NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4007-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAJEEH GREEN, a/k/a NAJEE GREEN, NAJEE GREENE, NAJEEH M GREEN, and NAJEEH AMIR GREEN,
Defendant-Appellant. _________________________
Submitted October 30, 2024 – Decided December 5, 2024
Before Judges Mayer and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 19-12-3588.
Jennifer N. Selletti, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Najeen Green appeals from a July 25, 2022 amended judgment
of conviction for felony murder, carjacking, aggravated assault, and related
weapons offenses. 1 In the alternative, he argues the sentencing judge erred in
imposing consecutive sentences for felony murder and aggravated assault. We
affirm the convictions and sentence.
I.
We recite the facts from the testimony adduced at trial. During a May 5,
2018 crime spree in Essex County, two men in a white Jeep were implicated in
the shooting of Kyon Coleman, 2 the carjacking of a black Ford Taurus belonging
to Lynn Adams, and causing a collision that killed an innocent bystander,
Priscilla Godoy.
A. Carjacking and Shooting of Kyon
Around 8:00 p.m., Kyon, his wife, and their infant granddaughter were on
Hayes Street in Newark. Kyon stood outside his car and noticed a suspicious
1 On July 15, 2022, the judgment of conviction was amended to reflect the merger and dismissal of counts four and eleven. The judgment of conviction was amended again on July 25, 2022 to reflect the correct aggregate parole ineligibility term. 2 Because some of the witnesses share the same surname, we use first names for easy of reference. We intend no disrespect in doing so. A-4007-21 2 man approach on foot. The man wore a winter coat which struck Kyon as odd
given the warm weather in May. As the man approached, he lowered a ski mask
over his face, pulled a gun from his pocket, and fired at Kyon, striking him three
times. Kyon was transported to the hospital having suffered significant injuries.
B. Carjacking
Between 9:30 and 10:00 p.m. the same day, Adams parked her black Ford
Taurus outside her son's home in East Orange. When Adams left her son's house
and returned to her car, a white Jeep "zoomed" in front of her car, blocking her
ability to drive away. The Jeep's passenger, whom Adams described as a Black
male, 5'11" tall, and approximately 180 pounds, "jumped" out and pointed a gun
in Adams's face. The masked man forced Adams out of the car and drove away
in her car.
The Jeep then drove toward Newark. The gunman who stole the Taurus
followed. Adams and her son reported the incident to the East Orange Police
Department. Based on the information provided, the police dispatcher radioed
local agencies to be on the lookout (BOLO) for a "white Jeep, box-style" and a
black Ford Taurus.
A-4007-21 3 C. Collision and Aftermath
Officer Paul Hamilton of the Newark Police Department heard the BOLO.
About two minutes later, Hamilton saw a "box-style white Jeep Cherokee"
travelling "at a high rate of speed" and "disregard[ing] the stop sign" as it drove
northbound on Chadwick Avenue. Hamilton could hear "the engine revving"
and "the sound of [a tire] rim on the concrete." He saw the Jeep's front right tire
was "blown out," producing "smoke and sparks" from the rim. Hamilton
activated the lights and sirens on his police vehicle and attempted to stop the
Jeep. However, the Jeep "sped off erratically" and Hamilton followed.
The Jeep's driver drove the wrong direction down a one-way street,
continued at "a high rate of speed," hit a speed bump, lost control of the car, and
drove into a median on Fourteenth Street. At the same time, Ronald Coleman
drove down Fourteenth Street, heard "tires screech," and saw a white Jeep
behind him traveling at "high speed." Although Ronald moved over to allow
the Jeep to pass, it "rammed" the rear of Ronald's car. The impact propelled
Ronald's car forward, causing it to strike a third vehicle parked alongside the
curb. The third vehicle then hit a fourth car as part of a "chain reaction." Ronald
went to the hospital to treat a cut to his forehead.
A-4007-21 4 Prior to the crash, Priscilla had been visiting with her uncles and cousin
at their home. Her car was parked on Fourteenth Street. Unfortunately, as she
walked to her car, Priscilla became crushed between two parked cars involved
in the "chain reaction" collision on Fourteenth Street. Police officers and
members of Priscilla's family tried to aid her. Priscilla was eventually extricated
and went to the hospital. She later died from internal bleeding and other
significant injuries caused by the chain reaction collision.
After the collision, the Jeep fled on foot, headed north on Fourteenth
Street, and turned down a driveway.
