STATE OF NEW JERSEY VS. FERDINAND C. AUGELLO (18-04-0517, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 20, 2021
• Docket: A-2203-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2203-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERDINAND C. AUGELLO,

Defendant-Appellant. _________________________

Submitted January 5, 2021 – Decided April 20, 2021

Before Judges Gilson, Moynihan, and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 18-04-0517.

Kelly Anderson Smith, attorney for appellant.

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM A jury found defendant Ferdinand C. Augello guilty of first-degree

racketeering (RICO1), N.J.S.A. 2C:41-2(c), and conspiracy to racketeer,

N.J.S.A. 2C:41-2(d) (count one); first-degree leader of a drug trafficking

network, N.J.S.A. 2C:35-3 (count two); third-degree distribution of a controlled

dangerous substance, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b) (count

three); first-degree conspiracy to distribute a controlled dangerous substance,

N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b) (count four); first-degree murder,

N.J.S.A. 2C:11-3(a)(1) (count five); and first-degree attempted murder, N.J.S.A.

2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a)(1) (count nine), in connection with: the

murder of April Kauffman (April), 2 the wife of Dr. James Kauffman

(Kauffman); an OxyContin distribution network operated through Kauffman's

medical practice; and a plot to murder Kauffman. Defendant appeals from the

judgment of conviction, arguing:

1 The source of New Jersey's racketeering laws, N.J.S.A. 2C:41-1 to -6.2, is the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961 to 1968, commonly known as the RICO Act or RICO. State v. Ball [Ball II], 141 N.J. 142, 156 (1995); see also State v. Taccetta, 301 N.J. Super. 227, 245 (App. Div. 1997). As such, the New Jersey laws are often also collectively referred to as the RICO Act, as was the case during the pretrial and trial proceedings in the Law Division. 2 We use some given names in this opinion for clarity. We mean no disrespect or familiarity by our practice. A-2203-18 2 POINT I

THE TRIAL COURT FAILED TO SUPPRESS IMPROPER, HIGHLY PREJUDICIAL 404(B) EVIDENCE[.]

POINT II

THE STATE IRREPARABLY PREJUDICED JURORS AGAINST THE DEFENDANT BY [ITS] INFLAMMATORY COMMENTARY AND IMPROPER REFERENCES[.]

A. The State Relied upon Inappropriate Comments and Inferences Throughout [Its] Entire Opening Remarks[.]

B. The Summation Was Replete with Misconduct[.]

POINT III

THE TRIAL COURT'S INSUFFICIENT AND IMPROPER INSTRUCTIONS AND JURY CHARGES DENIED DEFENDANT A FAIR AND IMPARTIAL TRIAL[.]

A. Defendant was Prejudiced and Suffered Irreparable Harm When the Trial Court Failed to Provide the Jury with Timely and Sufficient Limiting Instructions Regarding Bad Acts Testimony.

B. The Jury Charges Were Insufficient and Incomplete.

A-2203-18 3 POINT IV

THE TRIAL COURT IMPROPERLY ADMITTED HEARSAY STATEMENTS[.]

A. It Was Improper to Admit All Co- Conspirator Statements[.]

B. The Trial Court Committed Error in Admitting Hearsay Statements of the Victim[.]

C. The "Jacobs Letter" Was Improperly Admitted to the Jury[.]

POINT V

THE TRIAL COURT ERRED IN FAILING TO COMPEL FULL DISCOVERY OF STATE'S MATERIAL WITNESS[.]

POINT VI

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INCLUDE AN AMENDED CHARGE OF VICARIOUS ACCOMPLICE LIABILITY AFTER THE TESTIMONY WAS COMPLETE AND CROSS- EXAMINATION HAD FINALIZED[.]

POINT VII

THE STATE'S EXPERT WAS IMPROPERLY PERMITTED TO TESTIFY WITHOUT AN EXPERT REPORT[.]

A-2203-18 4 POINT VIII

THE CUMULATIVE ERRORS COMMITTED BY THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL AND RESULTED IN A MANIFEST INJUSTICE[.]

Unpersuaded, we affirm.

I

The trial evidence revealed Kauffman used his medical practice to illicitly

distribute OxyContin to defendant, who was a retired member of the Cape May

chapter of the Pagan Motorcycle Club (Pagans), and to defendant's associates,

namely, the cooperating witness, Andrew Glick, and co-defendants Beverly

Augello (defendant's ex-wife), Joseph Mulholland, Glenn Seeler, Tabitha

Chapman, and Sheryl Pizza. All six associates testified at trial about their

participation in the drug distribution ring and defendant's role in it .

Beginning in 2011, defendant referred individuals to Kauffman who, in

exchange for $100, wrote prescriptions for 120 OxyContin pills. The

individuals then gave defendant either cash or half of the prescription—sixty

pills—which he would sell. In Chapman's case, defendant would accept

massages rather than cash because she had no money. Each member of the

distribution ring would typically see Kauffman in his office once per month, but

sometimes Kauffman would write an individual two prescriptions, dated thirty

A-2203-18 5 days apart, in exchange for $200. Defendant never personally saw Kauffman in

his medical office, but occasionally he would have his associates deliver notes

on his behalf to Kauffman.

In addition to that testimony, the State also presented evidence of

pharmacy transactions related to the distribution of regulated narcotics.

The trial testimony of April's daughter Kimberly Pack, sister-in-law Julia

Loftus, and best friend Lee Darby revealed the Kauffmans had a tumultuous

marriage, and April had long expressed a desire for a divorce. Because

Kauffman resisted that wish, April threatened to drive Kauffman into debt by

spending exorbitant amounts of money and to expose the illegal drug

distribution ring.

In the fall of 2011, defendant proposed to Mulholland that he kill April.

Mulholland testified defendant told him Kauffman had wanted April killed

because she was spending about $100,000 per month "and she knew . . . what he

was doing and she was going to blow the drug ring up." Mulholland declined

defendant's offer to kill April for $10,000 of the $30,000 Kauffman was willing

to pay defendant.

Defendant also solicited Glick and Seeler, as well as Joseph Drinhouser—

a member of the Pagans who was not involved in the distribution ring—to kill

A-2203-18 6 April; all declined. In addition to defendant, Kauffman also asked Mulholland

directly if he would be willing to kill his wife for $100,000. Mulholland testified

that he had declined that offer as well.

According to Mulholland's testimony, defendant ultimately recruited

Francis Mulholland (Frank)—no relation to Mulholland—to murder April.

Mulholland introduced Frank, a heroin addict, to defendant after Frank had said

he wanted to be part of the distribution ring. Mulholland testified that the plan

was for Kauffman to leave his front door open after he left for work in the

morning, allowing Frank entry to the house where he would shoot April, who

they surmised would still be asleep in her room. Phone records during this time

showed an increase in communications between defendant and Kauffman.

At defendant's direction, during the early morning hours on May 10, 2012,

Mulholland drove Frank to the Kauffmans' home, dropped Frank off on the side

of the road and drove to a diner in Somers Point. Frank later met Mulholland at

the diner where Frank showed him a small handgun and reported that "he did

the job." Frank said he had fired two shots at April who screamed. Mulholland

called defendant and reported April was dead. Mulholland then drove to Frank's

home; when Frank got out of the car, he gave Mulholland $1,000 and took the

handgun with him. Frank told Mulholland defendant had paid him $10,000 for

A-2203-18 7 the murder. Frank subsequently told Mulholland he had disposed of the

handgun.

Defendant's ex-wife, Beverly, testified that on the morning of April's

murder, defendant was at their sign business when she arrived at 7:30 a.m. Not

long after her arrival, defendant told her to make an appointment with Kauffman

because he had an envelope for defendant. Beverly saw Kauffman at 9:00 a.m.,

and he gave her prescriptions for her allergies and for 120 OxyContin pills. As

she left the office, she picked up a sealed "white business-sized envelope" that

she guessed, was about a quarter-inch thick and had "Fred" written on it. She

gave the envelope to defendant at the sign shop. He put it inside a drawer and

locked it.

