State of New Jersey v. Michael Langston

• Court: New Jersey Superior Court Appellate Division
• Decided: November 8, 2024
• Docket: A-3437-21
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3437-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LANGSTON, a/k/a ROYCE WEAL, MICHAEL LANGSTON, JR., ROYCE WEA JOHN DOE, ROYCE AKA WEAL, and ERIC SIMMONS,

Defendant-Appellant. _________________________

Argued March 6, 2024 – Decided November 8, 2024

Before Judges Accurso, Vernoia and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 20-01-0050.

Nadine Kronis, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Nadine Kronis, of counsel and on the briefs). Regina M. Oberholzer, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.

Defendant Michael Langston appeals from his convictions for aggravated

assault and possessory weapons offenses and aggregate sixteen-year sentence.

He claims the court erred by allowing two witnesses to identify him at trial as

the perpetrator of the offenses, failing to properly instruct the jury on the

inherent unreliability of in-court identifications, depriving him of his right to

confront witnesses against him, and imposing an excessive and otherwise

incorrect sentence. Having considered the record, the parties' arguments, and

the applicable legal principles, we affirm defendant's convictions, vacate his

sentence, and remand for resentencing.

I.

The charges against defendant arise out of an October 14, 2019 incident

on State Street in the City of Camden. Although conflicting versions of what

occurred were presented at trial, there is no dispute there was a physical

altercation on the street during which Joe Carrillo was shot in the back. Carrillo

later reported the shooter had also pointed a handgun at his cousin, Hassan

A-3437-21 2 Payne. Defendant was at the scene of the altercation. When police arrived in

response to a report of a shooting, defendant was present, injured, required

medical attention, and was taken by police to the same hospital where Carrillo

had been transported for the gunshot wound.

Within three hours of the shooting, police had identified defendant as the

suspected shooter and conducted separate photo-array identification procedures

with Carrillo and Carrillo's girlfriend's son, Naim Jackson, who had also been

present during the incident. Carrillo's identification procedure took place at the

hospital. Jackson's identification procedure took place at the Camden Police

Department Administration building.

Different detectives, neither of whom had knowledge of the investigation

or defendant's identification as a suspect, conducted the procedures. During the

separate procedures, Carrillo and Jackson each selected defendant's photograph

from the arrays and identified him as the shooter. The documents associated

with the presentation of the arrays reflect the identification procedures had been

recorded, but the State was later unable to locate the recordings.

A grand jury returned an indictment against defendant charging him with:

second-degree aggravated assault of Carrillo, N.J.S.A. 2C:12-1(b)(1) (count

one); fourth-degree aggravated assault of Carrillo by pointing a handgun at him,

A-3437-21 3 N.J.S.A. 2C:12-1(b)(4) (count two); fourth-degree aggravated assault of Hassan

Payne by pointing a handgun at him, N.J.S.A. 2C:12-1(b)(4) (count three);

possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count

four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count five);

unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f)(1) (count six);

third-degree receiving stolen property, a handgun, N.J.S.A. 2C:21-7(a); and

second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1).

Prior to trial, defendant moved to suppress Carrillo's and Jackson's out-

of-court identifications during the photo-array procedures on the day of the

shooting. The court conducted a Wade/Henderson 1 hearing on the motion.

Camden County Police Department Detective Brian Ford testified about his

administration of the photo-array to Jackson, Carrillo testified concerning the

photo-array identification procedure that had been administered to him; and

Camden County Police Department Detective Andrew Einstein testified about

his involvement in the investigation of the shooting, his assembly of the

photographs for inclusion in the separate photo arrays, and his interactions with

1 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A Wade-Henderson hearing is a pretrial hearing at which the court assesses the reliability of eyewitness identification procedures to determine the admissibility of a witness's identification of a defendant. See generally Henderson, 208 N.J. at 288-96. A-3437-21 4 the detectives who had conducted the photo-array identification procedures with

Carrillo and Jackson.

Carrillo testified he had seen the person—defendant—who had shot him

prior to the incident on numerous occasions. More particularly, he explained he

had seen defendant walking past his home "every other day" and previously had

said "hi or whatever" to defendant as he had passed by. Carrillo testified he had

seen defendant "over [thirty]" times prior to the incident.

The prosecutor asked Carrillo if he saw in the courtroom "the person who

[had] shot him . . . ?" Defendant did not object to the question. Carrillo

responded in the affirmative, and the prosecutor asked, without objection, if

Carrillo could point out the person and describe what the person was wearing.

Carrillo then made an in-court identification of defendant, pointing at defendant

and describing what he wore.

Following the presentation of the testimony and after hearing argument,

the court reserved decision and later rendered a detailed and thorough opinion

from the bench. After briefly describing the circumstances giving rise to the

shooting, the court noted defendant had satisfied the threshold for a hearing on

the admissibility of the out-of-court identifications because the State was unable

to locate the recordings of the photo-array identification procedures, see State

A-3437-21 5 v. Anthony, 237 N.J. 213, 228-29 (2019), and that defendant therefore bore the

burden of demonstrating a very substantial likelihood of irreparable

misidentification to bar admission of the identification under the standard

directed by our Supreme Court in Henderson, 208 N.J. at 289.

The court then summarized the testimony of the witnesses presented and

found each to be credible. The court found the State had established there had

been no flaws in the system variables pertinent to a determination of whether

the photo-array procedures had been suggestive. See id. at 289-90. The court

concluded the evidence demonstrated "two properly administered arrays" and

"absolutely no misconduct on the part of law enforcement." The court further

found the out-of-court identifications were the product of "[e]ight randomly

sequenced photos that were in two arrays that were administered by detectives

not involved in the investigation." The court further observed that Carrillo and

Jackson had not been told that defendant was included in the arrays "nor

influenced in their selection of the photos identifying defendant."

The court further addressed the estimator variables pertinent to a

determination of the reliability of an identification procedure under Henderson.

Id. at 291-92. The court made findings as to the estimator variables and

concluded "on both a qualitative and quantitative basis, the[] factors ultimately

A-3437-21 6 weigh heav[ily] in favor of [the] reliability" of the out-of-court identifications.

The court concluded that defendant therefore had failed to prove even a

"likelihood of irreparable misidentification, let alone a substantial likelihood of

one" that is required under Henderson. Id. at 289. The court denied defendant's

suppression motion and the matter proceeded to trial.

Carrillo testified at trial that on October 14, 2019, he had been sitting on

the porch of his State Street home with his fiancée and his cousin, Hasan Payne.

He had seen "[a] group of guys walking up the street," "starting trouble with

people." More particularly, Carrillo testified a group of "about five" guys had

approached his neighbor, whom he knew as "Boo-Boo," as if they were going to

"jump" him. Payne then followed the group up the street to prevent them from

"jump[ing]" Boo-Boo, and when Payne returned, the same group had followed

and then surrounded him.

According to Carrillo, during an ensuing physical altercation between the

members of the group, and him and Jackson, he observed a "guy pull a gun out"

from his hoodie and point it at Payne. Carrillo testified he believed Payne's "life

was in danger," so he "spinned" [sic], "took the bullet" in his back and

simultaneously "punched the [shooter] and knocked him out."

A-3437-21 7 When asked for clarification, Carrillo explained he had spun around and

had been shot in the back while punching and knocking out the shooter. He also

explained that after he had been shot, he "had two of [his] neighbors put" the

revolver that had been used to shoot him "in the flowerpot to give it to the

police." Carrillo also testified the shooter—defendant—remained unconscious

until police arrived at the scene and transported defendant to the same hospital

at which he was treated for the gunshot wound.

