NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2899-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL N. PILLARELLA,
Defendant-Appellant. ___________________________
Submitted September 23, 2025 – Decided October 10, 2025
Before Judges Gilson, Perez Friscia, and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 21-06-0811.
Kelly Anderson Smith, LLC, attorney for appellant (Kelly Anderson Smith, of counsel and on the briefs).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Michael N. Pillarella appeals from a May 10, 2023 judgment
of conviction entered after he was found guilty by a jury of second-degree
reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and third-degree assault by
automobile, N.J.S.A. 2C:12-1(c)(2). We affirm.
I.
We summarize the facts and trial testimony relevant to the issues raised
on appeal. The State alleges that on January 30, 2021, defendant was operating
a motor vehicle under the influence of multiple controlled dangerous substances
(CDS) and alcohol in Little Egg Harbor when he crossed the center line of the
roadway and collided with a motor vehicle operated by K.E., who was seventeen
years old, and occupied by G.P., who was sixteen years old.1 The accident
resulted in the death of G.P. and serious bodily injury to K.E.
An Ocean County grand jury returned an indictment charging defendant
with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); second-
degree vehicular homicide, N.J.S.A. 2C:11-5(a); third-degree strict liability
vehicular homicide, N.J.S.A. 2C:11-5.3; second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); and third-degree assault by automobile.
1 We utilize initials to protect the identities of the minor victims and their medical records, reports, and evaluations. R. 1:38-3(a)(1) and (2) A-2899-22 2 The State called the following witnesses at trial: K.E.; Lauren Meglino-
Runzo and Christina O'Brien, Little Egg Harbor volunteer emergency medical
technicians who responded to the accident; Police Officer Robert Peschko of the
Little Egg Harbor police department who responded to the accident; Kathleen
McNulty, a trauma nurse at AtlantiCare Regional Medical Center (ARMC)
where defendant was airlifted after the accident; Robert Parlow, an expert in
"crash reconstruction"; Celeste Esposito, manager of Mystic Island Pizza where
defendant worked on January 30, 2021; Kevin Kane, manager of Mystic Islands
Casino where defendant was drinking prior to the accident; Dr. Richard Cohn,
an expert in pharmacology and forensic toxicology; Dr. Robert J. Pandina, an
expert in psychopharmacology, neuropsychology, and the effects of drugs and
alcohol on human physiology and behavior; and Detective Raymond Coles of
the Ocean County Prosecutor's Office (OCPO), an expert in computer forensics.
Defendant did not testify.
K.E. testified that on the evening of January 30, 2021, she drove to pick
up her friend, G.P., from her home in Little Egg Harbor and they spent time
together having dinner, getting ice cream, and taking photographs. At
approximately 9:30 p.m., K.E. was driving G.P. home southbound on Radio
Road in Little Egg Harbor when she saw "bright headlights right in front of [her]
A-2899-22 3 in [her] lane." The other vehicle was driving "very fast," and "the lights came
out of nowhere." K.E. said "oh my God" because "she looked up and the
headlights were just right there." K.E. turned her steering wheel to the left to
avoid colliding with the other vehicle. The accident happened about "[t]hree
seconds" after K.E. first saw the headlights coming at her.
K.E. was unconscious after the accident and recalled "[w]aking up
and . . . seeing lights around and smoke." She did not see G.P. K.E. was
airlifted to Jersey Shore Medical Center (JSMC) where she was hospitalized for
two weeks and underwent multiple surgeries.
Meglino-Runzo responded to the scene of the accident and assisted with
defendant's treatment. She "was pretty sure that [she] smelled alcohol" when
defendant was in the car. She asked him if he had taken any drugs and he
responded, "he was on methadone." "[H]e was asked if he had anything to
drink . . . and he . . . said that he had drank hard alcohol." Defendant "asked
what had happened . . . and how fast he was going." Defendant's "eyes were a
little glassy" and his speech was slurred.
O'Brien also responded to the scene and attended to defendant. She
testified that when she was next to defendant in the ambulance "[t]here was a
A-2899-22 4 heavy odor of alcohol." Defendant "said he was on methadone," and said he had
consumed "half a bottle of hard alcohol."
Officer Peschko responded to the scene of the accident. He observed K.E.
in the driver's seat of her vehicle and G.P. in the passenger seat. "[I]t was
difficult to see [G.P.] due to the amount of damage inside the vehicle. But she
was compressed between the . . . front passenger seat and the dashboard."
"[T]he fire department had to cut the roof off of the vehicle and remove her."
Officer Peschko left the scene and went to ARMC "to go get a blood draw
from [defendant] and his cell phone." Defendant was in the waiting room when
the officer arrived. A nurse performed the blood draw at 2:07 a.m. Defendant
voluntarily surrendered his cell phone to Officer Peschko.
On cross-examination, defense counsel asked if he observed whether G.P.
was wearing a seatbelt. Officer Peschko responded he "was unable to see."
Defense counsel also asked if he had "cause to be concerned that [defendant]
was intoxicated as [he was] speaking with him" at the hospital. Officer Peschko
responded "[y]es" because defendant's "speech was slurred, it was slowed[,] and
his eyelids were drooping."
McNulty evaluated defendant when he arrived at ARMC at approximately
10:47 p.m. As a part of her initial assessment, she asked defendant if he was
A-2899-22 5 taking any prescribed medications and defendant "reported he was taking
methadone." McNulty drew a sample of defendant's blood for diagnostic
purposes at 11:00 p.m.
G.P. was transported to JSMC. Tragically, G.P. died on February 9, 2021,
as a result of injuries she sustained in the accident.
Parlow was qualified as an expert in "crash reconstruction" without
objection. He testified an event data recorder (EDR) is "a module" that is
"mounted in between the seats" that stores data "when the airbag goes off."
Parlow downloaded the information contained on the EDR from defendant's
vehicle and generated a report.
