone -- where the –

Q The tower was.

A It was along Fairton-Gouldtown Road.

Q So the tower was located at Fairton –

A Yes, and if I remember working in this area that was right at the Fairfield Township municipal building. So . . . right behind it was the cell tower.

Q And did you compare the location of the tower to another address?

A Yes, to the one that was in Upper Deerfield Township, Seabrook.

Q And what was the address for this, sir?

A That was First Avenue. 1107 First Avenue, Seabrook, New Jersey.

Q And would you happen to know, in miles, how far they are?

A Not . . . off hand. Not . . . an exact mile.

Q Was it something that you noted in your report?

A [I] have a time. On page six of my report I have a line of sight distance and that's 7.5 miles.

A-1006-23 51 Q And if you were driving do you have a rest of the distance from driving?

A Yes, I do. Depending on the route you took, I showed three of them. . . . [T]he most direct one was 8.7 miles, [sixteen] minutes; one was 9.4 miles, [eighteen] minutes; and another -- the third one was 9.4 miles, [seventeen] minutes.

On cross-examination defense counsel for codefendant Lewis elicited the

following testimony intended to bolster Lewis's alibi:

Q Okay. How about the . . . distance of [sixteen] miles. Did you calculate a time off the Google Maps from the tower to 1107 First Avenue?

A [Sixteen] minutes you mean? It's -- the [sixteen] minutes is 8.7 miles. There's no [sixteen] miles anywhere.

Q You're right. Yeah. I stand corrected. Right. The second alternative was 8.7 miles. That would have taken [sixteen] minutes?

A Yes.

Q So then the time of arrival would be -- correct me if I'm wrong -- about 10:16 [p.m.] if the person left right away.

A Give or take a minute, yes.

Q Right. And the third alternative was [eighteen] minutes. So it's a couple minutes over that. Over the last time.

A Yes.

A-1006-23 52 Q Okay. So all in all . . . it would have been possible . . .to travel from the tower to the 1107 in about a half hour.

A Sure. I don't see why not.

In closing, Lewis's counsel argued that Lee testified credibly that she was

with defendant at his home on the evening of the shooting because her version

of events fit the timeline established by Chang's testimony,

And, about . . . Loretta Lee, her assertion to [Detective Calixto] that she was there between ten and one, that time interval. So, what . . . Chang has to do is to get [the] cell tower information of . . . where her phone was and how far it would have been from her location to the 1107, in that time and see if it was feasible. In fact it was feasible.

During summation, the State told the jury that Chang's testimony

concerned information gathered "from Ms. Lee's alleged phone number, about

where that phone was pinging on November 6, 2019." In closing, the State

argued that Chang's testimony discredited Lewis's alibi that he was with his

mother on the night of the shooting, stating:

She can't account for November 6th, because she wasn't with Mr. Lewis. And, she realized it up there. And, we know from Investigator Chang her phone was nowhere near that house. The last call ended at 10:01, and then all of a sudden she shows up to -- yesterday on the stand and says I remember when I got there. It was 10:20 p.m. exactly, on the dot. But, do you remember Investigator Chang's testimony when [defense counsel]

A-1006-23 53 asked him to do that math? How long would it take her to get there? Oh, about 10:19 she -- they would have gotten there. That's very convenient that she makes up 10:20. But, you learned that she never remembered the time when she told investigators previously.

B.

In his supplemental brief, defendant argues that the holding in Hannah

establishes that "in order to geolocate a phone with technical data . . . the State

must use an expert witness to explain the scientific basis for the opinions offered

. . . ." Defendant further contends that both the GPS data acquired from the

rental SUV, assembled via the Geotime software, and the cell-tower

information, assembled via Graykey and Cellbrite, required expert testimony to

be admissible.