Officer Hamilton intended to follow the Jeep, but remained at the scene
to help Priscilla. Between his own observations and his dashcam video,
Hamilton observed the fleeing suspect was a Black male, roughly 5'9," wearing
a white t-shirt, dark jeans, and gloves. Priscilla's uncle, Dylan, saw a man in the
middle of Fourteenth Street immediately after the crash. Dylan described the
man as dark-skinned, roughly 5'9", and "not a fat person."
D. Investigation and Arrest
The police investigation of the incidents on May 5, 2018 included witness
interviews, forensic examinations, and review of surveillance video footage.
The police learned the Jeep belonged to Kenneth Washington, who reported his
A-4007-21 5 car missing late on the night of the fatal crash. According to Washington, he
had a grey jacket with a red lining inside his Jeep.
Video footage from area surveillance cameras placed the Jeep near where
Kyon was shot between 9:22 and 9:47 p.m. on May 5, 2018. The footage showed
a man wearing white sneakers, a white t-shirt, a heavy grey coat with red lining,
gloves, and a mask exit the Jeep at 9:42 p.m. At 9:43 p.m., the footage showed
people running, leading officers to pinpoint the firing of gunshots at that precise
time. Around 9:47 p.m., the man in the grey coat ran back to the Jeep.
When investigators searched the Jeep pursuant to a search warrant, they
found a grey jacket with a red lining. Inside the Jeep, the police also found a
spent shell casing marked "R-P 9-millimeter Luger." In the area where Kyon
was shot, the police found three nine-millimeter Winchester casings also marked
"Luger." Further, the police found bullet fragments nearby. As part of the
investigation, the police found a "Glock Model 43 handgun" on the roof of a
garage on Fourteenth Street, near the crash site. The recovered gun contained
Winchester nine-millimeter ammunition. Ballistic testing on the recovered
Glock matched the spent cartridges recovered from the area where Kyon was
shot.
A-4007-21 6 Police also swabbed the Jeep's steering wheel for biological evidence.
The sample collected by the police contained DNA matching defendant.
Additionally, the police swabbed the Glock and tested it for DNA, but the results
were not a match for defendant. Instead, the DNA testing matched an individual
named Kenneth Gunter. The police dismissed Gunter as a suspect in the crime
spree because he did not fit the physical description of the person seen fleeing
the Jeep. According to Gunter's driver's license, he stood 6'3" tall and weighed
200 pounds. Witnesses described the suspect as approximately 5'8" tall with a
"thin build."
In his brief statement to the police on May 10, 2018, while he remained
in the hospital recovering from surgery after the shooting, Kyon described the
shooter as 5'9," wearing a green jacket and mask. In that statement, Kyon never
indicated he saw the shooter's face, nor did the police ask whether he could
identify the suspect.
In December 2018, the police composed a photo array based on the DNA
results. The array contained defendant's photograph, plus five "filler
photographs" of individuals with "similar characteristics." The police presented
the array to Kyon to see if he could identify the shooter.
A-4007-21 7 When the array was administered on December 19, 2018, Kyon
immediately identified defendant as the shooter. After viewing the array, Kyon
said he was a "thousand percent" certain the person in the photograph he selected
was the person who shot him. The police issued a warrant for defendant's arrest
the same day. After an extended search, the police eventually arrested defendant
on June 10, 2019.
II.
In December 2019, defendant was charged in Essex County superseding
indictment, with one count each of first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3), first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(2), first-
degree carjacking, N.J.S.A. 2C:15-2(b)(2), second-degree conspiracy to commit
carjacking, N.J.S.A. 2C:5-2(b)(1) and 15-2(b)(2), second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1), second-degree conspiracy to commit
aggravated assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C12-1(b)(1), and
second-degree vehicular homicide, N.J.S.A. 2C11-5(a). In addition, defendant
was charged with two counts each of second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1), and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a)(1).
A-4007-21 8 On June 21, 2021, defendant moved to suppress Kyon's identification
testimony or, in the alternative, for a Wade/Henderson3 hearing. The judge
heard argument on July 2, 2021 and reserved decision. In a written decision and
order dated August 6, 2021, the judge denied defendant's motion.
On February 14, 2022, defendant moved to admit as evidence at trial
Kyon's 2008 conviction for fourth-degree false incrimination. The judge
addressed the issue with counsel via email and later discussed the motion on the
record on March 8, 2022. The next day, immediately prior to opening
statements, the judge ruled Kyon's 2008 conviction was inadmissible. On March
14, 2022, during the trial and after Kyon testified, the judge issued a written
order and opinion explaining his reasons for denying admission of the 2008
conviction.