The EDR in defendant's vehicle included pre-crash data. Five seconds
before impact, defendant was traveling 74.5 miles per hour. The speed limit in
the area is forty-five miles per hour. Defendant accelerated to 80.7 miles per
hour one and one-half seconds before impact. He was traveling 78.9 miles per
hour one second before impact, 77.0 miles per hour one-half second before
impact, and 74.5 miles per hour at impact. Defendant had the acceleration pedal
depressed to eighty-five percent until approximately one second before impact.
The EDR also contained steering input readings that showed defendant
made a forty-five degree right turn across the road to the point where the
A-2899-22 6 accident occurred one second before impact. The service brake data from the
EDR showed defendant's "foot was not on the brake at all" prior to impact.
Parlow opined, based on his analysis of evidence at the scene of the
accident, defendant's vehicle was driving northbound while fully centered in the
southbound lane before the start of the hard wheel turn to the right that "put
him . . . where the impact was." Based on his investigation, Parlow concluded:
[Defendant's vehicle] was traveling northbound on Radio Road in the northbound lane. For some reason, he traveled into the southbound lane and he got to a point where he turned the wheel and traveled towards the double yellow line. [K.E.'s vehicle] was traveling southbound and she went to the left to try to get away from him and the impact took place between . . . both vehicles. . . . [T]here[ was] no way [K.E.] could get out of the way and . . . she traveled into the [northbound] lane and got hit head on.
According to Parlow, defendant caused the accident when his vehicle
"traveled into the opposite lane of travel, continued northbound in the
southbound lane[,] and then traveled into the area where the impact took place."
Esposito testified defendant was employed as a pizza maker at Mystic
Island Pizza and worked on January 30, 2021. "[T]hroughout the afternoon" she
noticed defendant was taking frequent trips to the bathroom, he "exit[ed] the
building" twice, and at approximately 7:00 or 7:30 p.m., "he was sitting at a
table, eating a slice of pizza . . . nodding out."
A-2899-22 7 Based on these observations, Esposito decided to terminate his
employment and "had . . . a friend escort him out and let him know that he was
done." Approximately ten to fifteen minutes later, defendant sent Esposito text
messages "trying to explain the situation" and "sending [her] pictures of
medication bottles." Defendant's text messages, obtained from Esposito's
phone, were entered in evidence and published to the jury.
Kane testified defendant entered the Mystic Islands Casino bar at
approximately 9:00 p.m. Defendant was captured on the casino's interior and
exterior surveillance video system. Kane briefly spoke with defendant shortly
after he arrived. Defendant had just been served an alcoholic beverage.
Sometime later, one of Kane's employees "alert[ed] [him] that [defendant] was
exhibiting some concerning behavior[,] and they wanted to stop serving him
alcohol or take his drinks away." Kane "removed his drinks" and "had a small
altercation with him bothering another table and [he] asked [defendant] to come
outside and talk." Kane "ushered him out" and spoke to him outside for "[ten],
[fifteen] minutes or so."
Kane "was trying to get him a ride home safe because he
was . . . exhibiting some concerning behaviors . . . and [he] just wanted to make
sure he got home safe." Kane "offered him a cab, . . . offered him a ride in [his]
A-2899-22 8 truck, and [he] as well as a couple of patrons and one of [his]
employees . . . [were] trying to get [defendant] home safe and get him to take a
ride." Defendant was "slurring and swaying around" but he "got in his
car . . . and he left." The interior and exterior surveillance video, including
Kane's interaction with defendant inside the casino and in parking lot, was
played for the jury.
Dr. Cohn was qualified as an expert in pharmacology and forensic
toxicology without objection. He testified the testing of defendant's first blood
sample, which was collected at approximately 10:58 p.m., generated the
following findings: .053 blood alcohol concentration (BAC); eighty nanograms
of alprazolam, the generic name for Xanax, per milliliter; 0.3 nanograms of
fentanyl per milliliter; and 390 nanograms of methadone per milliliter. Testing
of defendant's second blood sample, which was collected at approximately 2:07
a.m., revealed: BAC of zero; ninety-five nanograms of alprazolam per milliliter;
249 nanograms of methadone per milliliter; and .6 nanograms of fentanyl per
milliliter. Testing of K.E.'s blood sample did not reveal evidence of any
significant toxicological substances.
Dr. Pandina was qualified as an expert in psychopharmacology,
neuropsychology, and the effects of drugs and alcohol on human physiology and
A-2899-22 9 behavior without objection. Dr. Pandina testified that based on his analysis of
defendant's documented behavior and actions on the night of the accident, as
well as the results of his blood analysis, specifically the change in concentration
of alcohol and CDS in his blood between the two tested blood samples drawn
approximately three hours apart, defendant's CDS and alcohol levels at the time
of the accident were likely to have been: 0.05 BAC; methadone level between
380 and 400 nanograms per milliliter of blood; alprazolam level of at least 70
nanograms per milliliter of blood; and fentanyl level of 0.3 nanograms per
milliliter of blood.
According to Dr. Pandina, "methadone is a synthetic opiate, generally
considered a narcotic analgesic." Methadone and alcohol "both have sedative
actions" and the combination of the two substances enhances the effect of both.
Combining methadone and alcohol produces "an additive effect and . . . a
synergistic effect. In other words, the methadone affects the alcohol, [and] the
alcohol affects the methadone."
Dr. Pandina explained the combination of methadone and alprazolam also
has "both additive effects and synergistic effects" and "when you combine
methadone levels with alprazolam levels, the amount of methadone that[ is]
necessary to create greater impairment [is lower] and the amount of alprazolam
A-2899-22 10 that[ is] in combination is also lower." Dr. Pandina opined that the four
substances detected in defendant's blood collectively resulted in "a very high
level of impairment" at the time of the accident.