In Hannah, the Supreme Court was specifically concerned with cell site

location information (CSLI). In that case, the State presented lay witness

testimony from an investigating detective that the defendant was inside the

victim's vehicle because his phone pinged cell towers a certain number of miles

from the car's known location and the phone continued to ping towers on a path

correlating to the route of the car. 263 N.J. at 418. In summation, the prosecutor

told the jury that "a cell phone must be close to the tower it connects to, stating

that its proximity must be 'a stone's throw' away." Ibid. The Court concluded

A-1006-23 54 that the testimony was improperly admitted and should have been "presented by

a witness qualified as an expert pursuant to N.J.R.E. 702 because the technical

aspects of CSLI are beyond the ken of the average juror." Id. at 442.

In particular, the Court was concerned with the "intricacies and nuances

of cell towers" to glean location information. Id. at 445. As the Court explained,

"[t]he relevance of CSLI can be understood by a jury only when it has a better

grasp of how cell towers and cell phones interact. This requires an

understanding of cell tower sectors, direction, and maximum coverage range,

and the many factors, such as terrain and topography, that impact whether a cell

phone connects to the closest tower or to one that is farther away." Ibid. The

Court drew a bright line rule with respect to CSLI, rejecting the trial court's

attempts to distinguish between CSLI testimony simply presenting information

regarding tower locations, and the technical aspects of how the towers operate.

See id. at 442.

In rejecting the State's argument, the Court explained,

[t]he State argued that any layperson, including members of the jury, can determine and plot locations of cell towers by using the towers' longitude and latitude provided in the records and inputting those numbers into an internet mapping application. Although a jury may be able to figure out the location of cell towers using phone records, it would not be able to draw any meaningful inferences from that

A-1006-23 55 information without an understanding of how cell towers operate and why those cell tower locations matter. And, in the absence of expert guidance, a jury could attribute more or less weight to the tower locations than is warranted.

[Id. at 445.]

In sum, the Court concluded that expert testimony is required to present

CSLI evidence so that jurors can appropriately understand the interaction

between the cell phone and the tower.

Here, Chang's testimony regarding evidence obtained from Geotime is

distinguishable from CSLI. Chang testified that he received the "raw" GPS data

from Detective Calixto and entered that information into Geotime. Chang

further testified that he could replicate the information Geotime produced by

manually placing the GPS coordinates on a map; however, it was faster to use

the software. Unlike CSLI, nothing in Hannah suggests that GPS evidence

categorically requires expert testimony to determine precise location. See 263

N.J. at 436 ("CSLI, by definition, is not exact. Exact location information must

instead be obtained via GPS"); see also State v. Burney, 255 N.J. 1, 22 (2023)

("Unlike the more precise location data provided by [GPS], cell site analysis

simply confirms that the phone was somewhere within the coverage radius of

A-1006-23 56 the cell tower during the recorded activity."). 11 "Generally, the accuracy of GPS

devices is accepted." State v. McDuffie, 450 N.J. Super. 554, 570 (2017). We

recognize that expert testimony may be required where the accuracy or

trustworthiness of the evidence can be called into question. See State v. Martini,

160 N.J. 248, 263 (1999). However, the GPS data in this case was corroborated

by surveillance videos and law enforcement's observations of the SUV. For

example, Kavanagh testified that he observed the SUV leave Delsea Gardens

and head to a nearby bar at about 1:18 a.m. The GPS coordinates indicate that

the SUV turned into the bar at 1:19 a.m., and video surveillance shows Gross at

the bar at about 1:20 a.m. In these distinctive circumstances, expert testimony

was not necessary with respect to the GPS evidence.

We likewise conclude that MacDonald's testimony related to his use of

Graykey and Cellebrite to extract and interpret data from Lewis's phone does

not fall within the purview of Hannah and did not require expert testimony.