Trial took place over thirteen days between March 9 and March 30, 2022.
Defendant elected not to present a case-in-chief. On March 30, 2022, the jury
found defendant guilty on all counts.
On June 6, 2022, defendant filed a pro se motion for a new trial. In a June
22, 2022 order, the judge denied the motion as untimely.
3 United States v. Wade, 338 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011).
A-4007-21 9 Defendant appeared for sentencing on July 11, 2022. The judge granted
the State's motion to sentence defendant as a persistent offender, eligible for
discretionary extended terms, pursuant to N.J.S.A. 2C:44-3(a). After ordering
the appropriate mergers, the judge issued a thirty-year prison term on the felony
murder conviction with a thirty-year parole disqualifier, an extended prison
sentence of sixteen years, subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, with an eighty-five percent parole disqualifier on the aggravated
assault conviction, and a ten-year prison sentence with a five-year parole
disqualifier on each weapons conviction. The judge dismissed the conspiracy
convictions and the merged offenses.
The judge ordered the ten-year sentences for weapons charges and the
sixteen-year sentence for aggravated assault be served concurrently to each
other but consecutively to the thirty-year sentence for felony murder. As a
result, defendant received an aggregate sentence of forty-six years with a parole
ineligibility period of forty-three years, seven months, and four days.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO ADMIT . . . COLEMAN'S PRIOR CONVICTION FOR MAKING A FALSE INCRIMINATION.
A-4007-21 10 POINT II
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS . . . COLEMAN'S OUT-OF-COURT AND IN-COURT IDENTIFICATION OF DEFENDANT.
POINT III
THE TRIAL COURT DENIED DEFENDANT A COMPLETE DEFENSE WHEN IT SUSTAINED THE STATE'S OBJECTION TO TRIAL COUNSEL INQUIRING INTO . . . GUNTER'S CRIMINAL BACKGROUND AND WHETHER POLICE HAD INVESTIGATED HIM AS A POSSIBLE SUSPECT.
POINT IV
THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENSE REQUEST FOR A LIMITING INSTRUCTION AS TO DETECTIVE SCHNEIDERMAN'S TESTIMONY.
POINT V
THE TRIAL COURT'S CUMULATIVE ERRORS DENIED DEFENDANT A FAIR TRIAL.
POINT VI
THE TRIAL COURT'S DENIAL OF DEFENDANT'S PRO SE MOTION FOR A NEW TRIAL AS IT WAS FILED LATE WAS MANIFESTLY UNFAIR.
A-4007-21 11 POINT VII
THE IMPOSITION OF MULTIPLE CONSECUTIVE SENTENCES WAS MANIFESTLY UNFAIR AND EXCESSIVE.
III.
We first address defendant's argument that the judge erred in denying his
motion to suppress Kyon's identification of him as the shooter. He claims the
photo array was tainted by an outside source which the police never explored.
At a minimum, defendant asserts the judge should have conducted an evidentiary
hearing to further address the issue. We disagree.
We defer to a trial judge's evidentiary ruling, including the admissibility
of an eyewitness identification, absent an abuse of discretion. State v. Garcia,
245 N.J. 412, 430 (2021). Under that deferential standard, we "review a trial
court's evidentiary ruling only for a 'clear error in judgment.'" State v. Medina,
242 N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)).
Additionally, we review the denial of a Wade/Henderson hearing for abuse of
discretion. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004).
Similarly, we will uphold the admission of an out-of-court identification so long
as it is supported by sufficient credible evidence in the record. State v. Wright,
444 N.J. Super. 347, 356 (App. Div. 2016) (citing State v. Johnson, 42 N.J. 146,
A-4007-21 12 161 (1964)). "[R]eview of the trial court's application of the law to the facts,
however, is plenary." Id. at 357; see also Rowe v. Bell & Gossett Co., 239 N.J.
531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
Under Henderson, "to obtain a pretrial hearing [on the admissibility of an
eyewitness identification], a defendant has the initial burden of showing some
evidence of suggestiveness that could lead to a mistaken identification." 208
N.J. at 288. Such a showing must be based on evidence of suggestiveness
stemming from system variables, "factors like lineup procedures which are
within the control of the criminal justice system." Id. at 218. System variables
include whether an identification was administered blindly and without post-
identification feedback, whether the pre-lineup instructions and the lineup itself
were properly designed, whether a witness viewed a suspect multiple times,
whether the images in a lineup were presented simultaneously or sequent ially,
whether a composite sketch was developed, and whether a single suspect
"showup" procedure was conducted. Id. at 248-61. Additionally, evidence of
misidentification may be demonstrated by suggestive conduct of third-party
actors. Id. at 247, 268-71 (citing State v. Chen, 208 N.J. 307, 322-23 (2011)).