Detective Coles was qualified as an expert in computer forensics without
objection. On February 16, 2023, he testified regarding his work copying the
surveillance video from Mystic Islands Casino and extracting information from
K.E.'s cell phone and processing the data using "Cellebrite software." The next
day, our Supreme Court issued its opinion in State v. Olenowski (Olenowski I),
253 N.J. 133 (2023), adopting the Daubert2 standard for scientific reliability of
expert testimony in criminal cases in place of the previously recognized Frye3
standard.
Based on Olenowski I, defendant moved to preclude testimony regarding
the forensic extraction of text messages from his cell phone because the
Cellebrite software used by Detective Coles had not been subject to scrutiny
applying the Daubert standard. In response, on February 21, the court conducted
a N.J.R.E. 104 hearing at which Detective Coles testified. On February 22, the
court denied the motion in an oral opinion.
2 Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993) 3 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) A-2899-22 11 On February 23, Detective Coles was recalled as an expert in computer
forensics regarding his extraction of text messages from defendant's cell phone
using the Cellebrite software. He located text messages that had been deleted
several hours after the accident.
On January 30, 2021, at 2:23 p.m., defendant texted someone listed in his
phone contacts as "Kay" and asked, "How can I get my bars?" Defendant wrote
she should drive to Mystic Island Pizza in Little Egg Harbor, that he had "140
in [his] cup holder," and she should let him know when she arrived "to unlock."
Defendant asked if she could arrive before 5:00 p.m., because he intended to
"make over [two-hundred] pizzas" that night.
At 5:21 p.m., defendant texted Kay, asking if "it" was there and if she
locked the car door. Kay responded, "[a]rmrest." At 5:38 p.m., defendant asked
Kay, "[h]ow many Zans were in there, [ten] or [thirteen]?" Kay responded,
"12*." Defendant replied, "I did[ not] look, I just took two, lol."
On March 3, 2023, the jury found defendant not guilty of aggravated
manslaughter, but guilty of the lesser-included offense of reckless manslaughter.
It also found defendant not guilty of aggravated assault, but guilty o f the lesser-
included offense of assault by auto. On May 10, 2023, he was sentenced to an
extended term of seventeen years in prison pursuant to N.J.S.A. 2C:44-3(a),
A-2899-22 12 subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for reckless
manslaughter, and a consecutive sentence of four years in prison for assault by
auto.
II.
On appeal, defendant raises the following points for our consideration.
POINT I
THE STATE IRREPARABLY PREJUDICED JURORS AGAINST THE DEFENDANT BY ITS INFLAMMATORY COMMENTARY AND IMPROPER INFERENCES.
POINT II
THE TRIAL COURT FAILED TO SUPPRESS IMPROPER HIGHLY PREJUDICIAL 404(B) EVIDENCE.
POINT III
DEFENDANT'S TRIAL WAS IRREPARABLY PREJUDICED WHEN THE COURT FAILED TO EXCLUDE DEFENDANT'S TEXT MESSAGES VIA CELLEBRITE EXTRACTION.
POINT IV
THE TRIAL COURT'S INSUFFICIENT AND IMPROPER INSTRUCTIONS AND JURY CHARGES DENIED DEFENDANT A FAIR IMPARTIAL TRIAL.
A-2899-22 13 III.
We are not persuaded by defendant's claims of prosecutorial misconduct
during the State's summation. A trial court "has broad discretion in the conduct
of the trial, including the scope of counsel's summation." Litton Indus. v. IMO
Indus. Inc., 200 N.J. 372, 392 (2009). Accordingly, we review the court's ruling
regarding the parties' summations for an abuse of discretion. Id. at 392-93.
Generally, "[p]rosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the scope of the
evidence presented." State v. Williams, 471 N.J. Super. 34, 43 (App. Div. 2022)
(quoting State v. Frost, 158 N.J. 76, 82 (1999)). "A prosecutor must
'conscientiously and ethically undertak[e] the difficult task of maintaining the
precarious balance between promoting justice and achieving a conviction,'
ensuring that at all times [their] 'remarks and actions [are] consistent with [their]
duty to ensure that justice is achieved.'" State v. Jackson, 211 N.J. 394, 408
(2012) (first and third alterations in original) (quoting State v. Williams, 113
N.J. 393, 447-48 (1988)).
"A prosecutor is not forced to idly sit as a defense attorney attacks the
credibility of the State's witnesses; a response is permitted." State v. Hawk, 327
N.J. Super. 276, 284 (App. Div. 2000) (quoting State v. C.H., 264 N.J. Super.
A-2899-22 14 112, 135 (App. Div. 1993)); see also State v. Engel, 249 N.J. Super. 336, 379
(App. Div. 1991) (explaining a prosecutor may respond in summation to defense
counsel's insinuation the State's witnesses had lied and framed the defendant).
Prosecutors may "strike hard blows . . . [but not] foul ones." State v. Wakefield,
190 N.J. 397, 436 (2007) (quotation omitted). "Generally, remarks by a
prosecutor, made in response to remarks by opposing counsel, are harmless."
C.H., 264 N.J. Super. at 135.
Defendant contends the State "was sarcastic, denigrating, unprofessional ,
and disparaging to the [d]efense." For example, he contends the State
improperly implied "defendant was more concerned with himself and not the
victims" when the prosecutor said, "oh woe is me" in reference to defendant's
conduct after the accident. He argues the prosecutor "taunted the [d]efense"
with "sarcasm" by saying he "did[ not] hear anybody saying they went out [and]
saw an [eighty] mile-an-hour speed limit sign out there. No, no. In the places
where it mattered, the entire stretch, [forty-five]. He knew it."