Glick testified the drug distribution ring had continued to operate after

April's murder, but defendant had discontinued recruiting new individuals to

participate because the doctor started restricting who could get pills. Kauffman

also increased the price of his prescriptions from $100 to $500.

Seventeen months after April's murder, Frank died of an apparent heroin

overdose at his home. Mulholland testified he was there when Frank's body was

discovered. Mulholland said when he told defendant about Frank's death,

defendant "just smirked." Mulholland also testified that defendant was fearful

A-2203-18 8 Frank was an addict who would have cooperated with law enforcement if he

were arrested.

Several years later, on June 13, 2017, while April's murder remained

unsolved, Kauffman was arrested on unrelated charges for prescription fraud

and weapons offenses. When Glick went to Kauffman's office to retrieve his

medical records, he was told his records were among those seized by the Atlantic

County Prosecutor's Office (ACPO). Glick went to the ACPO after arranging

with Detective James Scoppa to pick up his records. Scoppa questioned him

about his relationship with Kauffman and the prescriptions Kauffman wrote for

him—particularly a prescription that was written on the day after April's murder.

Glick told the detective he had not seen the doctor that day, rather that

prescription was one Kauffman had written the month before but post-dated to

May. Glick told Scoppa he knew nothing about the murder and wanted to speak

to an attorney before answering any more questions. Later in the meeting,

Scoppa told Glick that he was aware that Glick was selling illegal substances,

particularly methamphetamine. Glick admitted to it but denied selling

prescription pain medication.

Glick was arrested for drug distribution on November 1, 2017. He agreed

to cooperate with the ACPO in the investigation of April's murder by recording

A-2203-18 9 his conversations with defendant and others. To prompt discussion with

defendant about the murder, Scoppa gave Glick a letter (the Jacobs Letter)

authored by Kauffman's attorney, Edwin Jacobs, Jr., which was sent to the

ACPO in March 2017 and connected defendant and Frank to the murder.

Glick testified, and the recordings played at trial showed, that during his

conversations with defendant, defendant would turn on the radio and write notes

to Glick to communicate information that he did not want to say aloud.

Defendant was heard to say on one of the recordings that he was "convinced that

[his] phone [was] tapped" and thus was careful with his words. When Glick

informed defendant of the Jacobs Letter, defendant made clear that he wanted a

copy of the letter. He also wrote a note saying, "the doc would be dead in two

days."

Later recordings also revealed that defendant had sought to have

Kauffman murdered. During the conversations, defendant often called

Kauffman "a rat." He also acknowledged having had a meeting with Kauffman

at which Kauffman said defendant's name out loud causing defendant to worry

he was being recorded. And they discussed selling Kauffman's car; defendant

worried that would connect him to April's murder.

A-2203-18 10 The recordings also revealed conversations with defendant and others

pertaining to the drug distribution ring and April's murder. Defendant

acknowledged he had made his associates money as a result of the drug

distribution ring: "I mean I made us money[.]"

Kauffman committed suicide in jail while awaiting trial.

II

We review defendant's varied evidential arguments, recognizing "the

decision to admit or exclude evidence is one firmly entrusted to the trial court's

discretion." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-

84 (2010); see also State v. Scott, 229 N.J. 469, 479 (2017). We "apply a

deferential standard in reviewing a trial [judge's] evidentiary rulings and uphold

its determinations 'absent . . . an abuse of discretion.'" Scott, 229 N.J. at 479

(quoting State v. Perry, 225 N.J. 222, 233 (2016)). An abuse of discretion may

be shown if there is a "clear error in judgment" or a ruling that would result in

"a manifest denial of justice." Ibid. (quoting Perry, 225 N.J. at 233).

A

Defendant first challenges the admission of evidence about the "customs,

rules, and belief systems" of the Cape May chapter of the Pagans—of which he

was past president—claiming it was not direct evidence but prior-bad-act

A-2203-18 11 evidence, N.J.R.E. 404(b), that should have been analyzed under the Cofield

test.3 Defendant argues that evidence "unfairly made [defendant] out to be a

menace due to Pagan association[,] not because of his own actions"; and the trial

judge erred by "failing to properly limit the witness' testimony of unnecessary

and irrelevant details that destroyed . . . [d]efendant's image and bolstered his

propensity for violence," precluding his right to "a fair and unbiased trial."

The trial judge granted the State's pretrial motion to admit evidence

regarding the Pagans as "admissible to establish the elements of the RICO

charge and the underlying conspiracies." The judge did not abuse his discretion

because the evidence was relevant to the elements of the indictment's RICO

count alleging defendant, Chapman, Pizza, Seeler, Beverly, and Mulholland, as

well as Kauffman and other unnamed persons, were "coconspirators and

3 Under State v. Cofield, 127 N.J. 328, 338 (1992), the party proffering evidence of a prior bad act must prove: 1. The evidence of the other crime must be admissible as relevant to a material issue; 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. A-2203-18 12 members or associates of [a] criminal enterprise," who committed racketeering.

Accordingly, the evidence was not subject to analysis under N.J.R.E. 404(b).

Before fully addressing that issue, we first reject defendant's contention

that the trial judge made a blanket preliminary ruling to admit all Pagan -related

evidence, subject only to the judge's prohibition against describing the Pagans

as a gang or an "outlaw" motorcycle club. After the assistant prosecutor

responded to the judge's call for a "need to know" how evidence about the

Pagans' customs, beliefs and operations was "going to come in if it[] [was]

coming in[,]" by naming the witnesses who would testify, defendant's counsel

did not contest the admission of that evidence, noting the defense was "on notice,

certainly, of the Pagans aspect of this, and [that] the court [would] rule as it

[saw] fit on this." Counsel noted only her prior concern that she did not have "a

proffer on what the lay witnesses [were going] to say and the basis of their

knowledge." The judge specifically recognized his in limine ruling was "subject

to any further rulings that the court may make with respect to notice and

availability of witnesses and any [prior] statements they may have made," and

that he would "hear, of course, any timely objections during trial with respect to

the evidence as it comes in."

A-2203-18 13 Returning to the link between the Pagan-related evidence and the indicted

crimes, RICO makes it "unlawful for any person employed by or associated with

any enterprise engaged in or activities of which affect trade or commerce to

conduct or participate, directly or indirectly, in the conduct of the enterprise's

affairs through a pattern of racketeering activity or collection of unlawful debt."

Ball II, 141 N.J. at 171-72 (quoting N.J.S.A. 2C:41-2(c)). Thus, in a RICO

prosecution, the State is required to prove:

(1) the existence of an enterprise; (2) that the enterprise engaged in or its activities affected trade or commerce; (3) that defendant was employed by, or associated with the enterprise; (4) that he or she participated in the conduct of the affairs of the enterprise; and (5) that he or she participated through a pattern of racketeering activity.

[State v. Ball [Ball I], 268 N.J. Super. 72, 99 (App. Div. 1993), aff'd, 141 N.J. 142 (1995).]

To that end, the State must present evidence of the discrete elements of an

"enterprise" and "a pattern of racketeering activity." Ball II, 141 N.J. at 161-62.

"The enterprise is the association, and the pattern of racketeering activity

consists of the predicate incidents. Nevertheless, evidence that serves to

establish such an enterprise need not be distinct or different from the proof that

establishes the pattern of racketeering activity." Id. at 162.

A-2203-18 14 The enterprise must have an "organization," consisting of "those kinds of

interactions that become necessary when a group, to accomplish its goal, divides

among its members the tasks that are necessary to achieve a common purpose."

Ibid. Evidence of a structure within the enterprise "support[s] the inference that

the group engaged in carefully planned and highly coordinated criminal

activity." Ibid. Besides the structure, the evidence must focus on the number

of persons involved, their knowledge of the organization's objectives, the

manner in which they interacted, their individual roles, the level of planning, the

decision-making process, the coordinated implementation of decisions, the

frequency of racketeering activity, and the amount of time between each

incident. Id. at 162-63.