A-4007-21 13 "[W]hen a defendant presents evidence that an identification was made
under highly suggestive circumstances that could lead to a mistaken
identification," including those brought about by a third party, a trial judge
should grant a preliminary hearing. Chen, 208 N.J. at 311, 322. However, the
defendant must show "some evidence of highly suggestive circumstances." Id.
at 327.
If a defendant produces some evidence of significant suggestiveness, "the
State must then offer proof to show that the proffered eyewitness identification
is reliable—accounting for system and estimator variables." Henderson, 208
N.J. at 289. Estimator variables, which are outside the control of the legal
system, include stress, weapon focus, duration, distance and lighting, witness
characteristics, memory decay, race-bias, opportunity to view the criminal,
degree of attention, accuracy of prior descriptions, level of certainty
demonstrated at identification before feedback, and time between the crime and
confrontation. Id. at 291-93. However, "eyewitness identification evidence will
likely not be ruled inadmissible at pretrial hearings solely on account of
estimator variables." Id. at 294. Rather, the presence and impact of estimator
variables may be explored on cross-examination and factored into the issuance
of proper jury instructions. Id. at 294, 296-98. Ultimately, the "burden remains
A-4007-21 14 on the defendant to prove a very substantial likelihood of irreparable
misidentification." Id. at 289. After weighing the evidence, if the judge
determines the defendant has met this burden, "the court should suppress the
identification evidence." Ibid.
Here, while at the hospital after the shooting, Kyon gave a brief statement
to the police. In that statement, Kyon indicated the shooter was roughly 5'9"
and wore a ski mask. Seven months later, Kyon selected defendant's picture
from a photo array, identifying him as the shooter and indicating a high level of
confidence.
In seeking to suppress Kyon's identification, defendant argued that police
violated their obligation under Henderson, 208 N.J. at 270, by failing to ask
Kyon at the time of the array if he spoke to any third parties about the suspect's
identity. Because Kyon's wife and sister-in-law also witnessed the shooting,
defendant argued Kyon likely had "at least some communication" with a third
party about the shooter's identity. Further, defendant argued Kyon's "story . . .
significantly changed" between the night of the shooting and the administration
of the photo array. Defendant also identified several estimator variables he
intended to address at the requested hearing.
A-4007-21 15 The judge denied the suppression motion without a hearing. The judge
noted defendant failed to produce affirmative evidence of third-party
interference regarding identification of the suspect, stating, "[d]efendant
speculates that the witness communicated" and presented "no evidence . . . that
such actions or discussions actually occurred." Based on Kyon's high degree of
confidence in identifying the suspect and signing the identification statement
presented by the police, the judge concluded "the identification techniques were
not impermissibly suggestive so as to result in irreparable misidentifications ."
Thus, the judge held defendant was not entitled to a hearing on the issue.
We reject defendant's argument that Kyon's identification was unreliable,
triggering the need for an evidentiary hearing. The judge did not abuse his
discretion in denying defendant's suppression motion because defendant failed
to adduce evidence of suggestiveness other than sheer speculation. Although
the police failed to inquire whether Kyon was influenced by anyone prior to
identifying defendant from the photo array, there is no evidence in the record to
suggest Kyon was impermissibly influenced by third parties prior to identifying
defendant as the shooter.
Nor do we agree that Kyon significantly changed his statement to the
police between May 2018 and December 2018. Kyon's May 2018 statement was
A-4007-21 16 taken at the hospital five days after the shooting, the same day he awoke from a
medically induced coma. The officer conducting the hospital interview
explained the session was brief due to Kyon's medical condition. During this
brief interview, Kyon provided the suspect's height and identified the shooter as
wearing a green jacket and black mask. The interviewing officer never asked if
Kyon saw the shooter's face. When asked to identify the suspect several months
later, after Kyon recovered from his surgeries, Kyon understandably offered
more information than before.
On this record, we agree defendant failed to meet his burden of producing
the type of highly suggestive evidence to warrant a hearing. Thus, the judge
correctly denied defendant's motion to suppress the out-of-court identification.
IV.
We next consider defendant's argument that the judge erred in denying his
motion to admit Kyon's 2008 conviction for false incrimination as impeachment
evidence. The judge determined the 2008 conviction was inadmissible under
N.J.R.E. 609(b) because it was more than ten years old and its probative value
did not outweigh its likely prejudicial effect.