He argues it was improper for the prosecutor to ask, "[h]ow could he
possibly think something could go wrong? So when you[ are] going [eighty]
miles an hour and the phantom deer jumps out in front of you, you do[ not] use
the brake, nah, you just swerve into the lane of oncoming traffic, just for a
A-2899-22 15 second." And he argues the State incorrectly implied defendant was "blaming
the victim" by commenting it was "not a defense" to argue K.E. "should have
reacted better, she should have maneuvered better, she should have been a more
experienced driver."
Defendant also asserts it was improper for the State to note that defense
counsel:
talked to [the jury] about each of the four substances. There is no, just so we[ are] clear, there is no parsing out these substances. Oh, alcohol is safe. Oh, methadone, I have a prescription. Oh, Xanax, you could get a prescription, I did[ not] have one, oh, fentanyl, I do[ not] know.
Defense counsel objected "because the way the questions [were] being
phrased seems to be literally just ridiculing the defense attorney's closing[], if
nothing else." The court noted "the vast majority of what [the State] ha[d] said
[were] legitimate, fair comments" but it did not "want it to be disparaging to
defense counsel." Immediately thereafter, the court read the following curative
instruction to the jury:
Ladies and gentlemen, we[ are] going to continue in a moment with [the State's] summation. I[ would] like to instruct you that what both attorneys say in the summation is not evidence. The evidence, as you know, and [the court has] told you multiple times and [the court will] tell you again, comes from the testimony of witnesses and any exhibits [the court]
A-2899-22 16 admit[s] into evidence. But both sides are entitled to be forceful advocates for each other. To the extent anything [the State] said could be construed as criticizing [defense counsel's] obligations to represent [defendant], that would be inappropriate. If you took it that way, you should not, you should disregard that and not consider that. You should consider the comments made in summations as the attorneys' argument about what the evidence shows or the evidence does[ not] show and you should take it that way.
We are persuaded the State's summation, while it struck hard blows, was
reasonably related to the evidence and was responsive to arguments advanced in
defense counsel's summation. For example, defense counsel argued defendant
"consume[d] safe drinks but [had] an unexpected reaction" and "is not a Ph.D.
in pharma[]psychology to know exactly how these substances work, how
substances interact, what could be mixed." "He does[ not] necessarily know that
methadone and alcohol has . . . an exponential effect . . . [and] that each one
stimulates the other's absorption and effects." "All he knew what he was
consuming was a legal limit and he felt okay to drive." Counsel argued "the
alcohol amount consumed was a safe amount . . . but there was . . . an
unexpected reaction[,] . . . a sudden reaction to a mixture, safe alcohol mixed
with prescribed methadone and taken as prescribed."
With respect to the area of the accident, counsel argued "there[ are] trees,
there[ are] deer crossings." Defendant was "driving in his own lane and he
A-2899-22 17 cross[ed] over, one second, immediately switche[d] back."
Unfortunately for everyone involved, no one had time to brake. Also unfortunately for everybody involved, the driver, [K.E.], responded by swerving into the opposite lane, exactly as he was correcting back to his lane, realizing his mistake. There[ is] no time to brake for anyone, according to the expert. But all there is time to do, which is what [defendant] does, is release the gas pedal to slow down.
...
But we do[ not] know what happened there, we do[ not] know if he saw a deer, saw debris, saw a car that was turning . . . and tried to avert it . . . or got distracted by something, we do[ not] know. What we do know is that it was for a second, oh, my God, and swerves back.
We know that [K.E.] is driving [her vehicle] . . . southbound on Radio Road. We do[ not] know her speed, any details of her driving at all. . . . What we do know is that she swerves into the opposite lane and it[ was] a head-on collision into [defendant]'s car in his own lane. She has a probationary license for less than a year, has Bluetooth on, which is listening to music, and she receives a text from [G.P.] at the same moment for a split second before the accident takes place.
[W]e[ are] not placing blame on [K.E.], but we[ are] . . . focusing on [defendant's] awareness . . . that there will be a newer driver driving down and would swerve to an incoming lane.
A-2899-22 18 Counsel attempted to explain defendant's decision to delete the text
messages Detective Coles recovered. He argued:
It[ is] important to put yourself in [defendant]'s shoes to figure out if his conduct was so reckless, so beyond what a reasonable person would do. He[ is] [twenty- six] years old, he just got into a car accident. Somebody is clearly hurt. You[ are] upset and crying for hours about the fact that this happened to you, the fact that you hurt somebody. And you realize there[ are] text messages that may get you into more trouble about maybe buying some kind of Xanax that maybe should have been prescribed. It[ is] natural to be scared, it[ is] natural to freak out and take measures to try to . . . make the situation that[ is] already bad less worse.
The remarks defendant alleges constituted prosecutorial misconduct were
responsive to arguments raised specifically or by implication in defendant's
summation. The State responded to defendant's attempts to characterize his
drinking as safe, his use of CDS as prescribed in part, and the reaction of all four
substances in his system as unexpected. It also responded to the implication that
defendant may have swerved to avoid a deer, and the accident could have been
avoided if K.E. was an experienced driver who might not have left her lane when
she saw defendant coming directly at her.
Moreover, the court gave a timely, forceful curative instruction in
response to defendant's objection. When appropriate, a trial court can give the
A-2899-22 19 jury a curative instruction to remedy any prejudicial effect caused by a
prosecutor's allegedly improper remark. Hawk, 327 N.J. at 283.
"The type of necessary curative instruction is in the discretion of the trial
court judge who is in the best position to decide what is needed." Ibid. (citing
State v. Winter, 96 N.J. 640, 647 (1984)). "An effective curative instruction
needs to be 'firm, clear, and accomplished without delay.'" State v. Prall, 231
N.J. 567, 586 (2018) (quoting State v. Vallejo, 198 N.J. 122, 134 (2009)). The
jury is presumed to have understood and followed such instructions when given.
State v. Feaster, 156 N.J. 1, 65 (1998); State v. T.J.M., 220 N.J. 220, 237 (2015)
(appellate courts "act on the belief and expectation that jurors will follow the
instructions given them by the court.").