11 We acknowledge that in State v. French G. Lee, __ N.J. ___ (2026), our Supreme Court recently held that the trial court should have held a pretrial hearing on the admissibility of expert testimony regarding fingerprint evidence where defendant raised legitimate issues as to the reliability of that testimony. (slip op. at 21). By contrast, the trial court in this case conducted pretrial hearings to address defendants' challenges to the admissibility of evidence. A-1006-23 57 We note that "[c]ourts in New Jersey have permitted police officers to

testify as lay witnesses, based on their personal observations and their long

experience in areas where expert testimony might otherwise be deemed

necessary." State v. Miller, 449 N.J. Super. 460, 471 (App. Div. 2017) (quoting

State v. LaBrutto, 114 N.J. 187, 198, 553 A.2d 335 (1989)). MacDonald's

testimony was permissible lay opinion testimony based on his personal

knowledge and nine years of experience using Cellebrite and Graykey in his role

as a detective. See N.J.R.E. 701 ("If a witness is not testifying as an expert, the

witness' testimony in the form of opinions or inferences may be admitted if it

(a) is rationally based on the perception of the witness and (b) will assist in

understanding the witness' testimony or in determining a fact in issue.").

Accordingly, the trial court properly admitted MacDonald's testimony as lay

opinion pursuant to N.J.R.E 701.

However, given the guidance set forth in Hannah, we conclude that

Chang's testimony regarding the location of cell towers was improper because

he was not qualified as an expert pursuant to N.J.R.E. 702. The Hannah Court

made clear that expert testimony is required to present CSLI evidence because

"the technical aspects of CSLI are beyond the ken of the average juror." Id. at

442. Although the trial court limited Chang's testimony to tower location, the

A-1006-23 58 Hannah Court rejected similar attempts to distinguish between CSLI testimony

regarding tower locations, and the technical aspects of how the towers operate.

See 263 N.J. at 442. Chang's testimony regarding the distance between tower

locations and certain addresses is precisely what the Hannah Court cautioned

against and determined requires expert testimony to be admissible. See id. at

445 ("[I]n the absence of expert guidance, a jury could attribute more or less

weight to the tower locations than is warranted."). Because Chang was not

qualified as an expert, his testimony regarding tower locations should not have

been admitted.

C.

However, our inquiry does not end there. We must next address whether,

in these circumstances, permitting lay witness testimony regarding CSLI

requires reversal.

"A trial error is defined as an 'error which occurred during the presentation

of the case to the jury,' and therefore may 'be quantitatively assessed in the

context of other evidence presented in order to determine whether it was

harmless beyond a reasonable doubt.'" Camacho, 218 N.J. at 547 (quoting

Fulminante, 499 U.S. at 307-08). "When we consider whether a given error is

harmless, that error 'must be evaluated in light of the overall strength of the

A-1006-23 59 State's case.'" Allen, 254 N.J. at 550 (quoting Galicia, 210 N.J. at 388). "[I]n

appeals involving the erroneous admission of improper police officer lay

testimony, the nature and extent of the admitted testimony is balanced against

the strength of the prosecution's case beyond that testimony in determining

whether the court's error requires a new trial." Ibid. Admission of evidence that

should have been presented through expert testimony may still be considered

harmless. See, e.g., State v. Derry, 250 N.J. 611, 634 (2022) (concluding that

although the officer's testimony was improperly admitted as lay opinion

testimony and may not have satisfied the requirements for expert testimony, the

error was harmless given the overwhelming evidence against defendants).

Balancing the error against the strength of the State's case, we find that

the admission of Chang's testimony related to CSLI was harmless beyond a

reasonable doubt. First, unlike Hannah, the tower location testimony in this case

was used to discredit an alibi witness, not to establish defendant's location at a

particular time. Moreover, the alibi witness' credibility was already impeached

by her own inconsistent testimony at trial. We note that counsel for Lewis

advocated for cross-examination on this issue and incorporated Chang's

testimony in its closing argument to bolster Lewis's alibi. We further note that

A-1006-23 60 defendant's counsel did not object to this testimony before the trial court,

implicating the plain error standard on review.12

We, however, need not reach a determination whether the error was

invited or constituted plain error because we conclude that the overwhelming

evidence against defendants, particularly considering Gross' testimony against

them, renders the admission of Chang's testimony harmless. Specifically, the

jury heard Gross's testimony that he, Lewis, and defendant planned and

orchestrated the shooting. At trial, Gross identified himself and Lewis at

Harris's door on the surveillance footage captured from the night of the shooting.

