STATE OF NEW JERSEY VS. DERRICK M. MILLER STATE OF NEW JERSEY VS. ARTHUR L. THOMPSON (11-08-1559, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-4022-12T1
A-4055-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK M. MILLER,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

ARTHUR L. THOMPSON, a/k/a NASHEED,

Defendant-Appellant.

______________________________

Submitted May 11, 2016 – Decided May 10, 2017

Before Judges Koblitz, Kennedy, and Gilson.
 On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 11-
08-1559.

Joseph E. Krakora, Public Defender, attorney
for appellants (Susan Remis Silver, Assistant
Deputy Public Defender, of counsel and on the
briefs for appellant Derrick Miller; Jack L.
Weinberg, Designated Counsel, on the briefs
for defendant Arthur Thompson).

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent
(Maria I. Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the briefs).

Appellant Arthur Thompson filed a pro se
supplemental brief.

Appellant Derrick Miller filed a pro se
supplemental brief.

PER CURIAM

Co-defendants Derrick Miller and Arthur Thompson appeal their

convictions and sentences. Defendants were charged with first-

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

conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

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

3(a)(3); first-degree attempted murder, N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2(b)(1); second-

degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A.

2 A-4022-12T1
2C:18-2(b)(1); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(f); and second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree

aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4).

Thompson was also charged with one count of second-degree

possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b).

The court dismissed the charges of conspiracy to commit murder and

conspiracy to commit burglary. The jury found defendants guilty

on all counts, except for the charges against Thompson for

attempted murder and aggravated assault.

The court sentenced defendants to life imprisonment on the

murder convictions, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. Also, the court merged some of the remaining

charges into the murder convictions and, on others, imposed

sentences that run concurrent to the life sentence. Defendants

appealed their convictions and raise fifteen separate issues.

Miller raises the following arguments:

POINT I
THE TRIAL COURT ERRED IN NOT SUPPRESSING THE
IDENTIFICATION OF DEREK [sic] MILLER BECAUSE
THE STATE FAILED TO RECORD THE COMMUNICATIONS
BETWEEN THE POLICE AND THE WITNESS AS REQUIRED
BY STATE V. DELGADO.

POINT II
THE TRIAL COURT IMPROPERLY DENIED SUPPRESSION
OF THE OUT-OF-COURT IDENTIFICATION WHICH
RESULTED FROM AN UNDULY SUGGESTIVE AND

3 A-4022-12T1
 UNRELIABLE SHOW[-]UP PROCEDURE AND WHICH
VIOLATED THE DEFENDANT'S [FOURTEENTH]
AMENDMENT RIGHTS.

POINT III
THE TRIAL COURT ERRED IN NOT STRIKING EXPERT
TESTIMONY BASED ON HYPOTHETICAL FACTS NOT
ADDUCED AT TRIAL AND NOT OFFERED WITH A
REASONABLE DEGREE OF CERTAINTY.

POINT IV
THE TRIAL COURT IMPROPERLY DENIED THE MOTION
FOR A MISTRIAL BECAUSE THE PROSECUTOR'S
SUMMATION CONTAINED FACTS UNSUPPORTED BY THE
EVIDENCE WHICH PREJUDICED THE DEFENDANT'S
RIGHT TO A FAIR TRIAL. (Partially raised)

POINT V
DEFENDANT'S CONVICTION MUST BE OVERTURNED
BECAUSE THE INDICTMENT CHARGED HIM WITH ACTING
WITH ONE PERSON, BUT FOR THE FIRST TIME IN
SUMMATION, THE PROSECUTION ARGUED THAT
DEFENDANT COMMITTED THE CRIME WITH OTHER
PARTIES, GIVING DEFENDANT NO OPPORTUNITY TO
DEFEND.