At trial, the State did not ask Carrillo about his prior identification of

defendant during the photo-array identification procedure that had been the

subject of the Wade/Henderson hearing. And he did not otherwise mention the

procedure or that prior identification of defendant. The prosecutor instead asked

Carrillo if he saw the person who had shot him "in the courtroom today?"

Carrillo replied in the affirmative and identified defendant by pointing at him.

Defendant did not object to the prosecutor's question or to Carrillo's in-court

identification.

Jackson testified at trial that he is the son of Carrillo's fiancée and lived

with his mother and two sisters, Carrillo, and Payne on State Street. He further

testified he had been present when the shooting occurred. Jackson explained

that a group had surrounded Payne, a fight ensued, and he and Carrillo had

A-3437-21 8 "stepped into it." He testified that a man wearing a blue hoodie shot Carrillo

and the shooter's face "was messed up" and bleeding after the fight. Jackson

testified he had seen the gun "[f]or a quick moment" and the shooter had held it

in his right hand. He also testified, "I saw him pull out the gun and shoot"

Carrillo.

When asked if he saw in the courtroom the person who had fired the shot,

Jackson without objection responded in the affirmative. Asked to point out the

person who had fired the shot, Jackson made an in-court identification of

defendant, again without objection.

On cross-examination, defense counsel asked Jackson what

"observations" he had made of the shooter's face. Jackson said he could not

remember. Defense counsel also asked Jackson about a statement he had

provided to Detective Einstein about the incident, suggesting Jackson had told

the detective he had not seen defendant's face at the time of the shooting.

Jackson replied that he did not recall saying that to the detective and testified he

"did see [defendant's] face" during the shooting. Detective Einstein was not

called to testify at trial and the purported statement referred to by defense

counsel during cross-examination was not admitted in evidence.

A-3437-21 9 Former Camden County Police Department Officer Robert Stires testified

that on October 14, 2019, he was dispatched to State Street and when he arrived

at the scene there was "commotion everywhere" and an "unidentified woman"

"flagged [him] down" saying "the gun's over here" while pointing to a flowerpot.

Officer Stires "took the firearm" back to his patrol car and "emptied out the

ammunition . . . and [a] spent shell casing." He then returned to the scene to see

if anyone had been injured. Seeing that an individual had been shot, he

transported the injured person, who other evidence established was Carrillo, to

the hospital.

The State also presented evidence that the police had collected defendant's

clothing after transporting him to the hospital. The right sleeve of a long-sleeved

shirt defendant had worn later tested positive for gunshot residue.

The State also presented evidence that the gun that had been recovered

from the flowerpot contained one discharged round of ammunition and other

live rounds of ammunition. In addition, the State presented evidence that the

surface of the gun, including its handle, barrel, and trigger had been swabbed

for DNA.

Forensic scientist Katheryne Meakim testified defendant was the source

of DNA that had been recovered from the gun. When asked for clarification

A-3437-21 10 about what she had meant in stating defendant was the "the source" of the DNA,

Meakim testified:

The source is our threshold of identity. When we're willing to say it is the source, we feel the profile is rare enough that we don't expect anyone else in the population to have the same profile. Studies have been done to determine that threshold. World population is about [seven] billion, so the threshold is set at [seven] trillion. So, statistically, we would need the population of a thousand earths to be able to expect to see this DNA profile to occur a second time.

Defendant called his son, Rayquan Morton, as a witness. Morton testified

he had asked his father to walk with him down State Street because defendant

had feared Morton would be jumped. Morton explained that as they walked past

Carrillo and others, a fight started. According to Morton, while "everybody was

fightin[g,]" "a baldheaded guy with glasses on" went into a house, returned to a

porch, and shot at him. He testified he saw another person "trying to shoot" and

had heard two shots fired by the bald man, one of which grazed him as he fled

the scene on foot. Morton testified that he was wearing a blue coat but could

not remember what his father had worn that day. Morton therefore

acknowledged that defendant was present at the scene and participated in the

fight during which Carrillo had been shot.

A-3437-21 11 The jury convicted defendant of second-degree aggravated assault on

Carillo (count one) but found defendant not guilty of fourth-degree aggravated

assault by pointing a handgun at Carrillo (count two). The jury found defendant

guilty of aggravated assault by pointing a handgun at Payne (count three),

possession of a weapon for an unlawful purpose (count four), unlawful

possession of a weapon (count five), and, following a separate trial, certain

persons not to possess a weapon (count eight). The jury found defendant not

guilty of unlawful possession of hollow-nose bullets (count six). At the State's

request the court had dismissed count seven, receiving stolen property, during

trial.

At sentencing, the court found aggravating factors three, the risk that

defendant will re-offend, N.J.S.A. 2C:44-1(a)(3); six, the extent and seriousness

of defendant's offense history, N.J.S.A. 2C:44-1(a)(6); and nine, the need to

deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The

court found mitigating factor eight, defendant's conduct was the result of

circumstances unlikely to reoccur, N.J.S.A. 2C:44-1(b)(8). The court denied the

State's motion to impose an extended term pursuant to N.J.S.A. 2C:44-3, even

though defendant otherwise qualified as a persistent offender under subsection

(a) of the statute.

A-3437-21 12 The court merged defendant's conviction for fourth-degree aggravated

assault by pointing a handgun at Payne (count three) with his conviction for

second-degree aggravated assault on Carrillo (count one) and imposed on count

one an eight-year sentence subject to the requirements of the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2. The court also merged count five, charging

unlawful possession of a weapon, with count four, charging possession of a

weapon for an unlawful purpose, and imposed an eight-year sentence on count

four subject to the requirements of the Graves Act, N.J.S.A. 2C:43-6. The court

also imposed an eight-year sentence subject to the requirements of the Graves

Act on count eight, charging certain persons not to possess a weapon, to run

concurrent to the sentence imposed on count four. The court further directed

that the eight-year sentence on count one would be served consecutively to the

concurrent sentences imposed on counts four and eight.

In sum, the court imposed an aggregate sixteen-year sentence, half of

which is subject to the Graves Act and the other half of which is subject to

NERA. This appeal followed.

Defendant presents the following points for our consideration:

POINT I

ALTHOUGH THE KEY ISSUE AT TRIAL WAS IDENTITY, THE TRIAL COURT IMPROPERLY

A-3437-21 13 PERMITTED CARRILLO'S AND JACKSON'S IN- COURT IDENTIFICATIONS AND FAILED TO INSTRUCT THE JURY ON THE INHERENT UNRELIABILITY OF IN-COURT IDENTIFICATIONS.

A. The Wade[-Henderson] Hearing[.]

B. Carrillo's in-court identification was inadmissible.

C. The State presented no evidence of Naim Jackson's ability to observe the shooter at the Wade[-Henderson] hearing, and his trial testimony revealed he did not recall the shooter's face; therefore, Jackson's in-court identification was not based on his memory of the incident and was thus inadmissible.

D. The court's failure to give jurors the tools to assess the reliability of the in-court identifications and to specifically caution them regarding the inherent suggestiveness of in-court identifications was plain error.

E. In a weak case in which the only issue was identity, the wrongful admission of the identifications and the inadequate jury instructions were reversible error, individually and cumulatively.

POINT II

[OFFICER] ARTHUR'S TESTIMONY THAT WHEN HE ARRIVED ON THE SCENE, A "LARGE CROWD" OF PEOPLE — NONE OF WHOM TESTIFIED AT TRIAL — WERE BEATING THE DEFENDANT AND SHOUTING THAT HE WAS THE SHOOTER WAS A CLEAR VIOLATION OF HIS CONFRONTATION CLAUSE RIGHTS, REQUIRING REVERSAL.