A pattern of racketeering activity has two components: (1) at least two

incidents of racketeering conduct (predicate acts); and (2) the conduct must have

"the same or similar purposes, results, participants or victims or methods of

commission or are otherwise interrelated by distinguishing characteristics and

are not isolated incidents." N.J.S.A. 2C:41-1(d). "[T]he primary criterion of

New Jersey's 'pattern of racketeering activity' is 'relatedness,'" which "calls for

the application of a broad standard involving the totality of all relevant

circumstances" that "may include 'continuity.'" Ball II, 141 N.J. at 169.

A-2203-18 15 In the indictment, the State alleged the enterprise consisted of the named

defendants, Kauffman and other "associates or members named but not

charged," including members of the Pagans. Drinhouser, who defendant had

solicited to kill April, identified defendant as the president of the Pagans at the

time he joined in 2010. Defendant also solicited Seeler, a Pagan, to kill April.

He asked Glick, who had succeeded defendant as president of the Cape May

chapter, if he would ascertain if there was anybody who would be interested in

killing April.

So too, there was testimony from numerous witnesses about defendant's

role in the drug distribution scheme. Seeler testified he, as well as Mulholland,

Pizza, Beverly, and Glick—all of whom were members of or associated with the

Pagans4—had illegally obtained drugs from Kauffman of which defendant

received a share. Defendant solicited Glick to expand the scheme. Seeler

delivered notes between defendant and Kauffman, as did Glick. And Glick,

Beverly, Mulholland, Seeler, and Pizza testified about their participation in the

drug distribution ring and defendant's role.

4 Glick testified Mulholland was a member of the Herd or Shore Dogs, a then Pagans "support group." A-2203-18 16 Glick further testified about his concern that April's murder would be tied

to the Pagans, and that the "mother club" would find out it had not been receiving

its share of "tribute" from the drug distribution operation. Glick also told the

jury that a ranking member of the "mother club" and two "pretty big guys" came

to him because the ranking member was "hearing this stuff that . . . the Pagans

down here, either Atlantic or Cape May or somebody, [was] involved in [April's]

murder." Glick said he had lied when he told the "mother club" Pagans he knew

nothing about it because if he had told the truth, he "probably would have got[ten

his] ass handed to [him], beaten and [his] jacket taken," that is, he would have

lost his membership.

Inasmuch as two of the predicate acts alleged in the indictment were

April's murder and the distribution of drugs, as well as the conspiracy to commit

those crimes, the State properly sought to prove the existence of the enterprise,

as well as its organization and pattern of activities coordinated through

defendant. That evidence was pertinent to the indicted charges, not to other

crimes.

Because federal case law is often useful in perpending our RICO law, Ball

II, 141 N.J. at 156, we find apposite the Second Circuit's opinion in United States

v. Coppola, 671 F.3d 220, 244 (2d Cir. 2012), where the court addressed the

A-2203-18 17 defendant's argument that he received an unfair trial because the government

introduced inadmissible evidence of crimes committed by crime families that

"did not specifically implicate" the defendant. The Second Circuit concluded:

such evidence [was] relevant to prove both the enterprise and pattern elements of the charged racketeering crimes. . . . "[E]vidence of numerous criminal acts by a variety of persons" may be relevant to prove the enterprise and pattern elements of racketeering. Thus, even though a defendant "may reasonably claim no direct participation" in the acts of others, evidence of those acts may be relevant to prove (1) the "existence and nature" of the racketeering enterprise, and (2) a pattern of racketeering activity by the defendant "by providing the requisite relationship and continuity of illegal activities."

[Id. at 244-45 (quoting United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992)).]

We agree with the court of appeals that "[s]uch conduct is not 'other'

crime[s] evidence . . . ; rather, it is evidence of the very racketeering crimes

charged." Id. at 245. Thus, even though the evidence relating to the racketeering

charge included proof of criminal activities that did not always directly involve

defendant, it was admissible as part of the State's efforts to prove the existence

of an enterprise and a pattern of racketeering activity. Ibid.; see also Ball II,

141 N.J. at 175 (holding a defendant can be found to have participated in an

enterprise even if his role "do[es] not exert control or direction over the affairs

A-2203-18 18 of the enterprise, as long as the actor, directly or indirectly, knowingly seeks to

carry out, assist, or further the operations of the enterprise or otherwise seeks to

implement or execute managerial or supervisory decisions").

The trial judge properly admitted evidence of the criminal activity

conducted by members of the Pagans—largely directed by defendant, even after

he was "retired" from the club—as well as evidence of its customs, beliefs and

operations. That evidence was relevant to proving the enterprise, a substantial

part of which was comprised of Pagans and associates, and which, the evidence

shows, was influenced by those customs, beliefs and operations.

It was also relevant to proving that the enterprise was engaged in a pattern

of racketeering activity. N.J.S.A. 2C:41-2(c). As correctly recognized by the

trial judge, it need not have been evaluated as other crimes evidence under

N.J.R.E. 404(b). We discern no abuse of discretion in the judge's admission of

the evidence relevant to the Pagans' existence, organization and pattern of

activity. It not only proved those elements of racketeering; it showed the

pervasive Pagan tenets that undergirded defendant's control over the enterprise

and its members, and his expansion and protection of the drug distribution ring

by force or threat, including murder and conspiracy to commit same.

A-2203-18 19 The evidence involved details of the Pagans' activities that, despite the

trial judge's admonition to refrain from referring to it as an "outlaw" club or by

similar terms, showed the club was just that. When asked what the Pagans was,

Drinhouser explained that it was "a one-percent motorcycle club," and "one-

percent" "was a term that came up . . . years ago [when] someone had said

[ninety-nine] percent of the people that ride motorcycles are law-abiding

citizens and the other one[-]percent aren't." Likewise, Seeler said the term was

derived from "one[-]percenters [who] take the law into their own hands[,]" as

opposed to "[n]inety-nine percent of the population [who] follow[] the rules and

regulations[.]" Glick also made the same reference, specifically referring to the

Pagans as an "outlaw" group. So too, members used that term in their monikers.

We previously recognized that gang membership alone is not evidence of

criminal activity, but "it is at the very least strongly suggestive of such activity." 5

State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010). Thus, where

evidence of gang membership is presented, a limiting instruction is usually

required "because the average juror would likely conclude that a gang member

has engaged in criminal activity. Such evidence has the potential to 'taint' a

5 The defendant in Goodman was not charged with racketeering. A-2203-18 20 defendant in much the same way as evidence of actual criminal conduct." Id. at

228.

The trial judge here was attuned to the potential prejudice engendered by

the State's racketeering proofs and, inviting input from counsel, crafted a

limiting instruction to ameliorate the prejudice and curtail the jury's

consideration of that evidence. Defendant challenges the timing, sufficiency

and completeness of the instruction.

The instruction, presented after opening statements and prior to the

presentation of witness testimony, referenced the State's opening statement that

the jury would hear: "evidence that . . . defendant was or is a member or leader

in an organization referred to as the Pagans Motorcycle Club"; "alleged criminal

activity of the Pagans and those associated with the Pagans"; "the history,

hierarchy, membership and rules of the Pagans"; and the Pagans' involvement in

"drug distribution, racketeering and murder in this case."

The judge instructed the jury it could utilize only what was presented as

evidence; it could not consider any information about the Pagans learned from

any other source. The judge also instructed the jury: "the limited purpose for

the introduction of evidence related to the defendant's alleged affiliation with

the Pagans and the organization and purposes of the Pagans [was] to show the

A-2203-18 21 defendant's involvement with racketeering activity"; "defendant's association

with the Pagans constituted his involvement in an enterprise and a pattern of

racketeering activity"; and "the existence of an enterprise [comprised] of the

defendant and others who are associated . . . with the purpose of carrying out at

least two incidents of racketeering conduct alleged" including "leader of a

narcotics trafficking network, distribution or possession with intent to distribute

controlled dangerous substances, murder and the attempt or conspiracy to

commit these crimes." Whether the evidence proved the existence of the

elements of racketeering beyond a reasonable doubt was left exclusively to the

jury. The judge cautioned that "defendant's mere association with or

membership in the Pagans in itself in no way proves the defendant was involved

in racketeering activity or that the Pagans constituted a criminal enterprise."