POINT VI
AFTER THE JUDGE RECEIVED INFORMATION THAT
EXTRANEOUS INFLUENCES MAY HAVE INTERFERED WITH
THE JURY'S ABILITY TO REACH AN IMPARTIAL AND
FAIR VERDICT, THE TRIAL JUDGE ERRED IN DENYING
DEFENDANTS' MOTION FOR A MISTRIAL AND ERRED
IN DENYING DEFENDANTS' MOTION, IN THE
ALTERNATIVE, THAT ALL JURORS BE POLLED.

POINT VII
THE TRIAL COURT IMPOSED AN EXCESSIVE LIFE
SENTENCE WITHOUT PROPERLY WEIGHING THE
AGGRAVATING AND MITIGATING FACTORS.

In his pro se brief, Miller raises the following additional

points.

4 A-4022-12T1
 POINT I
THE TRIAL JUDGE INCORRECTLY INSTRUCTED THE
JURY ON THE STATE['S] BURDEN OF PROOF ON
ATTEMPTED MURDER, POINTING A FIREARM, AND
BURGLARY. (NOT RAISED BELOW)

POINT II
THE TRIAL JUDGE ERRED IN FAIL[ING] TO CHARGE[]
AGGRAVATED MANSLAUGHTER AS A LESSER-INCLUDED
CHARGE. (NOT RAISED BELOW)

POINT III
THE CUMULATIVE ERRORS COMMITTED IN THE
DEFENDANT'S TRIAL VIOLATED HIS [FOURTEENTH]
AMENDMENT RIGHT TO DUE PROCESS AND A FAIR AND
IMPARTIAL TRIAL.

Thompson raises the following arguments:

POINT I
THE COURT DEPRIVED THE DEFENDANT OF HIS STATE
CONSTITUTIONAL RIGHTS WHEN IT REFUSED TO
SUPPRESS THE IDENTIFICATION OF CO-DEFENDANT
MILLER DUE TO THE STATE'S FAILURE TO COMPLY
WITH THE DOCUMENTATION REQUIREMENTS PURSUANT
TO STATE V. DELGADO [].

POINT II
THE MOTION COURT ERRED WHEN IT DENIED THE WADE
HEARING. THE OUT-OF-COURT IDENTIFICATION
PROCEDURES WERE UNDULY SUGGESTIVE AND
UNRELIABLE IN VIOLATION OF THE DEFENDANT'S
FOURTEENTH AMENDMENT DUE PROCESS RIGHTS.

POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENDANT'S MOTION FOR SEVERANCE.

POINT IV
THE STATE DEPRIVED THE DEFENDANT DUE PROCESS
OF LAW AND A FAIR TRIAL WHEN IT CHANGED ITS
THEORY OF THE CASE IN SUMMATION. THE
PROSECUTOR'S ACTIONS CONSTITUTED
PROSECUTORIAL MISCONDUCT. FUNDAMENTAL
FAIRNESS DEMANDS THAT THIS COURT REVERSE THE

5 A-4022-12T1
DEFENDANT'S CONVICTIONS AND REMAND FOR A NEW
TRIAL.

POINT V
THE STATE'S MISUSE OF THE EXPERT TESTIMONY
THROUGHOUT THE TRIAL CONSTITUTED
PROSECUTORIAL MISCONDUCT DEPRIVING THE
DEFENDANT OF A FAIR TRIAL. (Partially Raised
Below)

A – The Gunshot Residue Expert

B – The Soil Expert

C – Use of Forensic Scientist Gainsborg
as both lay opinion and expert
witness.

POINT VI
THE PROSECUTOR'S COMMENTS DURING SUMMATION
CONSTITUTED PROSECUTORIAL MISCONDUCT
DEPRIVING THE DEFENDANT OF A FAIR TRIAL. THE
COURT ERRED IN NOT GRANTING DEFENDANTS' MOTION
FOR A MISTRIAL. THE CURATIVE INSTRUCTIONS
GIVEN ON TWO OF THE MOST EGREGIOUS COMMENTS
DID NOT ADEQUATELY REMEDY THE HIGHLY
INFLAMMATORY AND PREJUDICIAL COMMENTS MADE BY
THE PROSECUTOR.