The court's curative instruction in this case was timely and appropriate.
To the extent the State made any comments that exceeded the bounds of proper
summation, the court's instruction ameliorated any possible harm.
Defendant also argues the prosecutor mischaracterized the evidence and
applicable law by arguing it was "a gosh darn certainty" an accident would
happen based on defendant's operation of the vehicle. The prosecutor argued
further:
You[ are] going to hear from the judge. He[ is] going to charge you on the law. You[ are] going to get the
A-2899-22 20 verdict sheet. We went over the lesser-included charges, clearly he[ is] guilty of those. I[ am] here talking to you about aggravated manslaughter and aggravated assault and the fact that based upon the evidence, the evidence demands you return a verdict of guilty on those two charges and those will be the first charges you address for each victim. Once you return a verdict of guilty as to those two charges, your service is complete.
In response to defendant's objection, the court immediately read the
following curative instruction to the jury:
Ladies and gentlemen, there was an objection . . . by the defense to the comment that the evidence demands a certain result.
Attorneys are allowed to be forceful advocates for their respective positions and they[ are] expected to be. I[ am] going to give you detailed instructions as to how to decide the case. The evidence does[ not] demand the result one way or the other, what[ is] requested of you is that you be a fair and impartial jury and consider all the evidence and you arrive at a just verdict. So it[ is] going to be your job, as I told you before and I[ am] going to tell you again, you[ are] the judges of the facts. So that argument is exactly that, it[ is] an argument or comment. I ask you just to disregard the word demands in there. Take again the prosecutor's comments as being a forceful advocate, just like [defense counsel's] comments were being a forceful advocate.
The court's instruction was timely and appropriate. To the extent the State
mischaracterized the evidence or the law, the court's instruction cured the error.
There is no reason for us to disturb the court's decisions on defendant's
A-2899-22 21 objections to the State's summation or the curative instructions given by the
court.
IV.
Defendant's contention the court failed to suppress "improper highly
prejudicial evidence" under N.J.R.E. 404(b), lacks merit. We review a trial
court's evidentiary rulings for an abuse of discretion. State v. Kemp, 195 N.J.
136, 149 (2008). "[S]ensitive admissibility rulings regarding other-crimes
evidence made pursuant to [N.J.R.E.] 404(b) are reversed '[o]nly where there is
a clear error of judgment.'" State v. Green, 236 N.J. 71, 81 (2018) (third
alteration in original) (quoting State v. Rose, 206 N.J. 141, 157-58 (2011)).
N.J.R.E. 404(b) provides, in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition.
This evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute.
To be admissible:
1. The evidence of the other crime must be admissible as relevant to a material issue;
A-2899-22 22 2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992) (footnote omitted) (citing Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
However, certain evidence of other wrongful conduct does not require
analysis under N.J.R.E. 404(b). As set forth in Rose, evidence which is
intertwined with the other crime charged, provides a background to the events,
or "completes the story," is intrinsic evidence. 206 N.J. at 180-181. Evidence
that is "intrinsic" is admissible if relevant, and not excludable under N.J.R.E.
403. Id. at 177-78. Intrinsic evidence is admitted "as 'necessary parts of the
proof of an entire deed,' or as 'inseparable elements of the deed,' or as
'concomitant parts of the criminal act.'" Id. at 177 (quoting 1A Wigmore on
Evidence § 218, at 1888 (Tillers rev. 1983)).
Defendant contends Meglino-Runzo should not have been permitted to
testify defendant said he "was on methadone" and "had drank hard alcohol."
O'Brien should not have been allowed to testify he said he "was on methadone"
A-2899-22 23 and consumed "half a bottle of hard alcohol." McNulty should not have been
permitted to testify defendant "reported he was taking methadone." He similarly
argues Esposito should not have been permitted to testify defendant sent her
"pictures of medication bottles" to explain "the situation and why he was
terminated." We are not convinced.
The court correctly determined evidence of defendant's use of methadone
and alcohol was intrinsic to the State's case. Defendant's level of intoxication
from a combination of substances including methadone and alcohol was central
to the case. Even so, the court instructed the jury using Model Jury Charges
(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev.
Sept. 19, 2016), that it was only to consider this evidence to determine whether
defendant was impaired and acting recklessly, and not for any other purposes.
We are also satisfied that if it was error to admit this testimony, the error
was harmless. We apply the harmless error rule when, as here, a specified error
was brought to the trial judge's attention. State v. G.E.P., 243 N.J. 362, 389
(2020). We must determine whether there was "'some degree of possibility that
[the error] led to an unjust result. The possibility must be real, one sufficient to
raise a reasonable doubt as to whether [the error] led the jury to a verdict it
otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012) (first
A-2899-22 24 alteration in original) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). In doing
so, we must independently assess the quality of the evidence of defendant's guilt .
State v. Sterling, 215 N.J. 65, 102 (2013).
That is so because:
[t]rials, particularly criminal trials, are not tidy things. The proper and rational standard is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. "A defendant is entitled to a fair trial but not a perfect one."
[R.B., 183 N.J. at 333-34 (quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)).]
Here, as defendant concedes, his use of methadone and alcohol was
introduced without objection through the testimony of Doctors Cohn and
Pandina. Testimony from the other witnesses confirming defendant was on
methadone or consumed alcohol did not lead the jury to a verdict they otherwise
might not have reached.
Defendant's arguments regarding Kane's testimony are meritless. Kane
did not testify about defendant's "recent resurgence of a [h]eroin
addiction . . . loss of employment, as well as his love for Xanax." Those topics
were only addressed at a N.J.R.E. 104 hearing outside the presence of the jury
and were expressly excluded by the court. As a result, Kane only testified about
A-2899-22 25 his interactions with and observations of defendant at the casino and in the
parking lot. Defendant fails to articulate any valid basis for his arguments
regarding Kane's testimony on appeal.