The judge also explained the jury had to determine whether "defendant's

conduct, together with the conduct of others in association with the Pagans,

constituted a pattern of racketeering activity[,]" and that "evidence of criminal

activity by persons associated in the Pagans may be relevant to [the jury's]

consideration whether the State has proven the existence of an enterprise and

the pattern of elements of racketeering." The judge explicated that evidence of

activities in which defendant had no direct participation might be relevant to the

A-2203-18 22 jury's "consideration of whether the State has proven the existence and nature of

the racketeering enterprise and the pattern of racketeering activity by . . .

defendant by providing the requisite relationship in continuity of alleged illegal

acts."

The judge repeated those principles and reminded the jury of that

instruction before Glick's cross-examination resumed on the fourth day of his

testimony. Throughout Glick's testimony, evidence, including Glick's recorded

conversations, was introduced showing defendant's alleged involvement in what

defendant contends were other-crime activities. Glick referred to defendant's

activities as "Freddy crime world."

Defendant's counsel first objected after a portion of Glick's conversation

with Drinhouser was played during his first day of testimony, claiming that

unrelated crimes she described as "the job on the Parkway" and "the lumping up

[of] the heating and cooling guy," were being attributed to defendant and should

be considered under N.J.R.E. 404(b). The judge told defendant's counsel he

would: reserve on defendant's objection, stop the recording if he perceived a

need and "certainly hear [from defendant's counsel] outside the presence of the

jury." Glick's lengthy testimony continued for the rest of that day without

further objection. At the end of the day, defendant's counsel briefly said that

A-2203-18 23 they were "going to talk about a potential curative [instruction] with 404(b)

issues."

The next day, before Glick's testimony resumed, the judge reiterated that

he would "consider certain limiting instructions or other remedies [that] may be

suggested by the defense," and proposed the matter be addressed cumulatively,

subject to any specific objection raised by defendant during Glick's continued

testimony. Defendant's counsel responded she had "wrongly assumed that with

[the] trial court order there would be some kind of motion made or there would

be redactions ahead of time[,]" and that she was awaiting a digest so she could

"make specific objections." She continued that "[i]f we're going to handle it

with a curative instruction, and again my objection is it's cumulative, [she

would] make notes in [her] transcripts"; she pointedly "ask[ed] that nothing,

even if it's curative, [the assistant prosecutor] has suggested things be stricken,

. . . [be] stricken from the record." The judge advised that he would continue to

listen to the recordings for objectionable evidence, but determined that "at least

so far what [he] heard[,] with proper instructions[,] could be taken as part of the

overall corrupt enterprise" alleged by the State.

Two days later, before final cross-examination, the judge ruled that,

contrary to defendant's position, the evidence adduced through Glick was related

A-2203-18 24 to the State's racketeering charge and was not subject to analysis under N.J.R.E.

404(b). The judge read his proposed charge to counsel outside the jury's

presence, referring to "certain terms and phrases" the jury had heard during

Glick's testimony and recorded conversations "that reference[d] . . . defendant's

alleged involvement with things like Freddy crime world, the Mafia and certain

dealings among the Pagans and others." Before harkening to his prior charge

about the limited use of that evidence, the judge told the jury the "evidence was

permitted in connection with the State's charges against . . . defendant that his

actions between 2011 and 2017 with the Pagans and others associated with him

and with the Pagans constituted the pattern of illegal activity as charged in the

indictment." Defendant's counsel said she had no objection to the instruction.

When, in response to defendant's counsel's request that the charge be given

immediately and at the end of her cross-examination, the judge said he would

give the charge before Glick resumed the stand and in the final charge,

defendant's counsel responded, "[t]hank you." The instruction was repeated

without objection in the final charge.

Although defendant's failure to object at trial constitutes a waiver of his

right to challenge the instruction on appeal, State v. Afanador, 151 N.J. 41, 54

A-2203-18 25 (1997); R. 1:7-2, we review his challenge to the timing, sufficiency and

completeness of the instruction under the plain error standard, R. 2:10-2.

In considering a jury charge, plain error is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]

We discern no error in the charge that prejudiced defendant. The

instruction informed the jury as to the uses to which the evidence could and

could not be put, limiting any prejudice. Glick was on the stand for five days,

evidenced by approximately 952 pages of transcript. The evidence of criminal

activities by the enterprise was vast. Not only would it be unrealistic to expect

the judge to reference in the instruction each act defendant claims should have

been specified, e.g., the racial epithets used during the lengthy conversations, it

would have also encroached upon the jury's function to determine which

evidence it would accept and what was relevant and material to the elements of

the racketeering charge. Indeed, the jury could have determined some of the

evidence defendant now claims was attributed to his activities did not clearly

implicate defendant, such as the uncharged death of Frank who, evidence

A-2203-18 26 showed, died from an overdose. If highlighted by the trial judge, the jury may

have been swayed to impute that death to defendant.

For the same reasons, it would have been unreasonable for the judge to

repeat the instruction every time defendant claimed Glick provided

"inflammatory testimony." Though we recognize instructions are most effective

if given contemporaneously with the admission of the pertinent evidence, see,

e.g., State v. Fortin, 189 N.J. 579, 601 (2007) (finding that the limiting

instruction regarding other-crime evidence should be given "both at the time the

. . . evidence is presented and in the final jury charge"), the significance of any

delay in giving such instructions depends on the circumstances of the particular

case, see, e.g., State v. Baker, 400 N.J. Super. 28, 46-48 (App. Div. 2008), aff'd

o.b., 198 N.J. 189 (2009) (finding that a one-week delay in giving a limiting

charge on other crimes evidence was not reversible error where the sufficiency

of the final charge was adequate); State v. Hummel, 132 N.J. Super. 412, 424

(App. Div. 1975) (holding that inclusion of the limiting charge in the court's

instructions to the jury at the end of the case is sufficient). The interruptions

that would have been caused if the judge had given the limiting instruction

during Glick's long testimony would have been intrusive. Moreover, defendant's

A-2203-18 27 counsel voiced limited objections to the evidence and deemed the instructions

as given sufficient.

B

Defendant argues the trial judge erred by granting the State's pretrial

motion to admit "all statements made [by coconspirators] in furtherance of the

conspiracies" because he did not consider the specific statements the State

planned to introduce. The judge did not make a blanket ruling. He merely

recognized that under N.J.R.E. 803(b)(5)—the coconspirator exception to the

hearsay rule—coconspirators' statements were generally admissible, but noted

"general admissibility does not necessarily allow the State to bring [in] all such

evidence in . . . the event that an objection is made or in the event that the

testimony does not come in the way it is anticipated." Thus, the judge directed

that "at the time of the testimony," if either party "hear[s] or see[s] something is

different than what they anticipated," they should then "ask either for a sidebar

or adjournment so [they] can discuss the matter with the court and then we'll see

where that may go."

Defendant never lodged such an objection or requested a sidebar related

to that issue. And he does not now specify the coconspirators—many of whom

testified—whose hearsay was admitted, or what was said in those statements; he

A-2203-18 28 generally refers to "[p]artial hearsay statements." His present claims that the

admission of recorded statements was error because they were "not in

furtherance to a conspiracy, but rather in response to an investigation" that took

place years after, and that the statements were inadmissible because the State

presented "[n]o physical or direct evidence," independent of the hearsay, of the

existence of the conspiracy and defendant's relationship to it, are bald

arguments. We cannot properly analyze an argument that is not developed in a

party's merits brief. Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386,

413 n.17 (App. Div. 2011).