A-3437-21 14 POINT III

THE PROSECUTOR MISLED THE JURY BY MISCHARACTERIZING COMPLEX DNA EVIDENCE CENTRAL TO THE STATE'S CASE AND MADE INFLAMMATORY STATEMENTS IN SUMMATION, DEPRIVING [DEFENDANT] OF A FAIR TRIAL.

A. [Defendant]'s convictions must be reversed because the prosecutor unfairly bolstered the State's case by severely mischaracterizing the DNA evidence.

B. The prosecutor's inflammatory valorization of the police, the victim, and his own office deprived [defendant] of a fair trial.

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS ABOVE WARRANTS REVERSAL.

POINT V

REMAND FOR RESENTENCING IS REQUIRED.

A. The trial court erred by failing to merge aggravated assault (Count 1) with possession of a weapon for an unlawful purpose (Count 4) where the only unlawful purpose charged was aggravated assault.

B. The court erred by imposing a consecutive sentence for possessing the weapon used to commit aggravated assault.

C. The court failed to properly identify and weigh the aggravating and mitigating factors.

A-3437-21 15 Defendant raises the following additional points in his reply brief:

DESPITE THE STATE'S CLAIM TO THE CONTRARY, JOE CARRILLO'S IN-COURT AND OUT-OF-COURT IDENTIFICATIONS WERE BOTH CHALLENGED.

THERE WAS A VERY HIGH RISK THAT THE TWO UNRELIABLE IDENTIFICATION PROCEDURES TAINTED CARRILLO'S IN-COURT IDENTIFICATION, AND THAT IT LACKED ANY INDEPENDENT BASIS IN CARRILLO'S MEMORY OF THE INCIDENT.

A. Both the unreliable photo array and the show-up identification procedure at the Wade[-Henderson] hearing tainted Carrillo's in-court identification.

B. State v. Watson [2] and State v. Burney [3] make clear that Carrillo's passing familiarity with [defendant] is not an independent basis for Carrillo's in-court identification, and neither Carrillo nor Jackson had an adequate opportunity to view the shooter prior to the shooting[.]

POINT III

THE STATE DID NOT MEET ITS BURDEN OF DEMONSTRATING THAT THE ANONYMOUS CROWD'S STATEMENT INCRIMINATING

2 State v. Watson, 254 N.J. 558 (2023). 3 State v. Burney, 255 N.J. 1 (2023). A-3437-21 16 [DEFENDANT] WAS AN EXCITED UTTERANCE, THE TESTIMONIAL STATEMENT VIOLATED [DEFENDANT]'S CONFRONTATION CLAUSE RIGHTS, AND THE TRIAL COURT'S FAILURE TO STRIKE IT FROM THE RECORD REQUIRES REVERSAL.

THE COURT APPROPRIATELY MERGED [DEFENDANT]'S CONVICTIONS ON COUNTS ONE AND THREE.

II.

Defendant argues that Carrillo's and Jackson's in-court identifications of

defendant were improperly admitted at trial. Defendant contends the court first

erred by determining at the Wade/Henderson hearing that Carrillo's and

Jackson's out-of-court identifications during their respective photo-array

procedures were admissible at trial. For the first time on appeal, he contends

the photo-array procedures had impermissibly tainted Carrillo's and Jackson's

in-court identifications of defendant at trial, Carrillo's in-court identification

during the Wade/Henderson hearing constituted an impermissible show-up

identification procedure that tainted his later in-court identification of defendant

at trial, Carrillo's and Jackson's in-court identifications of defendant at trial

constituted unduly suggestive identification procedures, and the court failed to

A-3437-21 17 adequately instruct the jury on how to assess the trustworthiness of the two in -

court identifications at trial.

As we have explained, although the court had determined following the

Wade/Henderson hearing that evidence concerning Carrillo's and Jackson's out-

of-court identifications of defendant during their respective photo-array

identification procedures was admissible at trial, the State did not present

evidence of those identifications at trial. Defendant nonetheless challenges the

court's ruling that those out-of-court identifications were admissible because he

otherwise argues they tainted Carrillo's and Jackson's in-court identifications

and, for that reason, the in-court identifications at trial had been improperly

admitted.

We consider on appeal a court's order admitting an out-of-court

identification in the same manner we "review a trial court's findings in any non-

jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). Factual

findings are accorded deference because they "are substantially influenced by

[the trial court's] opportunity to hear and see the witnesses and to have the 'feel

of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J.

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). A trial

court's determination that an identification procedure was reliable should not be

A-3437-21 18 disturbed as long as it is supported by sufficient credible evidence. State v.

Adams, 194 N.J. 186, 203 (2008); State v. Locurto, 157 N.J. 463, 470-71 (1999).

Our review of a court's legal conclusions and application of the facts to the law

is de novo. State v. Gamble, 218 N.J. 412, 425 (2014).

We are not persuaded by defendant's claim the court erred in the first

instance by determining at the Wade/Henderson hearing that Carrillo's and

Jackson's out-of-court identification of defendant during their respective photo-

array procedures were admissible. To obtain a pretrial hearing challenging an

out-of-court identification, a defendant "has the initial burden of showing some

evidence of suggestiveness that could lead to mistaken identification."

Henderson, 208 N.J. at 288. The court determined that burden had been satisfied

because the State was unable to locate the recordings of the photo-array

proceeding. See Anthony, 237 N.J. at 233-34 (holding a defendant is entitled to

a Wade/Henderson hearing if no electronic or contemporaneous, verbatim

recording of an identification procedure was made or provided).

At the hearing, the State was required "to offer proof to show that the

proffered eyewitness identification[s]" were "reliable—accounting for system

and estimator variables—subject to the" caveat that the court could have

"end[ed] the hearing at any time if it [had found] from the testimony that

A-3437-21 19 defendant's threshold allegation of suggestiveness [was] groundless."

Henderson, 208 N.J. at 289. To obtain an order barring admission of the out-of-

court identifications obtain during the photo-array procedures, defendant bore

the "ultimate burden" of "prov[ing] a very substantial likelihood of irreparable

misidentification." Ibid.

In support of his assertion the court erred by determining Carrillo's and

Jackson's out-of-court identifications were admissible, defendant claims the

evidence showed Carrillo's identification during the photo-array procedure was

unreliable because he was in the hospital and in and out of consciousness at the

time. To be sure, there was testimony that Carrillo was in the hospital, had

received medications, and had at times lost consciousness after he was shot, but

Carrillo otherwise testified he was conscious when he viewed the photo-array,

had read and signed the photo-array procedure form he had been provided by

the police, and had selected defendant's photo and identified defendant as the

shooter.

The court considered the evidence presented, determined Carillo was

credible, and accepted his version of the manner in which he had been presented

with the photo array, had selected defendant's photograph, and had identified

defendant as the shooter. Although defendant points to evidence he contends

A-3437-21 20 undermines the court's findings, we are satisfied court's findings of fact are

amply supported by sufficient evidence the court deemed credible. We therefore

affirm the court's order denying defendant's motion to suppress Carrillo's out-

of-court identification.

We also affirm the court's denial of defendant's motion to suppress

Carrillo's out-of-court identification for two separate but equally dispositive

reasons. First, defendant fails to point to any evidence presented at the

Wade/Henderson hearing that is sufficient to satisfy his ultimate burden of

proving a "very substantial likelihood of irreparable misidentification." Ibid.

That failure alone required the denial of his suppression motion. Ibid.

Second, Carrillo's out-of-court identification of defendant during the

photo-array procedure, conducted within hours of the shooting, constituted a

"confirmatory" identification procedure that "is not considered suggestive."