Defendant contends the court improperly permitted the State to introduce
text messages Detective Coles extracted from his cell phone. We are not
persuaded.
In Olenowski I our Supreme Court outlined four "non-exclusive" factors
identified in Daubert to assist the trial court in evaluating the admissibility of
expert evidence under N.J.R.E. 702: "(1) whether the scientific theory or
technique can be, or has been, tested; (2) whether it 'has been subjected to peer
review and publication'; (3) 'the known or potential rate of error' as well as the
existence of standards governing the operation of the particular scientific
technique; and (4) general acceptance in the relevant scientific community." Id.
at 147 (quoting Daubert, 509 U.S. at 593-94). "The Court emphasized the
inquiry is 'a flexible one' and that its 'focus . . . must be solely on principles and
methodology, not on the conclusions that they generate.'" Ibid. (quoting
Daubert, 509 U.S. at 594-95).
A-2899-22 26 The Court made clear in Olenowski I, however, "[n]othing in [its] 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." 253 N.J. at 468. "The same is true for
challenges to admissibility of evidence that has previously been sanctioned but
the scientific reliability underlying the evidence has changed." Id. at 468-69.
In State v. Olenowski (Olenowski II), 255 N.J. 529, 580-81 (2023), our
Supreme Court adopted a hybrid appellate review standard to assess "the bona
fides of an expert's methodology" and its application to the case:
Going forward, we hold that in New Jersey criminal and quasi-criminal cases in which the trial court has admitted or excluded an expert witness based upon Daubert reliability factors, our appellate courts shall review that reliability determination de novo. However, other case-specific determinations about the expert evidence—such as whether the witness has sufficient expertise, whether the evidence can assist the trier of fact in that case, and whether the relevant theory or technique can properly be applied to the facts in issue—should be reviewed for an abuse of discretion.
N.J.R.E. 702 governs the admissibility of expert testimony. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
A-2899-22 27 To satisfy the Rule, the proponent of the evidence must demonstrate:
(1) the subject matter of the testimony must be beyond the ken of the average juror; (2) the field of inquiry must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the testimony.
[Olenowski I, 253 N.J. at 143 (internal quotation marks omitted) (quoting State v. J.L.G., 234 N.J. 265, 280 (2018)).]
At the N.J.R.E. 104 hearing, Detective Coles testified he was assigned to
the OCPO's High Tech Crime Unit in "the forensics laboratory, the process of
extracting phones and interpreting the contents of the extractions." His training
included "the Cellebrite Certified Operator and Cellebrite Certified Physical
Analyst" classes, and he obtained Cellebrite's "Capstone certification which is
the Cellebrite Certified Mobile Examiner." In the two years prior to the hearing,
he performed at least one thousand cell phone extractions and "almost every
single phone [was] processed with Cellebrite."
The Cellebrite program makes "a duplicate of the contents of that phone,
it[ is] placing it into a special container archive file where it then fingerprints
that file . . . using a . . . hashing algorithm to state that [the] file is the contents
of the phone and date and time the extraction was conducted." The "second
component involves the . . . processing of the extractions created." "It . . . uses
A-2899-22 28 different plug-ins and scripts to analyze the data to show the investigator analyst
what the contents of the phone extraction is in an easily digestible format." The
investigator would see "call logs, text messages, web history, images, videos,
location data, account data, user passwords[,] and some other emails."
In this case, defendant's cell phone was previously extracted by Cellebrite
Advanced Services (CAS). Due to trial logistics, Cellebrite was not able to send
a representative to testify and, with defendant's consent, Detective Coles
conducted his own extraction. He "initiated the full file system extraction which
was the same type of extraction . . . conducted by [CAS]." He then compared
his extraction to the CAS extraction to confirm they were consistent.
Detective Coles testified Cellebrite software is used for cell phone
extractions by "several thousand agencies around the world." Cellebrite has
been commercially available since 2007. The OCPO was using the Cellebrite
software before he arrived in 2017. "[T]he software itself is NIST [National
Institute of Standards and Technology] certified." That is "a [f]ederal institute
that tests and calibrates testing equipment." The "Cellebrite software is
generally considered reliable and accurate. It does what it says."
Detective Coles "periodically validate[s] any results" by comparing the
results to "the time stamp on th[e extracted] phone and verifying the content is
A-2899-22 29 exactly the same as being presented within the physical analyzer software." He
also completed "external efficiency examinations through . . . Collaborative
Testing Services" and was "deemed proficient" utilizing Cellebrite software.
The "only issues [he] ever encountered" related to the possible incorrect
interpretation of the time stamp. However, "it[ is] easy enough to validate the
time by going to the actual database and finding out the correct way it[ is]
supposed to be formatted." Even if that happens, "it[ is] not changing user
content." It "never changes the actual[]verbiage from the text messages, it just
might be the time stamps that were being utilized."
On February 22, 2023, the court denied defendant's motion to suppress the
extracted text messages in a comprehensive and well-reasoned oral opinion. The
court "generally agree[d]" "testimony regarding a download or transfer of files
and data from one electronic device to another is not expert testimony and need
not be presented by an expert and that jurors can understand that." However,
because Detective Coles was presented as an expert witness earlier in the trial
before Olenowski I was decided, he also determined his testimony was
admissible applying the Daubert factors.
The court found Detective Coles "qualified as an expert
witness . . . because he has the skill, experience[,] and training to conduct a
A-2899-22 30 forensic download." It noted "the State has not asked the detective to render an
opinion or interpretation on the evidence." The court determined "it[ is]
appropriate for him to testify as an expert even though it[ is] probably true that
part of what he[ is] saying is lay witness testimony." Detective Coles was "not
conducting science experiments, he[ was] not analyzing blood, DNA, [or] bullet
fragments. He[ was] transferring dat[a] from one electronic device to another."