In light of the strength of the State's case, we hold that any error in admitting

Chang's testimony regarding cell tower location did not affect the outcome and

was harmless beyond a reasonable doubt.

12 We note that under the invited error doctrine, errors that "were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). Moreover, because defense counsel failed to object to the admission of CSLI testimony below, the issue is subject to plain error review. See R. 2:10-2. However, we need not determine whether the error was invited or constituted plain error, because we find it was harmless considering the strength of the State's case.

A-1006-23 61 V.

Finally, we address defendant's sentencing argument. Defendant argues

that "the sentence imposed is manifestly excessive and unconstitutional."

Specifically, defendant first argues that "there was no jury finding of the

statutory predicates for a discretionary extended term." Second, defendant

argues that "the judge plainly misstated the applicable sentencing range," and

thus, "miscalculate[ed] the 'midpoint' between the lowest and highest available

sentences" Finally, defendant argues that the judge improperly evaluated th e

aggravating factors. We are unpersuaded by defendant's arguments.

In considering the length of defendant's sentence, the sentencing court

first found defendant eligible for an extended term as a persistent offender

pursuant to N.J.S.A. 2C:44-3(a). The court found:

Upon consideration of the application of the prosecutor the court finds that the defendant meets the definition of a persistent offender pursuant to 2C:44-3a. . . . The offense for which the defendant is pending is a first degree offense and the defendant was convicted on at least two separate occasions of two crimes committed at different times. On each of those prior offenses the defendant was over the age of eighteen. Lastly, the last offense occurred within ten years of defendant's release from confinement or sentencing on that last offense.

It then found aggravating factors three ("[t]he risk that the defendant will

commit another offense"), six ("[t]he extent of the defendant's prior criminal

A-1006-23 62 record and the seriousness of the offenses of which the defendant has been

convicted"), and nine ("[t]he need for deterring the defendant and others from

violating the law")13 applicable, and no mitigating factors. Based on these

findings, the court reasoned:

The sentencing range on a first[-]degree offense subject to an extended term is between twenty years and life. That is the statutory range and I discussed that with your attorneys when we talked about what is the normal range. That is the normal range. That's not the normal range. That's the extended term range.

So I start from the position of, well where's our midpoint? Where is the midpoint between twenty years and life? Life is seventy-five years. Midpoint between twenty years and life I think is forty-two-and-a-half years. That's the midpoint.

Therefore, on count two . . . defendant shall be committed into the custody of the Commissioner of the Department of Corrections for a period of thirty-six years and must serve eighty-five percent of the sentence imposed before becoming eligible for parole. NERA applies.

A.

On appeal, defendant argues that pursuant to State v. Carlton, 480 N.J.

Super. 311 (App. Div. 2024), certif. granted, 260 N.J. 478 (2025), rev'd, 262

13 N.J.S.A. 2C:44-1(a) (3), (6), (9).

A-1006-23 63 N.J. 629 (2026), which was issued following the U.S. Supreme Court's decision

in Erlinger v. United States, 602 U.S. 821 (2024), this matter should be

remanded for resentencing because only a jury, not a judge, can find that he

satisfies the elements of the persistent offender statute.

While this case was pending, and following submission of the parties'

briefs, our Supreme Court rendered its decision in State v. Carlton, 262 N.J. 269

(2026). It is not disputed that Erlinger abrogated New Jersey's persistent

offender statute to the extent that N.J.S.A. 2C:44-3(a), as presently drafted,

provides that certain predicate facts are to be found by a court rather than a jury.