State v. Pressley, 232 N.J. 587, 592 (2018). "A confirmatory identification

occurs when a witness identifies someone he or she knows from before but

cannot identify by name." Id. at 592-93. The Court has explained that the person

identified "may be a neighbor or someone known only by a street name," id. at

593, and that is precisely what occurred here. Carrillo testified he had seen

defendant more than thirty-times in their neighborhood and had said "hi" to him

A-3437-21 21 on prior occasions. Thus, the court correctly denied defendant's suppression

motion for the independent reason that the photo-array procedure involved a

confirmatory identification of defendant, id. at 592-93, and defendant otherwise

therefore could not, and did not, establish the "very likely likelihood of

irreparable misidentification" required to support the requested suppression of

Carrillo's out-of-court identification during the photo-array procedure.

Henderson, 208 N.J. at 289.

Defendant similarly argues the court erred by denying his motion to

suppress Jackson's out-of-court identification during the photo-array procedure.

The court relied on Detective Ford's testimony describing the manner in which

he had administered the photo-array procedure, addressed the Henderson factors

based on the totality of the circumstances presented, and found no evidence of

suggestiveness in the identification process.4 Again, we defer to the court's

4 We reject defendant's claim the court "conflated" the estimator variables in its analysis of his motion to suppress Jackson's out-of-court identification at the Wade/Henderson hearing by a failing to make a separate findings concerning those factors for purposes of considering defendant's requests to suppress Carrillo's and Jackson's out-of-court identifications. Based on the circumstances presented, and because the unrefuted evidence established that Carrillo and Jackson were present at the identical time, in the same place, and while involved in the same physical altercation during which defendant allegedly pointed the gun at Payne and shot Carrillo, we find no error in the court's findings, all of which are supported by substantial credible evidence, of the estimator factors

A-3437-21 22 findings of fact supporting its determination there was no evidence of

suggestiveness because those findings are supported by sufficient evidence the

court found credible. Moreover, defendant again fails to point to any evidence

presented during the Wade/Henderson hearing satisfying his burden of

establishing the "very substantial likelihood of irreparable misidentification"

that is required for suppression of an out-of-court identification under

Henderson. Ibid. We therefore affirm the court's order denying defendant's

motion to suppress Jackson's out-of-court identification of defendant.

Defendant contends the evidence at trial established there is a very

substantial likelihood of irreparable misidentification in Jackson's out-of-court

identification during the photo-array procedure, and in-court identification at

trial, because there was evidence at trial establishing Jackson did not see

defendant when he pointed the gun at Payne and shot Carrillo. Defendant argues

that in a statement Jackson had provided police following the shooting, he said

he had seen the gun but had not seen the face of the shooter. Defendant therefore

contends Jackson's statement to the police establishes his out-of-court

that applied equally to Carrillo and Jackson. Under those circumstances, the mere fact that the court addressed, assessed, and found the estimator factors that were common to Carrillo's and Jackson's separate identifications does not make the court findings incorrect. A-3437-21 23 identification during the photo-array procedure and his in-court identification at

trial must have been the product of improper suggestiveness sufficient to

demonstrate a very substantial likelihood of irreparable misidentification.

Defendant's argument finds no support in any competent evidence.

Jackson's purported statement to the police—which defendant claims establishes

Jackson had told the police he never saw the shooter's face—was never admitted

in evidence at the Wade/Henderson hearing or at trial. Thus, there is no evidence

Jackson ever made the statement about not seeing the shooters face upon which

defendant's argument solely relies.

During cross-examination, defense counsel referred to the purported

statement, and asked Jackson if he had said "no" to the police when asked if he

had seen the shooter's face "at all." Defendant's response was "I don't recall

that. I did see his face." No record of the Jackson's putative prior statement was

introduced in evidence, and the purported facts woven into defense counsel's

question do not constitute evidence. There is no admission by Jackson that he

had previously informed the police he did not see the shooter's face, and the only

competent evidence concerning whether Jackson had seen the shooter's face was

his affirmative testimony that he had. Thus, defendant's claim the trial evidence

established Jackson said he had never seen the shooter's face and, for that reason,

A-3437-21 24 his out-of-court and in-court identification of defendant was the product of "a

substantial likelihood of irreparable misidentification" finds no evidential

support in the record.

Defendant also argues that: Carrillo's in-court identification of defendant

at the Wade/Henderson hearing constituted an unduly suggestive identification

procedure and the procedure tainted Carrillo's subsequent in-court identification

of defendant at trial; Carrillo's in-court identification of defendant at trial

constituted a separate unduly suggestive identification procedure; and Jackson 's

in-court identification of defendant at trial separately constituted an unduly

suggestive identification procedure that had further been tainted by his

participation in what defendant claims was Jackson's participation in the unduly

suggestive prior photo-array identification procedure. We are not persuaded.

In the first instance, although defendant's initial motion to suppress

Carrillo's and Jackson's out-of-court identifications during their separate photo-

array procedures also sought suppression of Carrillo's and Jackson's anticipated

in-court identifications of defendant, the requested suppression of the

anticipated in-court identifications in that motion was based solely on the claim

that the out-of-court photo-array identification procedures were unduly

suggestive. As we have explained, we reject that argument for same reason as

A-3437-21 25 the motion court—at the Wade/Henderson hearing defendant failed to carry his

burden of establishing "a very substantial likelihood of irreparable

misidentification," Henderson, 208 N.J. at 289, during the photo-array

identification procedures and, as a result, based on the arguments defendant had

presented to the trial court, there were no grounds permitting or requiring the

suppression of both the out-of-court photo-array identifications and the

anticipated in-court—at trial—identifications.

On appeal, defendant presents different arguments based on different

circumstances he never presented to the trial court. He contends the in-court

identifications were improperly admitted at trial not only because the court erred

by denying the prior suppression motion, but also because the process by which

Carrillo made the in-court identification at the Wade/Henderson hearing

constituted a distinct impermissibly suggestive identification procedure that also

tainted Carrillo's subsequent in-court identification at trial. Defendant also

argues for the first time that the process—the State's requests that they identify

in court the person who had shot Carrillo—by which Carrillo and Jackson made

their identifications at trial also constituted purported impermissibly suggestive

identification procedures that should not have been permitted at trial.

A-3437-21 26 Defendant did not object during the Wade/Henderson hearing to the

State's request that Carrillo identify the person who had shot him. Defendant

did not argue that in making the request, the State had engaged in an

impermissibly suggestive identification procedure that would taint all future

identifications by Carrillo of the individual who had fired a bullet into his back.

Defendant also did not object at trial to the State asking Carrillo and

Jackson if they saw the shooter in the courtroom and requesting they identify

the shooter if they saw the person in the courtroom. Defendant further did not

object to Carrillo's and Jackson's responses to the State's inquiries and requests

by identifying defendant as the shooter. Defendant did not move before the trial

court to exclude the identifications based on any claim—like the one he makes

now for the first time on appeal—that asking the witnesses to identify the

shooter in the courtroom during trial constituted an impermissibly suggestive

identification procedure. 5

5 We observe that Carrillo's and Jackson's in-court identifications of defendant at trial did not constitute "first-time identifications" of defendant. Watson, 254 N.J. at 587-89. As noted, Carrillo and Jackson had separately identified defendant within a few hours of the shooting during their respective photo-array identification procedures, and Carrillo had also identified defendant without objection during the Wade/Henderson hearing. We also note that Carrillo's identification of defendant constituted a "confirmatory identification" because he knew defendant from seeing him in their neighborhood, greeting him on

A-3437-21 27 Although we may consider allegations of error not brought to the trial

judge's attention, we need not do so. Generally, we will not consider such issues,

even if of constitutional dimension, unless they go to the jurisdiction of the trial

court or concern matters of substantial public interest. State v. Vicenty, 237

N.J. 122, 135 (2019); State v. Galicia, 210 N.J. 364, 383 (2012); State v.

Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005);

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Defendant's newly minted arguments do not go to the jurisdiction of the

trial court or concern matters of substantial public interest. And defendant's

failure to raise before the trial court his new claims that Carrillo's in-court

identification of defendant at the Wade/Henderson hearing tainted his later in-

court identification of defendant and the identifications of defendant made by

Carrillo and Jackson at trial were the product of an unduly suggestive in-court

identification procedures, deprived the trial court "of an opportunity to take

occasion, and seeing him more than thirty-times prior to the shooting. Moreover, although identification of defendant was a central issue at trial, the State's proof defendant was the shooter was not dependent on Carrillo 's and Jackson's in-court identifications. The State's evidence otherwise established defendant's DNA was found on the gun used during the shooting, a long-sleeve shirt taken from defendant following the shooting had gun-shot residue on its right sleeve, and the evidence otherwise established the shooter had held the gun in his right hand. Additionally, defendant was found by the police at the scene suffering from injuries. A-3437-21 28 curative action," see State v. Frost, 158 N.J. 76, 84 (1999), and to develop the

record necessary to allow it to address those claims, see, e.g., State v.

Washington, 256 N.J. 136, 166 (2024) (explaining "defendants may seek a

pretrial hearing to determine whether a witness's identification evidence will be

admitted at trial"); Watson, 254 N.J. at 588 (explaining "if a hearing is needed

to determine admissibility" of a first-time in-court identification of a defendant,

the hearing "should be conducted and resolved before the start of trial"). We

are therefore without the necessary record on which defendant's new claims may

be properly considered for the first time on appeal. For those reason, we decline

to address the merits of defendant's arguments that are raised for the first time

here.6 Vincenty, 237 N.J. at 135; Robinson, 200 N.J. at 20-22.

We also reject defendant's claim the court erred by failing to instruct the

jury on the alleged inherent suggestiveness of in-court identifications.

6 Although unnecessary to our decision not to address the merits of defendant's newly asserted claims, we are not persuaded admission of the in-court identifications at trial were clearly capable of producing an unjust result. R. 2:10-2. For the reasons already expressed, Carrillo's and Jackson's in-court identifications of defendant at trial did not constitute "first-time identifications," see generally Watson, 254 N.J. at 583-89, Carrillo's identification of defendant constituted a "confirmatory identification," see Pressley, 232 N.J. at 592-93, and defendant's identification as the shooter was otherwise separately established through the DNA and gun-shot-residue evidence and defendant's undisputed presence at the scene of the shooting. A-3437-21 29 Defendant did not object at trial to the court's jury instructions or request that

the court include the charge he now contends the court should have provided.

We therefore review defendant's arguments under the plain error standard. State

v. Cooper, 256 N.J. 593, 607 (2024).

"Regarding a jury instruction, 'plain error requires demonstration of

'"legal impropriety in the charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a clear capacity to

bring about an unjust result."'" State v. Montalvo, 229 N.J. 300, 321 (2017)

(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). We find no such error

here.

Although "[a] trial court has an 'independent duty to . . . ensure that the

jurors receive accurate instructions on the law as it pertains to the facts and

issues of each case, irrespective of the particular language suggested by either

party," Cooper, 256 N.J. at 608 (quoting State v. Reddish, 181 N.J. 553, 613

(2004)), defendant ignores that he did not argue before the trial court or jury that

Carrillo's in-court identification during the Wade/Henderson hearing tainted his

in-court identification at trial or that Carrillo's and Jackson's in-court

identifications at trial were the product of purported unduly-suggestive trial

A-3437-21 30 procedures. Thus, defendant offered no basis at trial to support or require a jury

instruction on the alleged taint created by Carrillo's in-court identification

during the Wade/Henderson hearing or the alleged suggestiveness of the in-court

trial identifications. The court therefore had no reason based on the record

before it to instruct the jury in the manner defendant now claims the court should

have.

We also reject defendant's challenge to the jury instructions because his

failure to object at trial supports a presumption "that the charge was not error

and was unlikely to prejudice . . . defendant's case." Montalvo, 229 N.J. at 320

(quoting State v. Singleton, 211 N.J. 157, 182 (2012)). We also find no evidence

the court's instruction on identification, provided in strict accordance with

Henderson's requirements as set forth in the model jury charge, Model Jury

Charges (Criminal), "Identification: In-Court Identification Only" (Rev. July

19, 2012), was insufficient or inadequate to properly advise the jury as to the

manner in which it should assess the identification evidence presented based on

the issues surrounding identification presented by the parties during the trial.

We further note the State did not present any evidence at trial that Carrillo

and Jackson had previously identified defendant in the out-of-court photo-array

procedures or that Carrillo had identified defendant during the Wade/Henderson

A-3437-21 31 hearing. Defendant also did not present any evidence concerning those

identifications, mention them during cross-examination of the State's witness,

or make arguments based on them during summation. Of course, to have done

so would have resulted in the presentation of evidence that Carrillo and Jackson

had separately identified defendant as the shooter within a short-time of the

incident, and that evidence would have further supported the State's case.

Because there was no evidence presented at trial concerning Carrillo's and

Jackson's prior identifications of defendant as the shooter, defendant's argument

that the court erred by failing to instruct the jury about the purported taint those

identifications allegedly had on the in-court trial identifications is undermined

by the record. Most simply stated, the trial record lacked any evidence

supporting that instruction because there was no evidence presented concerning

those prior identifications.

Carrillo's and Jackson's in-court trial identifications were the only

identifications of defendant before the jury, and the court instructed the jury

without objection as to the manner in which those identifications should be

considered. Because defendant had not argued that those identifications resulted

from unduly suggestive identification procedures, and because there was no

evidence concerning the prior identifications made by Carrillo and Jackson, the

A-3437-21 32 court was without any basis in the record to stray from the model jury instruction

on in-court identifications for the purpose of addressing issues never raised by

the parties. See generally State v. Cotto, 471 N.J. Super. 489, 543 (App. Div.

2022) ("[A] jury charge is presumed to be proper when it tracks the model charge

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

thorough.'" (quoting State v. R.B., 183 N.J. 308, 325 (2005))). We therefore

reject defendant's claim he is entitled to reversal of his convictions based on any

alleged error in the court's instruction to the jury on identification.

III.

Defendant also argues that his convictions must be reversed because his

right to confront witnesses against him was violated at trial during testimony

presented by Camden County Metro Police Department Officer Christopher

Arther. Officer Arthur testified that he had responded to the report of a fire near

the incident in which Carrillo was shot and then responded to the nearby scene

of the shooting. He testified that when he arrived at the scene of the shooting,

he observed a "large crowd" fighting that included a group of individuals

"beating on a male who was bleeding profusely . . . people were pointing to

him . . . saying that he had shot someone."

A-3437-21 33 Defense counsel immediately objected to the testimony. And the court

stated, "All right. The objection is sustained." The court then addressed counsel

at sidebar and instructed the officer not to refer to defendant as a suspect and

not to refer to Carrillo as the victim. The officer later identified defendant as

the individual he had seen bleeding and explained he had transported defendant

to the hospital for treatment of his injuries.

Defendant argues his rights to a fair trial, to confront witnesses against

him, and to due process were violated because the judge allowed the testimony

about the statements—that defendant had shot someone—that Officer Arthur

had attributed to the individuals near the profusely bleeding defendant, and the

court had not provided a curative instruction concerning the testimony.