A – The Blood Evidence Shouting from the
Grave

B – The Boot Print Impression Size

C – Comments on Evidence Not Adduced at
the Trial

POINT VII
THE COURT ERRED WHEN IT FAILED TO SUA SPONTE
CHARGE THE LESSER INCLUDED OFFENSES OF
AGGRAVATED MANSLAUGHTER AND RECKLESS
MANSLAUGHTER. (Not Raised Below)

6 A-4022-12T1
 POINT VIII
THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH
DID NOT TAKE INTO CONSIDERATION ALL
APPROPRIATE CODE SENTENCING PROVISIONS.

Thompson raises the following additional points.

POINT I
THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S
MOTIONS FOR JUDGMENT OF ACQUITTAL AND THEN
WHEN IT DENIED THE DEFENDANT'S MOTION FOR A
NEW TRIAL.

POINT II
THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S
PRO SE MOTIONS TO DISMISS THE INDICTMENT AS
IT IS PREMISED UPON INACCURATE INFORMATION AND
ADMITTEDLY FALSE TESTIMONY.

POINT III
THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S
MOTIONS TO EXCLUDE THE TESTIMONY OF THOMASINA
PAIGE FOR THE PROSECUTOR'S FAILURE TO PROVIDE
DETAILED SUMMARIES OF THE INTERVIEWS THAT THEY
HAD WITH THE WITNESS IN PREPARATION FOR TRIAL.

POINT IV
THE COURT ERRED IN DENYING THE MOTION FOR
MISTRIAL BASED ON THE IMPACT OF SUPERSTORM
SANDY ON THE COURSE OF THE TRIAL. IN THE
ALTERNATIVE, THE COURT ERRED IN FAILING TO
INQUIRE OF ALL OF THE JURORS WHETHER AND HOW
THE STORM WAS IMPACTING THEM AND THEIR ABILITY
TO RENDER A FAIR AND IMPARTIAL VERDICT.

In a supplemental letter brief, Thompson raises the following

additional point:

POINT IX
THE RECENT PUBLISHED APPELLATE DIVISION
DECISION IN STATE V. VICTOR GONZALEZ, []
MANDATES REVERSAL OF THE DEFENDANT'S
CONVICTIONS FOR THE SAME REASONS EXPRESSED IN
THAT CASE: THE REPEATED US[E] OF "AND/OR"

7 A-4022-12T1
 LANGUAGE IN THE ACCOMPLICE LIABILITY JURY
INSTRUCTION AND IN THE CONSPIRACY INSTRUCTION
AS WELL AS THE FELONY MURDER INSTRUCTION COULD
HAVE EASILY LED TO AN IMPROPER VERDICT FROM
IMPROPER JURY DELIBERATIONS. (Partially
Raised Below)

After careful consideration of the arguments in light of the

facts and the law, we affirm.1

I.

Defendants' convictions arose out of a home invasion and

murder that occurred on January 18, 2010, at a residence in

Irvington, New Jersey. The evidence at trial established that the

home was a two-family house where an adult brother and sister

lived with their respective families. The sister, M.B.2, lived on

the first floor with her son, J.B., her daughter, and her

boyfriend, the victim, A.H. The brother, D.B., lived on the second

floor with his daughter, K.B., and his granddaughter.

In the late evening on January 18, 2010, M.B. heard a banging

noise and gunshots. She locked herself in the bathroom and called

911. K.B. was doing homework in her living room on the second

floor and she heard what sounded like glass shattering. She went

downstairs and saw A.H. on his knees with two men standing on

1 We have consolidated these appeals for the purposes of this
opinion.
2 We use initials to protect the privacy interest of the victims
and witnesses.