N.J.R.E. 609 governs the admission of prior convictions for the purpose
of impeachment. Generally, evidence of prior convictions "shall be admitted"
A-4007-21 17 to attack the credibility of the previously convicted witness. N.J.R.E. 609(a)(1).
However, when the latter of either the date of conviction or release from
confinement occurred more than ten years before the start of trial, the conviction
"is admissible only if the court determines that its probative value outweighs its
prejudicial effect, with the proponent of that evidence having the burden of
proof." N.J.R.E. 609(b)(1). In making this assessment, the court may consider:
(i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud,
(iii) how remote the conviction is in time, [and]
(iv) the seriousness of the crime.
[N.J.R.E. 609(b)(2).]
N.J.R.E. 609(b) "creates a presumption that a conviction more remote than
ten years is inadmissible for impeachment purposes," unless the proponent can
show that the probative effect of the evidence outweighs its inherent prejudice.
State v. R.J.M., 453 N.J. Super. 261, 266-67 (App. Div. 2018). As with other
evidentiary rulings, we review a trial judge's decision on admission of a prior
conviction under N.J.R.E. 609 for abuse of discretion. Garcia, 245 N.J. at 430.
A-4007-21 18 Kyon had several prior convictions. In 2012 and again in 2015, he was
convicted of third-degree possession of a controlled dangerous substance (CDS).
In 2018, he was convicted of third-degree possession of CDS and third-degree
manufacturing, distribution, or possession with intent to manufacture or
distribute CDS. Prior to the trial, the judge granted defendant's application to
admit Kyon's CDS convictions as impeachment evidence.
However, the judge declined to admit Kyon's 2008 conviction for fourth-
degree false incrimination following his guilty plea to giving a false name to
police. Police arrested Kyon during a traffic stop because he gave a false name
to police and concealed marijuana in his clothing. Kyon was sentenced to a two-
year probationary term and time served.
Prior to trial, defendant argued Kyon's multiple intervening CDS
convictions, coupled with the 2008 conviction involving a "crime of
dishonesty," met the requirements for admission of the 2008 conviction under
the first and second factors of N.J.R.E. 609(b)(2). While the 2008 conviction
was beyond the ten-year threshold, defendant asserted the conviction was "not
substantially older" and therefore the remoteness factor did not weigh
significantly in the N.J.R.E. 609(b)(2) analysis. Further, defendant argued the
crime of false incrimination was amended by the legislature and constituted a
A-4007-21 19 third-degree offense as of the time defendant faced trial, supporting the fourth
factor under N.J.R.E. 609(b)(2). Additionally, defendant argued the 2008
conviction went directly to the issue of Kyon's credibility because Kyon offered
different descriptions of the shooter in his first statement to police and his later
statement to the police, presenting "a pitched credibility battle." 4 Defendant also
asserted that absent Kyon's identification of defendant as the shooter, the State
lacked a case against him as to the attempted murder, aggravated assault, and
weapons charges. Because defendant challenged Kyon's credibility and
veracity, defendant contended the probative value of Kyon's 2008 conviction
outweighed any prejudice.
In denying the motion, the judge reviewed the factors under N.J.R.E.
609(b)(2). The judge concluded the prior CDS offenses were not "violent or
extremely serious" offenses and therefore did not weigh heavily in his analysis
under the first factor. Next, the judge found "a false incrimination conviction
can only fairly be stated to involve a crime of dishonesty, lack of veracity, or
fraud" and thus found the second factor weighed in defendant's favor.
The judge focused his analysis on the third factor, remoteness of the 2008
conviction. He found that the passage of fourteen years since the 2008
4 State v. Frisby, 174 N.J. 583, 593-94 (2002). A-4007-21 20 conviction was "significantly more than" the ten-year cutoff, and that factor
weighed in favor of the State. The judge also held the fourth factor, the
seriousness of the crime, weighed in the State's favor because both third and
fourth-degree crimes were "among the lowest degrees in our criminal justice
system, reflecting an understanding that these types of crimes are not the most
serious." Further, the judge explained the 2008 conviction involved a motor
vehicle violation and possession of a small amount of marijuana. Thus, the
judge concluded the offenses were not so serious and weighed in favor of the
State. Based on these findings, the judge held defendant failed to prove the
probative value of the evidence outweighed its prejudicial effect.