The officer's fleeting comment about the statements he attributed to the

unidentified individuals constituted inadmissible hearsay. We are unpersuaded

by the State's claim the statements attributed to the individuals constituted

admissible excited utterances under N.J.R.E. 803(c)(2). To establish the

admissibility of an excited utterance, the proponent of the evidence must

establish: "1) '[a] statement relating to a startling event or condition'; 2) 'made

while the declarant was under the stress of excitement caused by the event or

condition'; and 3) 'without opportunity to deliberate or fabricate.'" State ex rel.

A-3437-21 34 J.A., 195 N.J. 324, 340 (2008) (alteration in original) (quoting N.J.R.E.

803(c)(2)).

The record did not support the admission of Officer Arthur's testimony

about the statement attributed to the individuals standing near the bleeding

defendant. The statements declared defendant had shot someone but the record

is bereft of evidence that any of the unidentified individuals had witnessed the

shooting or that their statements had been made in "under the stress of" the

shooting. There is also no evidence demonstrating the declarants lacked an

opportunity to "deliberate" prior to making the statements or "fabricate" the

statements because, again, the record is devoid of any information concerning

what, if anything, the declarants had seen or when they arrived at the location

of the shooting. In sum, there is no foundation in the record supporting a finding

the statements the officer attributed to the individuals constituted excited

utterances permitting their admission under N.J.R.E. 803(c)(3) as excited

utterances that defendant "had shot someone."

We agree with defendant's contention Officer Arthur's testimony about the

statements, if admitted in evidence, would have violated his rights to confront

witnesses against him. The United States Constitution and the New Jersey

Constitution guarantee defendants the right to confront witnesses and to cross -

A-3437-21 35 examine accusers. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v.

Branch, 182 N.J. 338, 348 (2005). The Confrontation Clause reflects "a

preference for the in-court testimony of a witness, whose veracity can be tested

by the rigors of cross-examination." J.A., 195 N.J. at 342. "Although the Sixth

Amendment does not interdict all hearsay, it does prohibit the use of out -of-

court testimonial hearsay, untested by cross-examination, as a substitute for in-

court testimony." Ibid. (emphasis in original).

In Crawford, the Supreme Court held that the Confrontation Clause bars

from a criminal trial all "testimonial statements of a witness who did not appear

at trial unless [the witness] was unavailable to testify, and the defendant had a

prior opportunity for cross-examination." 541 U.S. at 53-54. "The threshold

issue is . . . whether the proffered statement is 'testimonial.'" State v. Wilson,

227 N.J. 534, 545 (2017). The Court left "for another day any effort to spell out

a comprehensive definition of 'testimonial,'" to trigger Confrontation Clause

scrutiny, but held "it applie[d] at a minimum . . . to police interrogations."

Crawford, 541 U.S. at 68.

Our Supreme Court has explained that "a declarant's narrative to a law

enforcement officer about a crime, which once completed has ended any

'imminent danger' to the declarant or some other identifiable person, is

A-3437-21 36 testimonial." J.A., 195 N.J. at 348 (quoting Davis v. Washington, 547 U.S. 813,

827-28 (2006)). That is precisely the situation here. As explained by Officer

Arthur, the statements about which he testified were offered by individuals

following the commission of a crime—the shooting—and there is no evidence

the declarants were in imminent danger when they made them. For that reason

alone, the purported statements were testimonial and, if admitted in evidence,

would have violated defendant's confrontation rights. Ibid.

We reject defendant's argument that Officer Arthur's fleeting reference to

the statements provides ground for reversal. The court promptly sustained the

objection to the statements and, as such, correctly denied admission of the

testimony about them in evidence. The court had informed the jury at the outset

of the trial that if it sustained an objection to a question or testimony, that meant

the court had ruled in favor of the attorney making the objection and the

excluded evidence "is not evidence and must not be considered by [the jury] in

[its] deliberations." We "must assume that the jury followed the instructions

delivered by the trial court," State v. Marshall, 173 N.J. 343, 355 (2002), and

discern no basis in the record supporting a contrary conclusion here.

Defendant contends the court erred by failing to provide a curative

instruction, but he chose not to request one. "When no request for a limiting or

A-3437-21 37 curative instruction is made, defendant must show that the failure to give such

an instruction sua sponte constitutes an error 'clearly capable of producing an

unjust result.'" State v. Mays, 321 N.J. Super. 552, 619 (App. Div. 1999)

(quoting State v. Lofton, 287 N.J. Super. 76, 97 (App. Div. 1996)). Where, as

here, defense counsel objected to the testimony but did not request a curative

instruction, we may infer counsel "made a strategic decision not to draw more

attention to [the] isolated, fleeting comment" and "[w]e owe some degree of

deference to counsel's strategic or tactical decision[]" to not make the request.

Id. at 633.

Based on the circumstances presented, we are persuaded the fleeting

testimony the court excluded by sustaining counsel's objection is not clearly

capable of producing an unjust result and infer that defense counsel made a

strategic decision not to request a curative instruction to avoid highlighting the

objectionable testimony. Moreover, we again note the evidence establishing

defendant's guilt was otherwise substantial. Carrillo and Jackson identified

defendant. There was gunshot residue found on defendant's sleeve. Defendant's

DNA was found on the gun, and defendant was found by the police at the scene

immediately following the shooting. Officer Arthur's brief testimony, which the

A-3437-21 38 court properly excluded, was therefore not clearly capable of producing an

unjust even in the absence of a curative instruction.

IV.

Defendant further argues the prosecutor engaged in misconduct during

opening and closing statements by mischaracterizing the evidence and by

otherwise valorizing Carrillo by calling him a hero and his actions heroic. He

claims the prosecutor's conduct deprived him of a fair trial and requires reversal

of his convictions.

Defendant did not object to any of the prosecutor's comments about which

he now complains. We therefore review the comments under the plain error

standard. See State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).

"Prosecutors are afforded considerable leeway in closing arguments as long as

their comments are reasonably related to the scope of the evidence presented."

Frost, 158 N.J. at 82. However, a prosecutor "must refrain from improper

methods that result in a wrongful conviction." State v. Smith, 167 N.J. 158, 177

(2001).

Prosecutorial misconduct is grounds for reversal only if the conduct was

so egregious that it deprived the defendant of a fair trial. Id. at 181. To deprive

a defendant of a fair trial, the prosecutor's conduct "must have been 'clearly and

A-3437-21 39 unmistakably improper,' and must have substantially prejudiced defendant's

fundamental right to have a jury fairly evaluate the merits of his defense." Id.

at 182 (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)).

We evaluate the challenged remarks in the context of the respective

opening statement and summation as a whole, State v. Atwater, 400 N.J. Super.

319, 335 (App. Div. 2008), and the entire record, State v. Bey, 129 N.J. 557,

620 (1992). That is because "[n]ot every instance of misconduct in a

prosecutor's summation will require a reversal of a conviction. There must be a

palpable impact." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).

And, where there is no objection to a prosecutor's remarks or comments, "it is a

sign 'that defense counsel did not believe the remarks were prejudicial ' when

they were made." Pressley, 232 N.J. at 594 (quoting State v. Echols, 199 N.J.

344, 360 (2009)).

Defendant claims the prosecutor engaged in misconduct by misstating the

evidence concerning the DNA that had been recovered from the gun. During

summation, the prosecutor stated that a detective had testified "he swabbed the

trigger" of the gun when he had recovered the revolver. Defendant contends the

statement was misleading because the detective had testified he swabbed the

entire gun for DNA. The State contends the detective testified he had swabbed

A-3437-21 40 the trigger as one part of the swabbing of the gun he had done and therefore the

prosecutor's statement was accurate and proper.