To qualify for admission under the coconspirator exception: "(1) the

statement must have been made in furtherance of the conspiracy; (2) the

statement must have been made during the course of the conspiracy; and (3)

there must be 'evidence, independent of the hearsay, of the existence of the

conspiracy and defendant's relationship to it.'" State v. Savage, 172 N.J. 374,

402 (2002) (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)).

Although a statement may be admissible against a party if it is "made at

the time the party-opponent and the declarant were participating in a plan to

commit a crime or civil wrong and the statement was made in furtherance of that

plan," N.J.R.E. 803(b)(5), any scheme to avoid apprehension and prosecution

A-2203-18 29 continues a conspiracy beyond the actual commission of its objective, State v.

Soto, 340 N.J. Super. 47, 65 (App. Div. 2001) (holding a statement made to

evade capture after a crime was completed furthered the conspiracy), overruled

on other grounds, State v. Dalziel, 182 N.J. 494 (2005); State v. Cherry, 289 N.J.

Super. 503, 523 (App. Div. 1995) (holding statements by coconspirator to

establish a plan to prevent detection of himself and, in turn, the defendant

furthered the conspiracy).

Moreover, statements relating to past events may be admissible if they are "in furtherance" of the conspiracy and "serve some current purpose, such as to provide cohesiveness, provide reassurances to a [coconspirator], or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy."

[Savage, 172 N.J. at 403 (quoting Taccetta, 301 N.J. Super. at 253).]

We do not discern any abuse of discretion in the trial judge's ruling that

there appears to be sufficient evidence of the conspiracy and . . . defendant's relationship to it independent of the hearsay; for example, the records of pharmacy transactions related to the distribution of [drugs] are independent of the coconspirator hearsay. Further, there is evidence in connection with the overarching drug ring so-called and . . . defendant's involvement in it giving rise to independent and corroborative evidence related to the homicide of April . . . and evidence of . . . defendant's own admitted

A-2203-18 30 contact and involvement in the alleged plan to kill . . . Kauffman related to that conspiracy charge.

The recorded statements were proof of defendant's involvement in the

drug distribution ring, April's murder and defendant's plan to murder Kauffman.

They evidenced defendant's desire to cover-up past events and avoid detection

by law enforcement. Moreover, contrary to defendant's argument, there was

evidence—independent of the wiretap statements—of the conspiracies and

defendant's relationship to them. Glick, Beverly, Mulholland, Seeler, Chapman,

and Pizza testified about their participation in the drug distribution ring and

defendant's role in it. Glick, Mulholland, Seeler, and Drinhouser testified about

how defendant solicited them to murder April; Mulholland further testified

about how he was involved in the murder and how he was directed by defendant

to carry out the crime. Glick and Scoppa testified about defendant's plan to

murder Kauffman. As the judge noted, there was also evidence of pharmacy

transactions related to the distribution of drugs, and phone records which

showed an increase in communications between defendant and Kauffman in the

days leading up to April's murder. On this record, we see no error, let alone

plain error, in the court's decision to admit the wiretap statements, or more

generally, the coconspirator statements, especially where defendant posed no

objection to any specific statement. See Afanador, 151 N.J. at 54.

A-2203-18 31 C

Defendant maintains the trial judge erred by granting the State's pretrial

motion to admit April's statements to show defendant's motive, which the judge

described as "derivative of . . . Kauffman's alleged motive to kill his wife to

prevent a costly divorce or to preclude the inopportune disclosure of personal

and potentially criminal information."

The judge heard testimony from Pack and Scoppa during a pretrial

hearing. Pack testified: Kauffman told her April wanted a divorce; she heard

April tell Kauffman that she hated him after accusing him of filling prescriptions

in her name for antipsychotic medication; April told her, in a conversation that

was overheard by Kauffman, she was unhappy, hated Kauffman and wanted a

divorce. Pack also testified that a "famous quote" of Kauffman was that he was

going to kill April before she took half of his empire.

Scoppa testified that, in statements he took from Glick, Drinhouser and

Mulholland, they said Kauffman wanted to kill April because "she was going to

divorce him and take half of his money, . . . she was cheating on him, and . . .

Kauffman was scared that she was going to out him and his illegal activities that

he was doing with the Pagan guys." On cross-examination he verified that Glick

"gave [him] information supposedly about [defendant's] motivation or . . .

A-2203-18 32 Kauffman's motivation and [Glick] got . . . Kauffman's motivation supposedly

from [defendant] and then that went to . . . Glick." Scoppa also testified

Drinhouser said defendant had pointed out Kauffman's house and then had told

Drinhouser he had a job for him because Kauffman wanted his wife killed and

would pay him $10,000 in cash.

From that proffer the judge concluded "defendant's motive, if any, in the

murder of April . . . [was] derivative of . . . Kauffman's alleged motive to kill

his wife to prevent a costly divorce or to preclude the inopportune disclosure of

personal and potentially criminal information." From Pack's testimony the judge

concluded Kauffman had known April wanted a divorce and had said he would

kill her before she took "half of his empire." The judge recognized our Supreme

Court's observation that "[i]t takes no great leap of intuition to understand that

divorce could motivate a person to kill[,]" State v. Calleia, 206 N.J. 274, 301

(2011), in finding April's wish for a divorce and Kauffman's reaction had

evidenced his motive to kill April. The judge then credited Scoppa's testimony

and found his interviews with Glick, Drinhouser and Mulholland had revealed

they had been "in possession of information or knowledge of interactions with

. . . defendant and his knowledge of . . . Kauffman's desires to carry out a

homicide against April." The judge concluded the State had established the

A-2203-18 33 admissibility of April's hearsay under N.J.R.E. 803(c)(3). We note that prior to

the judge's ruling, defendant's counsel told the judge, in light of Scoppa's

proffer, she could "see how the ruling [would] come down and [she would] make

arguments regarding weight before the jury."

N.J.R.E. 803(c)(3) allows admission of "[a] statement made in good faith

of the declarant's then-existing state of mind, emotion, sensation or physical

condition (such as intent, plan, motive, design, mental feeling, pain, or bodily

health), but not including a statement of memory or belief to prove the fact

remembered or believed[.]" In Calleia, the Court considered the admissibility

of evidence, under N.J.R.E. 803(c)(3), from the deceased victim's friends "who

uniformly revealed that [the victim] was unhappy with her marriage, was

contemplating divorce, and described steps she had taken in furtherance of

obtaining a divorce from defendant" to prove motive. 206 N.J. at 284-85.

The Calleia Court announced a revised view of such evidence, recognizing

"the special role of motive evidence and its unique capacity to provide a jury

with an overarching narrative, permitting inferences for why a defendant might

have engaged in the alleged criminal conduct." Id. at 293. Because "motive

must [often] be pieced together; potential motivating factors must be gleaned

from evidence that does not itself bespeak criminal intent but merely explains

A-2203-18 34 what events might have led the accused to commit a criminal act," "motive is

treated somewhat differently than other types of evidence," and "a 'wider range

of evidence' is permitted to prove motive, so long as it remains a material issue

in a case." Id. at 293-94 (quoting State v. Covell, 157 N.J. 554, 565 (1999)).

"'Any evidence which has a legitimate bearing on the question of motive is as a

general rule admissible' so long as it 'at least to a slight degree tend[s] to

establish the existence of the motive relied on.'" Id. at 293 (alteration in

original) (quoting 41 C.J.S. Homicide § 325 (2006)). "Time and again, courts

have admitted motive evidence even when it did no more than raise an inference

of why a defendant may have engaged in criminal conduct, and even in the face

of a certain degree of potential prejudice stemming from the evidence." Id. at

294. When evidence provides proof of motive, "a strong showing of prejudice

is necessary to exclude" such evidence under the balancing test of N.J.R.E. 403.

Ibid.