8 A-4022-12T1
either side of him. One of the men had A.H. in a headlock and

another man was pointing a gun at A.H. One of the men saw K.B.

and pointed the gun at her, prompting her to retreat upstairs.

J.B. was in his downstairs bedroom when he first heard a

banging noise. He then went to his door and saw a man hop over the

counter into the kitchen area. He could not see the man's face,

but he saw a gun in the man's hand. J.B. closed his bedroom door

and heard a gunshot and then heard three more gunshots. He escaped

by climbing out the window.

D.B. was upstairs in bed when he heard a scuffle erupt in the

downstairs apartment. Upon going downstairs, D.B. saw two

individuals in the home, one wearing a "netted mask" and pointing

a gun at A.H. and another holding A.H. by the neck. The man

pointed the gun at D.B. and told him to "get the fuck out of

there." D.B. thereafter heard a gunshot and ran outside. As he

hid behind bushes, he heard more gunfire and saw two men get into

a car and drive away. Prior to their departure, D.B. was able to

see the face of one of the assailants.

Almost immediately, the police responded to the home. D.B.

pointed in the direction of the car and exclaimed to the police

that "the car is right there[,]" and "that's them, that's them."

The responding police officer testified that he followed the car

and pulled it over several blocks from the home. The males in the

9 A-4022-12T1
vehicle were later identified as Miller and Thompson. Thompson

was arrested on an outstanding warrant at the scene. Miller stayed

with the vehicle.

Shortly after pulling the car over, the police brought D.B.

to the scene. When D.B. arrived, Miller was standing by the car

in handcuffs. D.B. voluntarily identified Miller to the police,

saying "[t]hat's him." D.B. initially said he identified Miller

by his clothing, but then retracted this statement and testified

that he did not tell the police at the time that he could identify

Miller by his face because he feared for his family's safety. The

detectives who escorted D.B. to the scene testified that neither

of them said anything to D.B. during the ride over, and that D.B.

made his statement voluntarily. One of the detectives prepared a

report memorializing the positive identification, but failed to

include the words D.B. used.

Back at the home, the police found A.H. lying dead on the

basement floor, having been shot three times. The police conducted

a series of follow-up investigations and tests involving DNA

sampling, soil sampling, gunshot residue, and blood splattering.

Prior to trial, the defendants moved to suppress the out-of-

court identification by D.B. Thompson also moved to dismiss the

10 A-4022-12T1
indictment and sever the trials. After conducting a Wade3 hearing

and taking testimony, the court denied the defendants' motions.

As to the motion to suppress, the court found that the show-up,

although "inherently suggestive," was neither "necessarily

impermissibly suggestive nor . . . necessarily subvert[ed] the

reliability of the identification." The defendants failed to

"show a scintilla of probative evidence relating to

[suggestiveness] that would undermine the identification."

Thereafter, the court held a twelve-day jury trial. Among

other evidence, the State proffered numerous witnesses and expert

opinions, including a forensic scientist specializing in serology

(the study of blood serum) and a forensic scientist specializing

in DNA analysis. The serology expert found traces of blood on

Miller's white thermal shirt and dark blue-gray pants. The State's

forensic scientist analyzed the DNA samples from this clothing and

concluded the blood on the clothing was that of the victim, A.H.

As we noted earlier, following the jury's verdict, the court

sentenced both Miller and Thompson to life imprisonment subject

to NERA. Specifically, Miller received life imprisonment with

thirty years parole ineligibility on the first degree murder count,

subject to NERA; fifteen years for armed robbery with five years

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

11 A-4022-12T1
parole ineligibility, subject to NERA; twenty years for attempted

murder, with ten years parole ineligibility, subject to NERA;

eighteen months for aggravated assault; and ten years for unlawful

possession of a weapon, with five years parole ineligibility. All

counts were to run concurrent with the murder count. The court

merged the felony murder, conspiracy to murder and possession of

a firearm for an unlawful purpose counts into the murder

conviction, and the burglary count into the felony murder

conviction.