Further, the judge determined the admission of Kyon's 2008 conviction
would violate N.J.R.E. 403. Based solely on the name assigned to the offense
leading to Kyon's 2008 conviction, the judge noted there was a risk the jury
could impermissibly conclude Kyon was likely to incriminate defendant falsely.
The judge granted defendant's motion to admit Kyon's more recent CDS
convictions for impeachment purposes.
Because attacking Kyon's credibility was central to the defense strategy,
defendant contends that the judge's ruling denied him "a meaningful opportunity
to present a complete defense." State v. Garron, 177 N.J. 147, 168 (2003). A
A-4007-21 21 "defendant enjoys a fundamental constitutional right to a fair trial, which
necessarily includes the right to present witnesses and evidence in his own
defense." State v. Jenewicz, 193 N.J. 440, 451 (2008) (citing Washington v.
Texas, 388 U.S. 14, 19 (1967)). "Although fundamental, a defendant's right to
present a defense is not absolute." Ibid. (citing Montana v. Egelhoff, 518 U.S.
37, 42 (1996)).
Even if the judge erroneously determined Kyon's 2008 conviction was
inadmissible, we conclude any error was harmless considering the totality of the
evidence against defendant in this case. There was other sufficient and credible
evidence in the record linking defendant to the crime spree on May 5, 2018.
Thus, we are satisfied precluding the admission of Kyon's 2008 conviction was
not clearly capable of producing an unjust result.
We next consider defendant's argument that the judge deprived him of the
right to "a complete defense and a fair trial" by disallowing certain questions
regarding Gunter's criminal history. At one point, Gunter was a person of
interest in the case based on DNA evidence linking him to the gun recovered on
the garage roof. The police pursued Gunter "briefly," but abandoned any theory
A-4007-21 22 that he was the shooter because his physical characteristics did not match the
shooter's description.
While cross-examining Detective Matthew Schneiderman, defense
counsel asked whether the police took "any other investigative steps or actions"
to link Gunter to the shooting or determine whether Gunter had a criminal
record, including unlawful possession of a weapon. The State objected to
defense counsel's cross-examination of the detective regarding Gunter's criminal
history. The judge sustained the objection, ruling the testimony's probative
value was outweighed "by potential for misleading the jury, and confusing the
issues."
We defer to a trial court's decision to admit or exclude evidence unless the
court abused its discretion. Garcia, 245 N.J. at 430. N.J.R.E. 403 provides that
evidence "may be excluded if its probative value is substantially outweighed by
the risk of" either "[u]ndue prejudice, confusion of issues, or misleading the
jury," or "[u]ndue delay, waste of time, or needless presentation of cumulative
evidence." N.J.R.E. 404(b)(1) provides that "evidence 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."
A-4007-21 23 Defendant is entitled to "a meaningful opportunity to present a complete
defense," which includes the "right to introduce evidence of third-party guilt."
State v. R.Y., 242 N.J. 48, 66 (2020) (quoting Garron, 177 N.J. at 168; and then
quoting State v. Cotto, 182 N.J. 316, 332 (2005)). Evidence of third-party guilt
"must be capable of demonstrating some link between the [third-party] evidence
and the victim or the crime." Id. at 67 (quoting State v. Perry, 225 N.J. 222, 239
(2016)). And, even if evidence meets this standard, the court must still
"determine whether it would be admissible under the New Jersey Rules of
Evidence." Id. at 69.
In this case, defense counsel was permitted to ask questions relevant to a
third-party guilt defense, including the thoroughness of the police investigation
of Gunter as a suspect. However, the judge did not allow defense counsel to
inquire about any particular charges against Gunter as such information was not
capable of establishing a link between Gunter and offenses in this case. Despite
this limitation, defense counsel presented a third-party guilt defense to the jury
and argued during summation that the police did a less-than-adequate job in their
investigation of Gunter as a suspect.
Even if the judge erred in limiting defense counsel's questioning of
Schneiderman, the error was harmless. The "harmless error standard . . .
A-4007-21 24 requires that there be 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 [it] led the jury to a verdict it otherwise might not have reached."
State v. Ingram, 196 N.J. 23, 49 (2008) (alteration in original) (quoting State v.
R.B., 183 N.J. 308, 330 (2005)).
In reviewing the record, defense counsel asked numerous questions about
Gunter and the extent to which police investigated him as a suspect. Further,
given that evidence suggesting two people were involved in the May 5, 2018
crime spree, inculpating Gunter as a suspect would not have exonerated
defendant. Thus, we are satisfied the judge did not abuse his discretion in
precluding questions about Gunter's criminal record.