The Court, nevertheless, emphasized

a fact can only be probative on the question of motive if a defendant is aware of that fact. Thus, in order to be admissible as motive evidence, the State must directly or circumstantially show that the accused probably knew of the facts that are alleged to have given rise to the motive.

[Id. at 296.]

A-2203-18 35 The Court repeated that admonition three times, concluding: "There can be no

misunderstanding: a prosecutor must demonstrate that a defendant knew or

likely knew of a victim's conduct in order for the victim's conduct to provide

motive evidence." Id. at 297.

The State's proffer demonstrated Kauffman's motive to have April killed.

Pack's testimony about Kauffman's "famous quote" about killing April to

prevent her from taking his assets, and Scoppa's proffer that Glick, Drinhouser

and Mulholland said Kauffman wanted to kill April because "she was going to

divorce him and take half of his money, . . . she was cheating on him, and . . .

Kauffman was scared that she was going to out him and his illegal activities that

he was doing with the Pagan guys[,]" was sufficient evidence to permit April's

hearsay statements under N.J.R.E. 803(c)(3) if offered against Kauffman.

Defendant presently argues the State failed to establish defendant had

known of Kauffman's motive. Although the trial judge should have relied upon

more compelling evidence than that offered by Scoppa's account of his

interviews with Glick, Drinhouser and Mulholland, Glick, himself, testified

defendant had told him, in Mulholland's presence, that Kauffman "was looking

for someone to kill his wife because she was . . . going to divorce him, was

cheating on him, and he wasn't going to give her half of his wealth which was

A-2203-18 36 almost five million." In the fall of 2011, defendant proposed to Mulholland that

he kill April. Mulholland testified defendant had told him Kauffman wanted

April killed because she was spending about $100,000 per month "and she knew

. . . what he was doing and she was going to blow the drug ring up." Considering

that evidence of defendant's knowledge of Kauffman's motives, the judge did

not abuse his discretion by admitting April's statements. Although defendant's

knowledge of all of Kauffman's motives was not shown by the evidence ,

defendant does not contend he was painted with a brush any broader than that

relating to the motives of which he had knowledge.

We determine defendant's argument that April's statements should have

been analyzed for admissibility under N.J.R.E. 803(b)(5) instead of N.J.R.E.

803(c)(3) to be without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

April was not a coconspirator.

D

In his last evidential argument, defendant argues the trial judge abused his

discretion by granting the State's pretrial motion to admit hearsay: the Jacobs

Letter. During a pretrial hearing, the judge heard testimony from Jacobs who

said he had authored the March 20, 2017 letter, and from Scoppa who said he

A-2203-18 37 had provided the letter to Glick on November 11, 20176 because Scoppa believed

if Glick presented the letter to defendant, it "would strike up conversation" about

April's murder. According to the judge's instruction to the jury, the Jacobs Letter

was written in response to an October 4, 2012 inquiry from the ACPO asking if

Kauffman "knew of any person who would have wanted to harm April," who

was killed on May 10, 2012.7 Jacobs responded that the names of Frank and

defendant had been brought to his attention.

The judge ruled the letter could be considered as evidence of defendant's

motive to conspire to murder Kauffman, subject to a jury instruction limiting

the use of that evidence to that purpose. The State presented a recorded

conversation between Glick and defendant, during which Glick showed

defendant the letter. Defendant responded by saying: "Here's what I think.

When I saw that paper . . . [w]ith my name on it . . . [t]hat guy is giving me up

. . . as the suspect to a murder"; and that "this guy"—who the State contended

was Kauffman—could tell the authorities that he paid defendant to arrange

6 During the Rule 104 hearing Scoppa also testified he had given the letter to Glick on November 13, 2018, but during cross-examination stated the year was 2017. We note Glick agreed to cooperate in 2017, and the trial commenced in Fall 2018. 7 Neither the Jacobs Letter nor the October 4, 2012 letter of inquiry was provided in defendant's appendix; the State did not submit an appendix. A-2203-18 38 April's murder. Defendant continued that the person to whom Beverly passed

notes—which evidence shows was Kauffman—would "fucking rat in a minute"

and disclose "every detail" including notes from defendant to Kauffman.

Defendant told Glick: "He's already given my name to the fucking Prosecutor's

[O]ffice as a suspect in a murder." The State argued that the recorded

conversation showed defendant wanted Kauffman dead.

The judge cautioned the jury the letter was "not proof that [defendant]

committed the offenses charged against him or that . . . Kauffman or any other

person identified him in connection with the death of April[.]" The judge

instructed that the only purpose for which the letter "and the testimony of the

several witnesses concerning th[e] exhibit" could be considered was to prove

defendant's motive, leaving to them the decision if it did.

The letter was not, as defendant now contends, hearsay. As the judge

explained, it was not offered for proof of what was stated therein. See N.J.R.E.

801(c)(2). "[I]f evidence is not offered for the truth of the matter asserted, the

evidence is not hearsay and no exception to the hearsay rule is necessary to

introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002).

Moreover, in light of the evidence supporting the letter's relevance to the State's

contention that it prompted defendant's statement to Glick that Kauffman should

A-2203-18 39 be killed to prevent him from implicating defendant, the judge did not abuse his

discretion in admitting it. Indeed, Mulholland testified defendant had shown

him the Jacobs Letter while pointing a gun at him, had told Mulholland that the

letter was from Mulholland's one-time lawyer's firm; and had said he was being

set up and was afraid Kauffman would cooperate with law enforcement

authorities.

III

Defendant argues he "was compromised and denied due process" when

the State failed to provide its experts' reports, and the court failed to exclude the

experts' testimony "despite the requirements of the Court Rules and

[d]efendant's clear application to bar the[ir] testimony."

Defendant's counsel protested pretrial about the "problem" she had

because she did not "know the names" of a computer-crimes detective and a

forensic detective who the State was going to call and she had "not been

provided any expert reports in that regard" although their titles "appear[ed] to

refer to expert witness testimony." After counsel made an application to bar

experts whose reports she had not received, the trial judge instructed counsel to

confer, exchange any additional information, if needed, and to contact him in

A-2203-18 40 writing if they could not resolve the issue on their own. The record does not

show this issue came before the court again.

The State called two expert witnesses during trial: Federal Bureau of

Investigation Special Agent John Hauger, an expert in historical cell-site

analysis and Doctor Gary Collins, a medical examiner, who was called to testify

about the autopsy that was performed on April's body.8

Prior to Hauger's testimony, defendant's counsel raised an objection, not

to the State's failure to supply his report, but to "information being incorporated

into the expert report." Contrary to defendant's present argument, defendant's

counsel was obviously in possession of Hauger's report and voiced no objection

that she could not proceed because it had not been provided or not timely

provided.

Nor did defendant raise any objection because the defense was not

provided with an expert report before the doctor testified to the straightforward

cause of death: a gunshot wound to April's chest that caused "heavy internal

8 Ian Finnimore, a forensic crime-scene detective, testified as a fact witness, though defendant's counsel elicited that he had previously given expert opinions. The State did not present the testimony of a computer-crimes expert.

A-2203-18 41 bleeding" or "hemorrhagic shock[.]" In summation, defendant's counsel told the

jury April "died from gunshot wounds inflicted on her body in her own home."

There is no merit to defendant's argument.

IV

Defendant argues the trial judge erred by denying his pretrial request for

discovery pertaining to Glick's arrest on unrelated drug charges and his

agreement to cooperate with the State.

Although the assistant prosecutor represented there was no formal or

informal agreement between the ACPO and Glick other than "the plea which is

[a] public record," the judge ordered the State to provide defendant with an

explanation of payments made to Glick by the ACPO and FBI and any

documentation related thereto. The judge ruled "Glick's cooperation and

involvement . . . has to be made known," and told defendant's counsel she could

"examine any witness on agreements, if any[.]"