Thompson received life imprisonment with thirty years parole

ineligibility on the murder conviction, subject to NERA; fifteen

years for armed robbery with five years parole supervision, subject

to NERA; and ten years for unlawful possession of a weapon, with

five years parole ineligibility. The felony murder, conspiracy

to commit murder and possession of a weapon for an unlawful purpose

convictions were merged into the murder conviction, and the

burglary conviction merged into felony murder. All counts were

to run concurrent with the first degree murder conviction.

Defendants appealed.

II.

We turn first to the defendants' contention that the court

erred by denying the motion to suppress the out-of-court

identification by D.B. Defendants argue that this identification

12 A-4022-12T1
should have been suppressed because the police failed to record

the communications between the officers and D.B., and because the

show-up was unduly suggestive. We disagree.

When reviewing a motion to bar an out-of-court

identification, we focus on whether the findings could reasonably

have been reached on sufficient credible evidence in the record.

State v. Adams, 194 N.J. 186, 203 (2008). These findings "are

entitled to considerable weight." Ibid. (quoting State v. Farrow,

61 N.J. 434, 451 (1972)). We give deference to the findings that

"are substantially influenced by [the motion judge's] opportunity

to hear and see the witnesses and to have the 'feel' of the

case[.]" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State

v. Johnson, 42 N.J. 146, 161 (1964)).

"The admission of an unreliable out-of-court identification,

which resulted from impermissibly suggestive procedures[,]" is a

due process violation. State v. Smith, 436 N.J. Super. 556, 564

(App. Div. 2014). At the time of defendants' trial, New Jersey

followed the two-part standard articulated in Manson v.

Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977),

and adopted by our Supreme Court in State v. Madison, 109 N.J. 223

(1988). First, a court must decide whether the identification

procedure used was impermissibly suggestive. Manson, supra, 432

U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison,

13 A-4022-12T1
supra, 109 N.J. at 232. If the procedure was impermissibly

suggestive, the court "must then decide whether the objectionable

procedure resulted in a 'very substantial likelihood of

irreparable misidentification.'" Madison, supra, 109 N.J. at 232

(quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct.

967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). In other words,

"whether the impermissibly suggestive procedure was nevertheless

reliable by considering the totality of the circumstances and

weighing the suggestive nature of the identification against the

reliability of the identification." Adams, supra, 194 N.J. at 203

(quoting State v. Romero, 191 N.J. 59, 76 (2007)).

"Reliability is the linchpin." Madison, supra, 109 N.J. at

232 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253,

53 L. Ed. 2d at 154). An identification that is reliable may be

admissible despite an impermissibly suggestive nature. Ibid. In

assessing reliability, courts consider the opportunity of the

witness to view the accused at the time of the crime, the witness's

degree of attention at the time, the accuracy of a prior

description of the accused, the witness's level of certainty at

the time of the confrontation, and the time between the incident

and the confrontation. Id. at 239-40. These factors are weighed

against the corrupting effect of the suggestive identification.

Id. at 240.

14 A-4022-12T1
 Defendants argue that the identification should have been

suppressed since the State failed to produce any recordings of the

communications between the police and D.B. Defendants claim that

this failure violated the holding in State v. Delgado, 188 N.J.

48 (2006). In Delgado, the Court "require[d], as a condition to

the admissibility of out-of-court identifications, that the police

record, to the extent feasible, the dialogue between the witnesses

and police during an identification procedure." Id. at 51. Police

must "make a written record detailing the out-of-court

identification procedure, including the place where the procedure

was conducted, the dialogue between the witness and the

interlocutor, and the results." Id. at 63. This language served

as the basis for Rule 3:11. Notwithstanding this requirement, the

lack of such important details may not result in a new trial.