The court found Detective Coles credible. Applying Daubert factor one,
it determined "the technique utilized . . . has been tried and tested nationwide, if
not worldwide, used by thousands of law enforcement agencies and it[ is] the
type of technique that if it was inaccurate, certainly would have come to the
attention of courts." "In addition, this is not a scientific technique which
involves the interpretation of evidence." "[S]ending something electronically"
involves "technology [that] is not novel, it[ is] something common and the jury
can understand how the software utilized by the detective
take[s] . . . electronic . . . information and then produces it onto paper."
Applying the second factor, the court referred to State v. Pratt, 200 Vt. 64
(Vt. Sup. Ct. 2015), which described how Cellebrite
results are tested in court through defense experts and through a peer review process of the type of national conferences and organizations that the forensic examiners belong to, that they compare results with
A-2899-22 31 each other, that there[ are] manual examination[s] of devices, and that the program's reliability is established in the forensic industry.
The court concluded, Detective Coles "testified exactly to that. So . . . to the
extent that type of peer review is applicable, factor number [two] has been
satisfied."
As to factor three, the court determined "there[ is] nothing to indicate that
messages which are downloaded from the electronic device are somehow false,
that they[ have] been downloaded in a way to alter their content. So we[ are]
not dealing with an error rate based on opinion testimony which is subject to
some interpretation." "[E]ither the download is successful or it[ is] not."
The court concluded factor four was satisfied because "the relevant
scientific community is forensic examiners and highly trained law enforcement
officials, and . . . there[ is] overwhelming general acceptance in that community
for the use of Cellebrite." Based on Detective Coles's testimony and its review
of the Daubert factors, the court determined "the detective's testimony about the
extraction to be sufficiently reliable" and "that the field is at the state -of-the-art
because of the highly developed [Cellebrite] software."
We review "case-specific determinations about the expert evidence—such
as whether the witness has sufficient expertise, whether the evidence can assist
A-2899-22 32 the trier of fact in that case, and whether the relevant theory or technique can
properly be applied to the facts in issue . . . for an abuse of discretion."
Olenowski II, 255 N.J. at 580-81. We are convinced the court correctly
determined it was not necessary for Detective Coles to testify as an expert
regarding the text messages he extracted by defendant's cell phone.
Generally, "[a] fact witness is one who testifies as to what 'he or she
perceived through one or more of the senses[,]'" State v. Miller, 449 N.J. Super.
460, 470 (App. Div. 2017), rev'd on other grounds, 237 N.J. 15 (2019) (quoting
State v. McLean, 205 N.J. 438, 460 (2011)), and whose testimony consists of "a
description of what the" person "did and saw" based on first-hand knowledge.
Ibid. This differs from an expert witness, who testifies based upon "'scientific,
technical, or other specialized knowledge . . . that is beyond the understanding
of the average person.'" Ibid. (quoting State v. Simms, 224 N.J. 393, 403
(2016)).
Police officers may "testify in a variety of roles." Id. at 470. They may
testify as fact witnesses if their testimony "'does not convey information about
what the officer "believed," "thought[,]" or "suspected[.]"'" Ibid. (quoting
McLean, 205 N.J. at 460). Officers may also testify as lay witnesses where their
testimony is "'based on their personal observations and their long experience in
A-2899-22 33 areas where expert testimony might otherwise be deemed necessary.'" Id. at 471
(quoting State v. LaBrutto, 114 N.J. 187, 198 (1989)). For example, in Miller,
we concluded that an officer who testified about his investigation of a
defendant's laptop, and "merely reported what he found" through his utilization
of "peer-to-peer software," testified only in the capacity of a fact witness
because he did not provide an opinion on his findings. Ibid.
Our review of the record establishes, as the court correctly determined,
Detective Coles could have testified as a lay witness regarding his extraction
using the Cellebrite software. His testimony was based on his personal
knowledge and experience using Cellebrite software to extract the contents of
defendant's cell phone. The transfer of electronic data from one device to
another is something well within the ken of the average juror. His testimony did
not involve scientific testing or analysis. In fact, he did not offer any type of
expert "opinion." He simply testified he used an electronic device to extract text
messages from defendant's phone and described where on defendant's phone
those files were located. The jury did not need expert testimony to understand
the evidence or determine a fact in issue.
A-2899-22 34 We are also convinced, however, the court correctly determined Detective
Coles's testimony was reliable and admissible in accordance with the
requirements of Olenowski/Daubert. We review the court's determination to
admit expert witness testimony based upon Daubert reliability factors de novo.
Olenowski II, 255 N.J. at 580-81.
Based on our de novo review, we are persuaded the court correctly applied
the Daubert factors and determined Detective Coles's testimony was admissible,
particularly as it related to the acceptance of the use of Cellebrite software. The
court correctly concluded factor one, whether the Cellebrite software has been
tested, was satisfied. As Detective Coles testified, the software has been used
around the world for at least a decade to extract information from electronic
devices for use as evidence in criminal trials. Such extracted data is used every
day in courtrooms throughout New Jersey and elsewhere. See e.g. Pratt, 200 Vt.
at 78-80 (affirming admission of Cellebrite extraction evidence in 2013);
Villareal-Garcia v. State, 671 S.W.3d 791 (Ct. App. Texas 2023) (affirming
admission of Cellebrite extraction evidence).
Factor two was satisfied based on Detective Coles's testimony that the
software is certified by the National Institute of Standards and Technology and,
A-2899-22 35 as the court noted, the software is regularly tested in court through cross-
examination and defense experts.
As to factor three, based on Detective Coles's testimony, to the extent
there is any rate of error, it relates only to the time stamp, which can easily be
verified and corrected. As applicable to this case, there is no basis to conclude
the extracted text messages themselves are subject to any "rate of error." Using
the Cellebrite software, the messages are extracted exactly as they are stored on
the original device.