VI.
Next, defendant argues the judge erred in failing to issue a limiting
instruction regarding Schneiderman's testimony concerning the forensic
investigation of the Jeep. The detective told the jury that the State Police
forensic laboratory would not accept certain samples for testing. Based on his
training and experience with the forensic laboratory's testing procedure,
Schneiderman instructed another officer to swab only the Jeep's steering wheel
and not the door handle or gear shift. Defense counsel asked the judge to issue
A-4007-21 25 a limiting instruction advising the jury that the witness "cannot testify as to what
other people who are not him are thinking when they do or do not accept or
reject certain pieces of evidence."
The judge denied defense counsel's request for a limiting instruction. The
judge noted defense counsel "put into play what decisions were made to do what
and why," and by extension, "called into question the decisions that this witness
made [and] why." In denying defendant's request for a limiting instruction, the
judge stated defense counsel could address the issue on cross-examination and
renew the application for an instruction, if necessary, after completing cross-
examination of the witness.
On continued cross-examination, Schneiderman agreed the swab from the
Jeep's steering wheel was "the only DNA swab that was taken from either the
car itself or any other items in" the vehicle. Defense counsel had Schneiderman
list items recovered at or near the scene which were not tested for DNA. Defense
counsel also highlighted that Schneiderman never made any written record of
his reasons for limiting DNA testing to the Jeep's steering wheel. Even though
three forensic scientists with the New Jersey State Police testified after
Schneiderman, neither party's counsel asked if Schneiderman's understanding of
the forensic laboratory's testing policies was accurate.
A-4007-21 26 As stated previously, we review a trial judge's evidentiary rulings under
an abuse of discretion standard. Garcia, 245 N.J. at 430. N.J.R.E. 105 provides:
"When evidence is admitted as to one party or for one purpose but is not
admissible as to another party or for another purpose, the court, upon request,
shall restrict the evidence to its proper scope and shall instruct the jury
accordingly."
Here, Schneiderman never testified about statements, opinions, or
mindsets of other forensic experts in the State Police Laboratory. Further, based
on his own personal experience in submitting crime scene evidence for testing,
Schneiderman explained why certain samples would or would not be accepted
by the forensic laboratory. Schneiderman never offered testimony as to why the
forensic laboratory accepted or rejected samples. Schneiderman's testimony
focused on his own perceptions based on his extensive dealings with the forensic
laboratory. If Schneiderman's testimony was not an accurate reflection of the
forensic laboratory's policy, defense counsel had ample opportunity to present
evidence to that effect but did not do so.
Even if the judge erred by declining to give a limiting instruction on this
issue, such an error was harmless in this case. Here, the State Police forensic
laboratory found defendant's DNA on the Jeep's steering wheel.
A-4007-21 27 VII.
We reject defendant's argument that cumulative errors during the course
of his trial warrant a reversal of his convictions. "[E]ven when an individual
error or series of errors does not rise to reversible error, when considered in
combination, their cumulative effect can cast sufficient doubt on a verdict to
require reversal." Jenewicz, 193 N.J. at 473. "Where the aggregation of legal
errors renders a trial unfair, a new trial is required." State v. T.J.M., 220 N.J.
220, 238 (2015). However, this principle does not apply "where no error was
prejudicial and the trial was fair." Ibid. (quoting State v. Weaver, 219 N.J. 131,
155 (2014)).
Defendant failed to demonstrate any error or pattern of errors rising to the
level, either singly or cumulatively, that denied him a fair trial. "A defendant is
entitled to a fair trial but not a perfect one." R.B., 183 N.J. at 334 (quoting
Lutwak v. United States, 344 U.S. 604, 619 (1953)).
VIII.
We next consider defendant's argument that the judge erred in dismissing
defendant's pro se motion for a new trial as untimely. The judge found the
motion was filed outside the ten-day window under Rule 3:20-2 and declined to
address the merits of defendant's arguments.
A-4007-21 28 We review legal conclusions, including the interpretation of the court
rules and statutes of limitation, de novo. See State v. Dickerson, 232 N.J. 2, 17
(2018) (court rules); Save Camden Pub. Schs. v. Camden City Bd. of Educ., 454
N.J. Super. 478, 487 (App. Div. 2018) (statute of limitations). Rule 3:20-1
provides that a "trial judge on defendant's motion may grant the defendant a new
trial if required in the interest of justice." The time in which such a motion can
be made is governed by the nature of the motion:
A motion for new trial based on the ground of newly- discovered evidence may be made at any time, but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within [ten] days after the verdict or finding of guilty, or within such further time as the court fixes during the [ten]-day period.