As to defendant's petition for discovery linked to Glick's unrelated arrest,

reportedly made after a search warrant was executed, the judge denied that

request because Glick's

criminal exposure is still a matter of State's investigation and does not need to be made known. Confidential informants that are involved that you don't plan on calling as witnesses in this case don't need to

A-2203-18 42 be made known. On the theory that Mr. Glick may spit the bit and may decide not to cooperate and then you go back to start, so the court is not in a position to jeopardize the State's investigation in an unrelated criminal activity alleged against Mr. Glick.

The judge clarified, in response to defendant's counsel's inquiry, that he was "not

requiring the State to produce [discovery in Glick's unrelated case] absent

information about his cooperation in this case." The judge did, however, tell

defendant's counsel she could "ask [Glick] whatever you want to ask him when

he's on the stand." Counsel did cross-examine Glick about his arrest on separate

drug charges; his expectations about the outcome on those charges; the existence

of any cooperation agreements; payments to him by the ACPO and FBI; his

cooperation and its impact on his separate charges, including their

administrative dismissal; uncharged acts; and on the crimes charged in this

matter.

"We accord substantial deference to a trial court's issuance of a discovery

order and will not interfere with such an order absent an abuse of discretion."

State v. Hernandez, 225 N.J. 451, 461 (2016); see also State ex rel. A.B., 219

N.J. 542, 554 (2014). Accordingly, we "defer to a trial court's resolution of a

discovery matter, provided its determination is not so wide of the mark or is not

'based on a mistaken understanding of the applicable law.'" A.B., 219 N.J. at

A-2203-18 43 554 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

(2011)). We do not perceive that to be the case here.

The judge's decision heeded the tenets that defendants are entitled to

discover a witness's plea and cooperation agreement and cross-examine a

witness on his "expectation of favorable treatment for his cooperation and argue

that he has sold his services and testimony to the State"; and to information

concerning any violation of the cooperation agreements, including disclosure of

material false statements made by the witness and known to the State.

Hernandez, 225 N.J. at 464-65. The judge also recognized the limits the Court

placed on discovery of unrelated cases:

Although our discovery rule generally requires that the State provide all evidence relevant to the defense of criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence. The only information discoverable in the unrelated cases that is relevant to the defense at this point are the cooperation agreements between the State and the Witness and any violations of the agreements, such as material false statements made by the Witness and known to the State. The discovery order here requires disclosure of information not mandated by our discovery rule—information that has no ostensible relevance to the case to be tried.

[Id. at 453-54.]

A-2203-18 44 In Hernandez, the State's case relied "on a cooperating witness who ha[d]

given assistance to law enforcement in a number of criminal investigations." Id.

at 464. The State provided the defendants with "the [w]itness's name, his

statements to law enforcement authorities, his criminal history, his plea and

cooperation agreements, audio recordings of the alleged drug transactions, the

report of the forensic analysis of the cocaine allegedly sold by defendants, and

investigative reports concerning the alleged offenses committed by defendants."

Ibid. The defendants wanted what the Court described as "open-file discovery

of unrelated cases because the present case and the unrelated cases share a

common thread—the same cooperating witness." Ibid.

The Court observed that rewards offered by the government to a

cooperating witness had the "capacity to induce false testimony[,]" necessitating

the State's "complete disclosure of the [witness's] cooperation and plea

agreements[,]" and "[t]hrough defendant['s] cross-examination and summation,

the jury [would] know" the witness had reason to seek the State's favor. Id. at

468. So too, the Court required the State to disclose material false statements it

knew the witness had made in the unrelated investigation. Ibid. But the Court

ruled the defendants' discovery request in connection with the unrelated cases

did not "fall within the ambit" of the criminal discovery rule reasoning unless

A-2203-18 45 the defendants could "signify with some specificity the relevance of the

requested documents—as opposed to speculative relevance"—discovery would

not be ordered "at least until defendants can make some concrete showing of

need." Ibid.

Through that lens, we determine the judge did not abuse his discretion by

denying defendant's discovery request. The judge carefully considered and

balanced the State's ongoing investigation in the unrelated matter, the

informants' involvement and defendant's unstated need for discovery in that

case.

V

Defendant urges us to reverse because the "State irreparably prejudiced

jurors against [him] by [its] inflammatory commentary and improper inferences"

in its opening and closing statements. Defendant did not object to any of the

assistant prosecutor's remarks.

We reject defendant's contention that the trial judge prohibited objections

from defendant's counsel to the State's opening and closing remarks. Defendant

misstates the record. The judge merely stated his "usual rule and preference"

was to have counsel "reserve any objections during . . . openings or closings."

The judge explained any such refrainment was "without prejudice," and invited

A-2203-18 46 counsel to bring to his attention "anything objectionable . . . at the end of the

[the adversary's] statement[,]" and he would then take "any corrective action

necessary[.]"

"Generally, if no objection was made to the improper remarks, [they] will

not be deemed prejudicial. Failure to make a timely objection indicates that

defense counsel did not believe the remarks were prejudicial" when made, and

"also deprives the court of the opportunity to take curative action." State v.

Timmendequas, 161 N.J. 515, 576 (1999). To justify a reversal and a new trial,

"the prosecutor's conduct must have been 'clearly and unmistakably improper,'

and must have substantially prejudiced defendant's fundamental right to have a

jury fairly evaluate the merits of his defense." Id. at 575 (quoting State v.

Hightower, 120 N.J. 378, 411 (1990)); see also State v. Wakefield, 190 N.J. 397,

438 (2007); R. 2:10-2 ("Any error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have been clearly capable of

producing an unjust result, but the appellate court may . . . notice plain error not

brought to [its] attention."). We are satisfied that none of the comments

challenged on appeal constitutes plain error. R. 2:10-2.

Defendant argues it was improper for the assistant prosecutor to: suggest

that Glick had taken a risk by assisting law enforcement; suggest that defendant

A-2203-18 47 had connections to the Mafia or the Mexican Cartel; and "unduly impress the

jury by touting the credentials of his office and the case" by saying that this case

was the Atlantic County Prosecutor's "top priority." We disagree. These

assertions permissibly "provide[d] an outline or roadmap of the State's case" and

were "limited to a general recital of what the State expect[ed], in good faith, to

prove by competent evidence." State v. Walden, 370 N.J. Super. 549, 558 (App.

Div. 2004); see also State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014).

Glick testified he feared for his safety because he cooperated with law

enforcement; so too, Mulholland testified that defendant had threatened to kill

him if he ever implicated defendant in April's murder. Mulholland further

testified that defendant had pointed a gun to his head when defendant confronted

him with the Jacobs Letter and that "[defendant] didn't trust [him]" and "always

threatened to kill" him.

Glick and Scoppa testified regarding defendant's connections to organized

crime. Scoppa specifically recounted how he had followed defendant to the

Borgata Casino where he had observed defendant having a meeting with

members of the Mafia. Mulholland testified that defendant had "told [him] he

had spoken to . . . Glick" and "that some cartel was going to take care of the

A-2203-18 48 doctor," and that defendant had wanted Mulholland to call his "Mafia friends"

to deal with Kauffman.

The assistant prosecutor's passing comment regarding the Prosecutor's

prioritization of defendant's case related to a recorded conversation during

which Glick explained to defendant there was renewed interest in April's death,

five years after the letter that prompted the Jacobs Letter had been written,

"because of the new prosecutor."

Nor do we see any merit in defendant's argument that it was improper for

the prosecutor to infer defendant was responsible for Frank's death, highlighting

as particularly egregious the prosecutor's repeated use of the phrase: "[t]hree

people can keep a secret if two are dead." The remark referred to the State's

theory that "in [defendant's] mind, there[] [were] only three people on earth that

can get tied to that murder": Frank, Kauffman and defendant; and since Frank

and Kauffman were dead, defendant may have thought his secret was safe. The

assistant prosecutor later clarified the State's position: "Maybe three people can

keep a secret if two are dead, but this defendant could not keep his mouth shut,

and so it's not just three people. It's many, many more . . . people who you're

going to hear from."