We find nothing improper about the prosecutor's statement that the

detective testified he had swabbed the trigger of gun. The detective testified he

had swabbed the trigger, even though he also testified he had swabbed other

parts of the gun—the entire gun—as well. The prosecutor did not, however,

state the detective had swabbed only the trigger or that DNA from the trigger

had matched defendant's DNA. And, as the court otherwise had instructed the

jurors, it was their recollection of the testimony on which they were required to

base their decision and not the evidence as argued by counsel.

Defendant similarly argues the prosecutor engaged in misconduct during

summation by stating the State's DNA expert had testified there was a one-in-

seven-trillion probability that the DNA recovered from the gun could be from

someone other than defendant. We reject defendant's argument because the

expert testified that the "World population is about [seven] billion, so that

threshold is set at [seven] trillion. So statistically, we would need a population

of a thousand earths to be able to expect to see this DNA profile to occur a

second time." Thus, the prosecutor's statement that the evidence established a

one-in-seven-trillion chance the recovered DNA came from someone other than

A-3437-21 41 defendant did not constitute misconduct—the prosecutor's statement accurately

reflected the expert's testimony.

Defendant argues the prosecutor misstated the expert's testimony

concerning the one-in-seven-trillion probability by erroneously misapplying

what defendant refers to as "random match probability." We reject the claim

because the DNA expert did not testify concerning random match probability,

the record is devoid of any evidence concerning it or supporting defendant 's

contention, and the prosecutor's statements concerning the probability the DNA

found on the gun could have come from someone other than defendant

constituted fair comment based on the expert's unrefuted testimony.

Defendant also contends the prosecutor misrepresented the DNA evidence

during summation by stating that if the recovered DNA had come from someone

related to defendant, the person would have to have been defendant's biological

twin. Defendant claims the purported misrepresentation impaired the jury's

ability to properly consider defendant's son, Rayquan Morton, as a possible

contributor to the DNA found on the gun.

The argument fails because, contrary to defendant's contention, the DNA

expert testified that "[n]o two people will have the exact same DNA, except for

identical twins" and that the DNA recovered from the gun was defendant's. It

A-3437-21 42 was not misconduct for the prosecutor to rely on that testimony in making his

arguments in summation to the jury.

We agree with defendant that during his opening statement the prosecutor

inappropriately identified Carrillo as a hero and as having acted heroically in

stepping in front of defendant as he pointed the gun at Payne and by citing

Carrillo's and Jackson's bravery during summation. The comments were

inappropriate because they highlighted the victim's and witness's virtues and

were inconsistent with the prosecutor's duty to confine arguments and comments

before the jury to the evidence.

In any event, the challenged comments were fleeting and did not play a

significant role in the prosecutor's comments during his opening or summation.

The prosecutor's opening and closing remarks were otherwise properly focused

on the evidence establishing defendant's guilt. Although we find those few

comments were inappropriate, considering the context in which the statements

were made and the entire trial record, we are convinced defendant has failed to

demonstrate they were sufficiently prejudicial to have been clearly capable of

producing an unjust result. See Smith, 167 N.J. at 181-82. The comments were

not "so egregious that [they] deprived defendant of a fair trial," State v.

A-3437-21 43 Wakefield, 190 N.J. 397, 446 (2007) (quoting Smith, 167 N.J. at 181), and they

therefore do not permit or require reversal of defendant's convictions.

Defendant also challenges his sentence. He argues the court erred by

failing to merge his conviction for possession of a weapon for an unlawful

purpose (count five) with his conviction for aggravated assault (count one),

imposing a consecutive sentence on his possessory-weapons-offense

convictions, and failing to properly find and weigh the aggravating and

mitigating factors under N.J.S.A. 2C:44-1.

We apply a deferential standard to our review to the trial court's

imposition of sentence, State v. Fuentes, 217 N.J. 57, 70 (2014), and are mindful

we "should not 'substitute [our] judgment for those our sentencing courts,'" State

v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)).

We therefore will

affirm the 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.

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

A-3437-21 44 We first address issues related to the court's merger of the offenses for

which the jury convicted defendant. Defendant argues the court erred by failing

to merge his conviction for possession of a weapon for an unlawful purpose

(count four) with his conviction for aggravated assault of Carrillo (count one).

We find, and the State concedes, the court erred by failing to merge count four

and count one because it is well-settled that "[w]hen the only unlawful purpose

in possessing [a weapon] is to use it to commit the substantive offense," the

possessory-weapons charge must merge with the substantive offense. State v.

Tate, 216 N.J. 300, 312 (2013) (alteration in original) (quoting State v. Diaz,

144 N.J. 628, 636, 638-39 (1996)); see also State v. Abril, 444 N.J. Super. 553,

563-64 (App. Div. 2016).

That is the case here. As the State recognizes, the evidence established

defendant's only unlawful purpose in possessing the handgun was to use it to

shoot Carrillo and otherwise point it at Payne. Tate, 216 N.J. at 313; Abril, 444

N.J. Super. at 563-65; see also State v. Smith, 322 N.J. Super. 385, 400 (App.

Div. 1999) (remanding for entry of a "corrected judgement" addressing the

court's error in merging an unlawful-possession-of-a-weapon conviction with an

A-3437-21 45 armed robbery conviction). 7 And, as noted, the court had otherwise merged the

aggravated-assault-by-pointing-the-handgun-at-Payne conviction under count

three with the aggravated-assault-of-Carrillo conviction under count one.

Based on the merger decisions made by the sentencing court, as corrected

in part in this decision, defendant should have been sentenced solely on count

one, aggravated assault on Carrillo, and count eight, certain persons not to

possess a weapon. The court should not have sentenced defendant on count four,

possession of a weapon for an unlawful purpose.

Defendant also challenges the court's weighing of the statutory

aggravating and mitigating factors, see N.J.S.A. 2C:44-1(a) and (b), in its

sentencing analysis. As noted, we will "affirm a sentence unless . . . the

7 The State argues on appeal that the court also erred by merging defendant 's convictions on count three, aggravated assault on Payne, with defendant 's conviction on count one, aggravated assault on Carillo, and by merging count five, unlawful possession of a handgun, with count four, possession of a weapons for an unlawful purpose. We do not address those contentions because they are not properly before us; the State opted not to cross-appeal from defendant's judgment of conviction. State v. Elkwisni, 190 N.J. 169, 175 (2007). We do not, however, preclude the State from raising the issues directly with the trial court on the resentencing that, as we explain, we otherwise order. The court on remand shall address such arguments, if presented on remand, in accordance with the applicable law and rules. Our decision permitting the State to make those arguments on remand shall not be construed as expressing on opinion on the merits of any such arguments presented.

A-3437-21 46 aggravating and mitigating factors found by the sentencing court were not based

on competent and credible evidence in the record." Fuentes, 217 N.J. at 70

(quoting Roth, 95 N.J. at 364-65).

Defendant's claim the court's analysis of the aggravating and mitigating

factors was comprised of a mere statement that it had assessed the factors is

belied by the record. The court's discussion of defendant's extensive prior record

supported its finding of aggravating factors three, the risk of reoffending,

N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record,

N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterrence, seriousness of the

offenses and need to deter, N.J.S.A. 2C:44-1(a)(9). More particularly, the court

explained

defendant has had prior contact with the court system. As a juvenile he had one adjudication and one violation of probation. As an adult, he's a multi-state offender, with one conviction in the First Judicial Court in Philadelphia. And in New Jersey the defendant has had six Municipal Court convictions, nine Superior Court convictions, including two for CDS . . . possession, distribution on or near school property. One for disarming a law enforcement officer; one for possession of CDS; two for aggravated assault; one for terroristic threats; two for resisting arrest; and one for possession with distribution within 500 feet of certain public property.