[R. 3:20-2.]
In this case, the jury rendered its verdict on March 30, 2022. Defendant
filed his pro se motion for a new trial hand-dated June 6, 2022, and file-stamped
June 20, 2022.
We are satisfied the judge did not err in dismissing defendant's new trial
motion as time-barred. Rule 3:20-2 provides that a motion for a new trial shall
generally be made "within 10 days after the verdict or finding of guilty, or within
A-4007-21 29 such further time as the court fixes during the 10-day period." The rule provides
the court with discretion to enlarge the ten-day window but only if the allowance
is made "during the [ten]-day period." Ibid.
Defendant asserts Rule 1:1-2(a) allows for the relaxation of any rule "if
adherence to it would result in an injustice . . . [u]nless otherwise stated."
Defendant overlooks Rule 1:3-4(c), stating "[n]either the parties nor the court
may, however, enlarge the time specified by . . . R. 3:20-2." Thus, contrary to
defendant's argument, the relaxation provision under Rule 1:1-2(a) is
inapplicable because Rule 1:3-4(a) states otherwise.
Consistent with the court rules, the judge was required to enforce the time
bar under Rule 3:30-2. Thus, we are satisfied the judge did not err in denying
defendant's motion for a new trial.
IX.
We next address defendant's argument that the judge erred in imposing
consecutive sentences by incorrectly applying State v. Yarbough, 100 N.J. 627
(1985). We reject this argument.
We review a sentencing determination under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015). "On appellate review, the court will apply
an abuse of discretion standard to the sentencing court's explanation for its
A-4007-21 30 sentencing decision within the entire range." State v. Pierce, 188 N.J. 155, 169-
70 (2006). The deferential standard of review applies "only if the trial judge
follows the [Criminal] Code and the basic precepts that channel sentencing
discretion.'" State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Case,
220 N.J. 49, 65 (2014)).
With respect to a decision whether to impose concurrent or consecutive
sentences, a sentencing court should adhere to the principle that "there can be
no free crimes in a system for which the punishment shall fit the crime." State
v. Carey, 168 N.J. 413, 422 (2001) (quoting Yarbough, 100 N.J. at 643). Thus,
a sentencing court should consider the extent to which:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims; [and]
(e) the convictions for which the sentences are to be imposed are numerous.
[Carey, 168 N.J. at 422-23 (quoting Yarbough, 100 N.J. at 644).]
A-4007-21 31 A sentencing judge is required to weigh these criteria qualitatively rather
than quantitatively. Id. 427-28. A sentencing judge must also separately state
the reasons for imposing a concurrent or consecutive sentence in the sentencing
decision. Yarbough, 100 N.J. at 643. Further, a proper Yarbough sentencing
assessment requires the judge provide "[a]n explicit statement explaining the
overall fairness of a sentence imposed on a defendant for multiple offenses in a
single proceeding or in multiple sentencing proceedings." State v. Torres, 246
N.J. 246, 268 (2021).
Here, the judge ordered the thirty-year felony murder sentence be served
consecutively to all others, resulting in an aggregate sentence of forty-six years.
In addressing the Yarbough factors as applied to the assault and murder
convictions, the judge found that they were "two separate crimes with
predominantly independent objectives." The judge stated the objective of the
assault was to "perpetrate an act of violence against [Kyon]," while the acts
leading to Priscilla's death were done "to [e]llude the police." Thus, the judge
determined each crime "involve[d] separate acts of violence against two
different individuals." The judge further found the acts were "committed at
different times, in separate locations, rather than being [committed] so closely
in time and place as to indicate a single period of abhorrent behavior." He
A-4007-21 32 explained defendant shot Kyon on Hayes Street, committed the intervening
carjacking on Seventeenth Street, and killed Priscilla on Fourteenth Street. The
judge properly assessed the overall sentence in light of the nature and number
of the offenses, as well as the aggravating and mitigating factors, and determined
the sentence imposed was fair under the circumstances.
Having reviewed the record, we are satisfied the sentencing judge's factual
findings that the shooting of Kyon and the collision that killed Priscilla were
unconnected and separated by time and location such that the acts were not part
of the same incident is supported by the record. The judge followed the
applicable law, rendered factual findings, and his findings are sufficiently
supported by the evidence. Thus, the sentencing judge did not abuse his
discretion in imposing consecutive terms.
Affirmed.
A-4007-21 33