Factor four is satisfied based on Detective Coles's testimony that
Cellebrite software is generally considered in the law enforcement community
to be reliable and accurate and, also, because it is regularly used in criminal
proceedings in New Jersey and across the country. The court correctly
determined expert testimony regarding cell phone extraction using Cellebrite
software is reliable and admissible under the Olenowski/Daubert standard.
Defendant's claim the court improperly admitted the EDR evidence
without conducting a Olenowski/Daubert hearing is incorrect. In Olenowski I,
our Supreme Court did not disturb "prior rulings that were based on the Frye
standard." 253 N.J. at 468. In State v. Shabazz, 400 N.J. Super. 203, 218-219
(Law Div. 2005), the court conducted a Frye hearing and determined "the
A-2899-22 36 scientific reliability of [EDR] evidence was generally accepted within the
automotive and accident reconstruction community, and thus met the Frye
standards for admissibility." The court properly denied defendant's motion to
exclude the EDR evidence in this case.
VI.
Defendant's arguments that the court's jury instructions were improper
lack merit. "An essential ingredient of a fair trial is that a jury receive adequate
and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).
"Correct jury instructions are 'at the heart of the proper execution of the jury
function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563,
571 (1994)). The trial judge must explain the law as it relates to the facts and
issues of the case. State v. Baum, 224 N.J. 147, 159 (2016).
"It is the independent duty of the court 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." State v.
Reddish, 181 N.J. 553, 613 (2004). Indeed, every "request must concern legal
and factual issues that have been properly raised in the proceedings." State v.
Green, 86 N.J. 281, 290 (1981). Further, "[e]very request must state the correct
principle of applicable law in a manner that is tailored to the facts of the case
A-2899-22 37 and is not misleading." Ibid. "The charge as a whole must be accurate." State
v. Singleton, 211 N.J. 157, 182 (2012).
Defendant contends the court should not have instructed the jury that
whether or not G.P. was wearing a seatbelt was "not relevant to whether or not
defendant caused G.P.'s death." Defendant's argument is incorrect.
In State v. Buckley, 216 N.J. 249, 255 (2013), our Supreme Court held
"fact and expert testimony about the victim's failure to wear a seatbelt [in a
vehicular homicide case] is irrelevant to both 'but for' causation under N.J.S.A.
2C:2-3(a)(1) and the jury's causation determination under the first prong of
N.J.S.A. 2C:2-3(c)'s statutory test – whether defendant was aware that the
manner in which he drove posed a risk of a fatal accident." The Court instructed
if evidence of failure to wear a seatbelt is admitted, "the trial court must instruct
the jury that [the victim's] failure to use a seatbelt is not relevant to 'but for'
causation." Id. at 269. It cautioned, however, "the trial court should be careful
not to state or imply that it is directing a verdict on the issue of causation." Ibid.
In this case, the State initially requested a Buckley seatbelt charge. The
court denied that request because there was no clear evidence G.P. was not
wearing a seatbelt. During deliberations, the jury asked if they were "allowed
to consider the lack of proof that [G.P.] was wearing a seatbelt and K.E. and
A-2899-22 38 defendant were proven to be wearing a seatbelt." Based on that note, the court
determined it was required to give a Buckley charge. It instructed the jury:
The final element the State must prove beyond a reasonable doubt is that the defendant caused G.P.'s death. You must find that G.P. would not have died but for the defendant's conduct.
Causation has a special meaning under the law. To establish causation, the State must prove two elements each beyond a reasonable doubt. First, that but for the defendant's conduct, the victim would not have died. Second, G.P.'s death must have been within the risk of which the defendant was aware.
In determining causation, it is not for you to consider whether or not G.P. was restrained or wearing a [seatbelt] in the motor vehicle. The fact of whether or not G.P. was restrained in the vehicle is not relevant to whether or not the defendant caused G.P.'s death. This, however, does not diminish the State's burden to prove beyond a reasonable doubt that the defendant caused G.P.'s death as I previously instructed you numerous times throughout the jury charge.
The court correctly determined the Buckley charge was required based on the
jury's question and the charge it gave was appropriate.
Defendant also contends the court improperly denied his request for an
intervening causation charge based on our opinion in State v. Eldridge, 388 N.J.
Super. 485 (App. Div. 2006). Defendant's reliance on Eldridge is misplaced.
A-2899-22 39 In Eldridge, the defendant was convicted of vehicular homicide. Id. at
487. She contended the accident was caused by the actions of her front seat
passenger who unexpectedly pushed her head and distracted her, causing her to
swerve and hit a tree. Id. at 493. The defendant testified her ability to drive
was not impaired and "the accident would not have occurred but for [the
passenger] distracting her seconds before the crash." Id. at 493.
We reversed because the court "failed to specifically instruct the jury that
it could find the defendant not guilty if it concluded that the actions of [the]
front seat passenger constituted an intervening cause of the crash." Id. at 488.
We concluded "[t]he 'but for' causation test would exonerate defendant if the
jury accepted her testimony concerning [the passenger's] conduct." Id. at 493.
The court correctly denied defendant's request for an intervening cause
instruction in this case. Unlike in Eldridge, there was no outside or independent
force that caused defendant to leave his lane of travel. He was alone in the car
and there was no evidence that anything other than his own actions interfered
with his ability to drive. His claim that the jury could have found K.E. caused
the accident by swerving into his lane is contradicted by the record. K.E.
testified she only left her lane of travel because she saw defendant's vehicle
driving straight at her in her lane at eighty miles per hour and she attempted to
A-2899-22 40 avoid the collision. The jury heard overwhelming evidence supporting her
version of the accident. There was no intervening cause. Defendant's actions,
and his action alone, caused K.E. to swerve in a futile attempt to avoid the
accident and ultimately caused the accident.
To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
A-2899-22 41