Subsection (d) of Rule 3:11 provides for other remedies in the

event that the record is lacking for a detailed account of an out-

of-court identification procedure. R. 3:11(d).

Here, it is undisputed that the police failed to maintain a

written record of the exchange with D.B. or even a detailed

summary. The record only contains an incident report that notes

D.B. identified Miller. However, the testimony provided at the

Wade hearing was sufficient to overcome the lack of a written

record. The certainty in D.B.'s statements and corroboration from

15 A-4022-12T1
another witness provided the basis for the motion judge to find

that the procedures used were not impermissibly suggestive and

that the lack of the recording did not undercut the reliability

of the out-of-court identification.

Moreover, at trial, the State presented evidence linking

defendants to the crime. D.B. testified that he saw defendants

in the house, saw Miller outside the house, and pointed the first

responding police unit in the direction of the car that left the

scene. Very soon thereafter, D.B. identified Miller standing by

that car. In addition, the State's experts testified that the

same clothes Miller wore when leaving the scene contained blood

samples with the victim's DNA. The State's evidence further

buttressed D.B.'s already-reliable out-of-court identification.

We discern no basis warranting reversal.

III.

We have considered defendants' other contentions in light of

the record and applicable legal principles and conclude that almost

all are without sufficient merit to warrant extensive discussion

in a written opinion. R. 2:11-3(e)(2). We add only the following

comments.

Defendants argue that the trial court erred by failing to

charge the jury sua sponte with the lesser included offenses to

murder of aggravated and reckless manslaughter. At the jury charge

16 A-4022-12T1
conference, defendants did not request a charge on aggravated

manslaughter and failed to object to the jury charge on the

omission of the aggravated manslaughter charge.

We review this omission for plain error. See R. 1:7-2; 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[.]" R. 2:10-2. The

inquiry is whether the omitted charge was clearly capable of

producing an unjust result, or whether there is a reasonable doubt

that the jury would have reached a different verdict had the charge

been given. Since defendants did not request the charge or object

to its omission, the trial court was only required to provide the

charge "when the facts adduced at trial clearly indicate[d] that

a jury could convict on the lesser while acquitting on the greater

offense." State v. Jenkins, 178 N.J. 347, 361 (2004).

Furthermore, "[t]he court shall not charge the jury with

respect to an included offense unless there is a rational basis

for a verdict convicting defendant of the included offense."

N.J.S.A. 2C:1-8(e). The charge is not appropriate if it "would

invite the jury to engage in sheer speculation[.]" State v.

Darrian, 255 N.J. Super. 435, 446 (App. Div.) (citation omitted),

certif. denied, 127 N.J. 560 (1992); see also State v. Brent, 137

N.J. 107, 118 (1994).

17 A-4022-12T1
 Aggravated and reckless manslaughter are lesser included

offenses to murder that are charged only when warranted. State

v. Ramsey, 415 N.J. Super. 257, 263-64 (App. Div. 2010), certif.

denied, 205 N.J. 77 (2011). Criminal homicide constitutes

aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1) when "[t]he

actor recklessly causes death under circumstances manifesting

extreme indifference to human life[.]" Criminal homicide

constitutes reckless manslaughter under N.J.S.A. 2C:11-4(b)(1)

when "[i]t is committed recklessly[.]" An actor is reckless "when

he [or she] consciously disregards a substantial and unjustifiable

risk that" causes, in this instance, death. N.J.S.A. 2C:2-2(b)(3).

The trial judge commented that he did not "see any lesser

included offenses" and that any lesser included offenses did not

fit the facts of the case. We defer to this reasoning. Defendants

failed to make an objection, and there is no evidence in the record

to part from the inference that defendants intended to kill A.H.

For instance, the record does not establish that either defendant

knew A.H. prior to the shooting, or that the gun shots occurred

during a struggle. As such, we discern no plain error or prejudice

warranting reversal.