The critical issue presented to our Supreme Court in Carlton was whether a

violation of the Erlinger rule could be harmless constitutional error. The Court

concluded that "errors in failing to submit sentencing factors or elements to a

jury, as in Apprendi and its progeny, are presumptively subject to harmless error

analysis, not automatic reversal." Carlton, 262 N.J. at 643. The Court further

held that before a constitutional error can be considered harmless, the reviewing

court must be convinced beyond a reasonable doubt that the error did not affect

the outcome. Id. at 642. Stated another way, the record must provide

meaningful appellate review and demonstrate that only one outcome would have

been possible at trial. Id. at 645.

A-1006-23 64 The Court thus held that the harmless constitutional error doctrine applies

to Erlinger violations provided that "the relevant facts are undisputed, the

sentencing court's reasoning fully articulated, and the record demonstrates,

beyond any reasonable doubt, the sole conclusion a jury could have reached had

Erlinger been in place at the time of sentencing." Id. at 644. Applying that test,

the Court found the constitutional error in that case was harmless beyond a

reasonable doubt. Id. at 645.

Here as in Carlton, we are satisfied the constitutional error in this case is

harmless beyond a reasonable doubt. First, the relevant facts are undisputed.

The State presented evidence that defendant was convicted of two separate

crimes in Connecticut on separate dates in 2015, and again in 2017, that were

equivalent to indictable crimes under New Jersey law. During defendant's

sentencing hearing, his counsel acknowledged and did not dispute those prior

offenses. Moreover, the sentencing court's reasoning was fully articulated.

Defendant did not object to the form of the evidence presented to the

sentencing court. Nor did defendant dispute the validity or accuracy of the

predicate facts presented by the State. Based on the uncontested documentary

evidence, the sentencing court made all required findings to establish eligibility

for an extended term under N.J.S.A. 2C:44-3(a).

A-1006-23 65 Applying the Carlton harmless constitutional error rule, we therefore

conclude that the State has established beyond any reasonable doubt that

defendant has prior convictions that make him eligible for an extended term, and

that the sole conclusion a jury could have reached is that defendant is eligible to

be sentenced as a persistent offender as defined in N.J.S.A. 2C:44-3(a).

Accordingly, as in Carlton, the Erlinger violation in this case is harmless

constitutional error.

B.

As for defendant's other sentencing arguments, first, he argues "the judge

plainly misstated the applicable sentencing range when he declared it to be

'between twenty years and life,'" and because of that misunderstanding, the court

was "immediately . . . off on the wrong track" insofar as its calculation of a

midpoint.

Once the decision has been made that the N.J.S.A. 2C:44-3 criteria renders

the defendant eligible for an extended term, the range of available sentences runs

from the bottom of the ordinary term to the top of the extended term. State v.

Pierce, 188 N.J. 155, 168 (2006). Thus, defendant is correct that the judge erred

when he said the applicable sentencing range was between twenty years and life.

The actual sentencing range was between ten years and life. Despite this

A-1006-23 66 misstatement, however, the judge's calculations were correct. The midpoint

between ten and seventy-five is forty-two and a half—which is the number the

judge ultimately used in arriving at his sentencing decision. Therefore,

defendant was not prejudiced by the judge's misstatement, especially

considering defendant was sentenced to a thirty-six-year term, well below the

midpoint.

Finally, defendant argues that the court impermissibly double counted

when it relied on defendant's prior convictions to establish extended -term

eligibility and aggravating factors three, six, and nine. As demonstrated in the

record, however, in finding that aggravating factors three, six, and nine applied,

the court considered defendant's entire record and not just the offenses

supporting his extended-term eligibility. The court properly considered

defendant's age, nature of his prior offenses, and personal circumstances in

rendering its decision. We are thus unpersuaded that the court engaged in

impermissible double counting.

To the extent we have not specifically addressed them, any remaining

arguments raised by defendant lack sufficient merit to warrant discussion. R.

2:11-3(e)(2).

Affirmed.

A-1006-23 67