A-2203-18 49 Trial evidence showed that defendant was worried Frank would expose

him; and when Mulholland told him of Frank's death, he "just smirked."

Contrary to defendant's skewed argument, the assistant prosecutor never

suggested defendant was responsible for Frank's death. The overwhelming

evidence was that Frank died from an overdose, as defendant's counsel noted in

summation, "face down in his own vomit on the carpet in the living room of the

. . . house his father had owned[.]" And it is undisputed Kauffman committed

suicide in the jail.

The assistant prosecutor did violate the trial judge's order to refrain from

referring to the Pagans as an "outlaw" motorcycle club when he said defendant

"was the president of what is known as the Pagan Outlaw Motorcycle Club."

There was ample evidence of illegal activities conducted by members of the

Pagans. We note defendant's counsel twice referred to the club as "the Pagan

[O]utlaw [M]otorcycle [C]lub" in summation. The trial judge's limiting

instruction guided the jury's use of evidence of defendant's association with the

Pagans. The jury is presumed to have followed that instruction. State v. Burns,

192 N.J. 312, 335 (2007). Improper remarks made by the prosecutor must be

considered in the context of the opening as a whole and will not be grounds for

reversal, particularly if unobjected to, as long as they did not deprive defendant

A-2203-18 50 of a fair trial. State v. Roman, 382 N.J. Super. 44, 57-58, 61 (App. Div. 2005).

The assistant prosecutor's single, fleeting comment does not warrant reversal.

Defendant's argument that, in his closing statement, the assistant

prosecutor prejudiced defendant when he improperly "made [it] a point to

denigrate the defense and cast suspicion onto the [d]efense [t]eam's integrity and

motivation"; "call[ed] defendant a monster"; and told the jury "[j]ustice

demand[s] he's guilty," is without sufficient merit to warrant discussion in this

opinion, R. 2:11-3(e)(2), save for some brief explanation.

The summation, in context, while at times melodramatic, presented the

State's case graphically and "forceful[ly]," State v. Bradshaw, 195 N.J. 493, 510

(2008), within the confines of the evidence. The assistant prosecutor's closing

remarks responded to the defense summation during which counsel attempted to

eviscerate the State's multiple witnesses' testimony relating to the establishment

of the enterprise by calling Glick a "con man"; Seeler a "Nazi sympathizer";

Mulholland "a cold-hearted man who . . . sold drugs in concert with Glick" and

had retained the law firm, whose partner—who she described as "a mob lawyer

representing a snitch"—authored the Jacobs Letter, represent him in connection

with separate crimes that resulted in "no conviction, apart from this while the

whole scheme was playing out"; Pizza a woman "entirely under the control of

A-2203-18 51 her husband . . . Seeler"; Chapman a woman "unable to remember anything of

the time period without her memory being refreshed"; and Beverly a woman

who "sold her pills to [defendant]." Throughout summation, the defense

attacked the State's witnesses' credibility, interests and motives, and highlighted

their illegal activities.

The assistant prosecutor did not denigrate the defense, only its theories.

He did not cast ad hominem aspersions; he responded to the defense's attack on

the State's witnesses. "It is not improper for the prosecution to suggest that the

defense's presentation was imbalanced and incomplete." Timmendequas, 161

N.J. at 593; see also State v. Patterson, 435 N.J. Super. 498, 508 (App. Div.

2014). Nor did the assistant prosecutor call defendant "a monster." And

considering the assistant prosecutor's complete statement: "Ladies and

gentleman, I ask you to find this man guilty, but not because I say he's guilty,

but because the evidence proves his guilt, because justice demand[s] he's guilty,"

not just the distorted portion argued by defendant, we perceive no impropriety.

The assistant prosecutor's opening and closing—that brought no objection

from defendant—were not "so egregious as to deprive defendant of a fair trial."

State v. Papasavvas, 163 N.J. 565, 615 (2000); see also Wakefield, 190 N.J. at

437. "Prosecutorial comments are deemed to have violated the defendant's right

A-2203-18 52 to a fair trial when they 'so infect[] the trial with unfairness as to make the

resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394,

409 (2012) (alteration in original) (quoting State v. Koedatich, 112 N.J. 225,

338 (1988)). The trial record shows such was not the case.

VI

Defendant's argument that the trial judge erred by allowing "the State to

include an amended charge of vicarious accomplice liability" "and changed the

scope of the [r]acketeering charge" after the trial evidence had been presented

is also meritless. Despite the State's request during the charge conference that

the judge tailor that portion of the racketeering model jury charge instructing on

the fifth element of N.J.S.A. 2C:41-2(c), as charged in the indictment's first

count, the judge delivered the model charge largely verbatim. "When a jury

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

persuasive argument in favor of the charge as delivered.'" State v. Whitaker,

402 N.J. Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J.

Super. 79, 84 (App. Div. 2000)). The judge delineated the incidents of

racketeering alleged by the State—those set forth in counts two through six of

the indictment. The instruction did not veer from the original racketeering

charge set forth in the indictment.

A-2203-18 53 Conflating the racketeering count with the murder count, defendant argues

"[t]he State further manipulated the charge." He argues the State, despite its

contention that Frank killed April, requested during the charge conference that

the jury be instructed that it alleged April's murder was committed by "another"

instead of specifying Frank. The State reasoned the jury could find someone

other than Frank committed the murder, but defendant would still be guilty of

conspiracy to commit murder if he conspired with that other person.

Although the trial judge's final charge on conspiracy-vicarious liability

and conspiracy to commit murder included that April's murder "was committed

by Francis Mulholland or by others acting in the conspiracy to murder April

Kauffman," he explained

defendant is legally accountable as an accomplice acting in conspiracy with Francis Mulholland or with others [acting] in the conspiracy for the crime of murder committed by Francis Mulholland or with others in the conspiracy because the defendant and Francis Mulholland or the others in the conspiracy allegedly conspired together to commit the crime. Specifically, the State alleges that Francis Mulholland, Joseph Mulholland and James Kauffman conspired among themselves or with defendant to murder April Kauffman.

He continued: "The State alleges that defendant is legally responsible for the

criminal conduct of Francis Mulholland" under the conspiracy statute.

A-2203-18 54 The judge did not adopt the State's suggestion. Although the judge added

"others" when he referenced Frank throughout the murder charge, the evidence

showed those "others" also played a role in the conspiracy to commit April's

murder. This was not an alternative theory to that originally charged in the

indictment and advanced during the trial. As the trial judge observed, the proofs

before the jury were that "Mulholland facilitated the delivery of [Frank] to the

scene of the crime and that [Frank], based on some of the other testimony, was

the guy who [shot April], and that . . . defendant's role, if these witnesses are to

be believed, was the person who orchestrated it[.]" Kauffman, it was alleged,

paid for the murder.

Neither the State nor defendant's counsel voiced any objection to the

judge's final charge when the trial resumed four days after the charge

conference, just prior to closing statements and the final instructions to the jury ;

counsel had received the final charge the day before. Nor did counsel object at

the conclusion of the charge.

Absent objection, we review the instruction for plain error and only

reverse if that error was "clearly capable of producing an unjust result." State

v. McKinney, 223 N.J. 475, 494 (2015) (quoting R. 2:10-2). An unjust result

arises when the error "raise[s] a reasonable doubt as to whether the error led the

A-2203-18 55 jury to a result it otherwise might not have reached." State v. Macon, 57 N.J.

325, 336 (1971); see also State v. Taffaro, 195 N.J. 442, 454 (2008). Failure to

object creates a "presum[ption] that the instructions were adequate." State v.

Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003).

In our judgment the jury instruction laid a clear path for the jury,

adequately explaining the applicable law.

VII

To the extent not here addressed, we determine defendant's remaining

arguments, including that "the cumulative errors committed by the trial [judge]

denied . . . defendant of a fair trial and resulted in a manifest injustice," to be

without sufficient merit to warrant any discussion. R. 2:11-3(e)(2).

Affirmed.

A-2203-18 56