Miller further argues that the court improperly instructed

the jury on the crimes of attempted murder, aggravated assault,

and burglary. This argument is without merit. The court

18 A-4022-12T1
instructed the jury on these crimes with near verbatim recitations

of the Model Jury Charges. See Model Jury Charge (Criminal),

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) "Attempted Murder" (2011);

Model Jury Charge (Criminal), N.J.S.A. 2C:12-1(b)(4) "Aggravated

Assault" (2011); Model Jury Charge (Criminal), N.J.S.A. 2C:18-2(b)

"Burglary" (2011).

Defendants also contend that the State committed

prosecutorial misconduct during the summation by mischaracterizing

evidence and making several inflammatory statements. Defendants

argue these instances constituted reversible error and should have

resulted in a mistrial. We do not agree.

A prosecutor is limited in summation to commenting upon the

evidence and the reasonable inferences to be drawn therefrom.

State v. Feaster, 156 N.J. 1, 58-59 (1998). However, a prosecutor

has considerable leeway in presenting a summation. State v. Munoz,

340 N.J. Super. 204, 217 (App. Div.), certif. denied, 169 N.J. 610

(2001). Thus, prosecutors may vigorously and forcefully present

their closing argument. State v. Nelson, 173 N.J. 417, 460 (2002).

Prosecutorial misconduct in summation "will not serve as the basis

for reversal unless it was so egregious as to work a deprivation

of a defendant's right to a fair trial." Feaster, supra, 156 N.J.

at 59.

Here, none of the instances highlighted by defendants were

19 A-4022-12T1
so egregious so as to deprive them of their right to a fair trial.

The prosecutor either summarized prior evidence or provided fair

commentary and inferences deduced from the totality of the

evidence. In the rare instances at which the court sustained

defendants' objections, see, e.g., State v. Tilghman, 385 N.J.

Super. 45, 52-53 (App. Div.), certif. granted limited to sentence

and summarily remanded, 188 N.J. 269 (2006), the jury received

curative instructions. Neither defendant made an objection, and

we do not now find any plain error. State v. Bragg, 295 N.J.

Super. 459, 468 (App. Div. 1996) (citing to R. 1:7-2; R. 2:10-2).

Such a curative instruction occurred as a result of

defendants' motion for a mistrial. "Whether an event at trial

justifies a mistrial is a decision 'entrusted to the sound

discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47

(2016) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert.

denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)).

Appellate courts "will not disturb the trial court's ruling on a

motion for a mistrial, absent an abuse of discretion that results

in a manifest injustice." Ibid. (quoting State v. Jackson, 211

N.J. 394, 407 (2012)). Alternative courses of action, including

a curative instruction, constitute "viable alternative[s] to a

mistrial, depending on the facts of the case." Ibid.; see State

v. Winter, 96 N.J. 640, 646-47 (1984). Here, the court provided

20 A-4022-12T1
the curative instruction to the jury. This instruction is an

acceptable alternative to granting a mistrial. And again, neither

defendant objected. Furthermore, the court's instruction made

clear to the jury that it should disregard the remark, even though

the instruction did not expressly say as much.

Finally, defendants contend that their sentences were

excessive as the court failed to properly weigh the aggravating

and mitigating factors. Appellate review of a defendant's sentence

is deferential, unless the sentencing court fails to follow the

Code of Criminal Justice and basic principles of sentencing

discretion. State v. Case, 220 N.J. 49, 65 (2014). The

deferential standard will prevail if the sentencing court

identifies and properly balances the supported aggravating and

mitigating factors, and the result "does not shock the judicial

conscience." Ibid. (quoting State v. Roth, 95 N.J. 365 (1984)).

Here, both defendants received life sentences, with approximately

sixty-three years of parole ineligibility. Though the court did

not find any applicable mitigating factors for either defendant,

it appropriately explained how it arrived at the decision. As

such, we affirm the sentences imposed.

Affirmed.

21 A-4022-12T1