A-3437-21 47 Defendant also argues the court should have found mitigating factor nine ,

that defendant's character and attitude make it unlikely that he will reoffend,

N.J.S.A. 2C:44-1(b)(9). The court considered and properly rejected that factor,

finding it undermined by substantial credible evidence establishing defendant 's

significant criminal history, which includes his prior commission of violent

crimes.

Defendant also argues the court had inconsistently found both aggravating

factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), and mitigating

factor eight, the circumstances leading to the charge are unlikely to reoccur,

N.J.S.A. 2C:44-1(b)(8). Defendant claims that under similar circumstances the

Court in Fuentes ordered a remand for resentencing because the trial court had

failed to explain its reasoning for finding mitigating factor eight and aggravating

factor nine. 217 N.J. at 80-81.

Contrary to defendant's contention, the Court in Fuentes explained that

"[b]ecause N.J.S.A. 2C:44-1's statutory language does not suggest, and [the

Court had] never held, that aggravating factor nine and mitigating factor eight

are inherently incompatible," it "did not adopt such an inflexible rule." Id. at

79. As the Court explained, "even if the record demonstrates that the offense at

issue arose in circumstances unlikely to recur, thus supporting a finding as to

A-3437-21 48 mitigating factor eight, a defendant could nonetheless pose a risk of recidivism,

requiring specific deterrence within the meaning of N.J.S.A. 2C:44-1(a)(9)." Id.

at 80. That is the precise determination the sentencing court made here , and we

find no error in the court's conclusion because it is supported by substantial

credible evidence.

We therefore find no basis in the record to question or disturb the court

detailed, thoughtful, and well-supported findings of the aggravating and

mitigating factors. Our review of the record similarly reveals no grounds to

disturb the court's weighing of the factors in its determination of defendant's

sentence. We reject defendant's claims to the contrary.

As we have explained, the court sentenced defendant to concurrent eight-

year custodial terms on counts four and eight and a consecutive eight-year term

on count one.8 Defendant argues the court erred by imposing consecutive

sentences on the possessory weapons offenses and the aggravated assault for

which he was convicted because "the offenses were part and parcel of the same

incident." He also contends the court erred by imposing the consecutive

8 As noted, we have vacated the court's sentence on court four because the court should have merged that count with count one.

A-3437-21 49 sentences, claiming the court misapplied the principles governing the imposition

of consecutive sentences established in State v. Yarbough, 100 N.J. 627 (1985).

In Yarbough, the Court "identified a series of factors for sentencing courts

to consider as a guide in determining whether to make sentences run

concurrently or consecutively." State v. Torres, 246 N.J. 246, 264 (2021). The

Court has explained that a proper analysis under Yarbough "does not rely on

ticking off the . . . factors." Id. at 270. "[A] sentencing court's decision whether

to impose consecutive sentences should retain focus on 'the fairness of the

overall sentence.'" Id. at 270 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).

In support of its imposition of the consecutive sentences, the court

generally addressed the Yarbough factors.9 The court found that the possessory-

9 The Yarbough factors include:

(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;

A-3437-21 50 weapons offenses for which defendant was convicted under counts four and

eight "stand separately and alone" from the aggravated assault under count one

and "would have merited a conviction even if the aggravated assault had not

occurred." That finding adds little substance to the analysis of whether to

impose a consecutive sentence because a court may consider imposing a

consecutive sentence only where a defendant has been convicted of more than

(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; (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[.]

[Yarbough, 100 N.J. at 643-45.]

The Yarbough factors as first explained by the Court included a sixth factor— "there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses"—that was "disapproved by the Legislature[,]" when in 1993 it "amended N.J.S.A. 2C:44-5(a) to clarify that '[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.'" Torres, 246 N.J. at 265 (alteration in original) (citation omitted).

A-3437-21 51 one separate offense, and the commission of separate crimes alone does not

warrant the imposition of consecutive sentences. See id. at 266 (explaining our

Criminal "Code does not contain a presumption in favor of either concurrent or

consecutive sentences"). If it were otherwise, it would be unnecessary to

consider the Yarbough factors and the overall fairness of a sentence in

determining whether to impose a consecutive sentence. See generally id. at 262-

68.

The court also based its decision to impose consecutive sentences on its

finding that defendant's "possession of the gun preceded the shooting, and while

somewhat overlapping," his possession of the gun was "materially separate in

time and location" from the shooting. Based on those findings, the court

determined defendant's sentence on the aggravated assault under count one

should run consecutive to the concurrent sentences it had imposed on the

possessory-weapons offenses under counts four and eight because "the gun

charges involved unique periods and locations of illegal behavior" and therefore

"did not constitute a single period of aberrant behavior." The court further

reasoned that "[b]ecause of the distinct nature of the crimes," imposition of

consecutive sentences would "uphold the principle that there . . . should be no

free crimes."

A-3437-21 52 In our view, those findings are in part based on the same error that caused

the court's incorrect failure to merge count four with count one. Again, as the

State concedes, it was necessary to merge count four with count one because the

evidence established defendant possessed the handgun solely for the unlawful

purpose of pointing it at Payne and shooting Carrillo. As such, the commission

of the possession-of-a-weapon-for-an-unlawful-offense under count four

occurred at the identical location as, and simultaneous with, the commission of

the aggravated assaults for which he was convicted. The commission of the

crime for which defendant was convicted under count four was therefore clearly

part of the same period of aberrant behavior. The court's contrary finding finds

no support in the record.

We recognize defendant was also convicted of certain persons not to

possess a weapon under count eight, and that is an offense distinct from the

possession-of-a-weapon-for-an-unlawful-purpose offense under count four. But

the court did not offer reasons for the imposition of a consecutive sentence on

count eight different from those on which it relied in imposing a consecutive

sentence on court four. And, as we have explained, those reasons are not

supported by the record. Moreover, the court's finding that consecutive

sentences are appropriate because the offenses occurred at different times and

A-3437-21 53 at different locations is simply inaccurate—the evidence showed defendant

possessed the handgun at only a single instant in time and at a single location —

and that is when he pointed the gun at Payne and fired it at Carrillo .

There may be grounds in the record to support the imposition of a

consecutive sentence on defendant's certain-persons conviction but for the

reasons we have explained, the court's findings supporting its consecutive-

sentence determination are incorrect, contradicted by the record, and inadequate

to support its imposition of a consecutive term.

It is also unclear if the court deemed a consecutive sentence was warranted

because it sentenced defendant on two weapons offenses, instead of the only

offense—count eight—for which it should have sentenced defendant based on a

proper application of merger principles, or if the court's determination of the

overall fairness of the sentence was affected by its erroneous understanding it

was required to impose sentence on three separate convictions—the two

weapons offenses and single aggravated assault following merger—when, due

to merger, it was required to sentence defendant on only two separate offenses—

counts four and eight.

For those reasons, we deem it appropriate to vacate defendant's sentences

to allow the court to consider anew its imposition of its sentences on counts one

A-3437-21 54 and eight, as well as whether the sentences should be consecutive, in the absence

of its mistaken understanding that it was also required to sentence defendant on

count four. In remanding the matter for resentencing on counts one and eight,

we do not offer any opinion on the terms of the sentences that should be imposed

or whether consecutive or concurrent sentences should be imposed. That

decision shall be made by the remand court in accordance with all applicable

legal principles based on the record presented and the arguments of counsel. See

generally State v. Randolph, 201 N.J. 330 (2012).

To the extent we have not expressly addressed any of defendant's

arguments, including his contention that purported cumulative errors require

reversal of his convictions and sentence, we have determined they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm defendant's convictions, vacate his sentence, and remand for

resentencing. We do not retain jurisdiction.

A-3437-21 55