STATE OF NEW JERSEY VS. MURAD H. BEYAH (13-02-0478, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-1037-14T4

STATE OF NEW JERSEY,

Plaintiff–Respondent,

v.

MURAD H. BEYAH,

Defendant–Appellant.
_____________________________

Submitted September 14, 2016 – Decided August 31, 2017

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 13-02-0478.

Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant, a convicted sex offender, was charged with

violating Megan's Law by failing to register as a sex offender, a

crime of the third-degree, N.J.S.A. 2C:7-2(c)(3). A jury found

him guilty after a three-day trial in April 2014 and defendant was

sentenced to four years of imprisonment, plus applicable fines and

penalties. Defendant now appeals, asserting several trial errors.

For the reasons that follow, we affirm.

I.

The record shows that, in 1986, defendant was convicted of

rape and sodomy in New York, which triggered the Megan's Law

registration requirements. Upon his release from prison after

serving a twenty-five-year sentence for the sex offenses,

defendant indicated he was moving to New Jersey. About two years

after moving to Newark, he contacted the local police department

about registering. However, upon meeting with a Newark detective,

defendant refused to comply with the registration requirements and

was subsequently indicted for failing to register.

At trial, the State presented three witnesses: Essex County

Prosecutor's Office Detective Sabrina Howard, who produced a

certified copy of defendant's March 13, 1986 New York convictions

for first-degree sodomy and first-degree rape; Tracy Nelson, the

Offender Rehabilitation Coordinator at Bare Hill Correctional

Facility in New York where defendant was incarcerated, who was

2 A-1037-14T4
responsible for coordinating defendant's completion of his sex

offender registration paperwork upon his release from prison; and

Newark Police Department Detective Miguel Aviles, with whom

defendant met in 2012 in connection with registering in New Jersey

as a sex offender. Defendant did not testify. Through defense

counsel's examination of the witnesses and arguments to the jury,

defendant maintained that he did not "knowingly" fail to register.

Nelson testified that she first met with defendant on July

21, 2010, before he was released from the Bare Hill Correctional

Facility in Malone, New York, in order to complete his sex offender

registration paperwork. Nelson testified she placed the six-page

New York State Sex Offender Registration Form on the table between

herself and defendant so that he could read along while she read

the form to him line-by-line. The form notified defendant that,

among other things, upon his release from custody, he was obligated

to:

[N]umber one, . . . complete a sex offender
registration form to register with the
Division of Criminal Justice Services, DCJS
. . . [in] Albany, New York . . . fifteen days
prior to your release from a state or local
correctional facility or upon the imposition
of a probation sentence to verify your
intended home address. The completion of this
form and its submission to DCJS satisfies your
initial obligation to register and verify your
intended home address.

Number two, . . . notify DCJS in writing
of any change of home address no later than
3 A-1037-14T4
 ten days after your move. Note, change of
address forms are available at your local law
enforcement agency, parole or probation
office, or from DCJS. If you move to another
state you must register as a sex offender
within ten days of establishing residence.

. . . .

Number four, . . . verify your home
address once a year for the duration of your
registration through the return of a signed
Address Verification Form to DCJS within ten
days of its receipt.

The form also advised defendant that he "may be requested to

provide fingerprints, a photograph or other pertinent information

found necessary for compliance with this act."

After Nelson read the form to defendant on July 21, 2010,

defendant refused to sign the form. Nelson read the form to

defendant again on July 22 and 26, 2010. On July 22, 2010,

defendant was released from prison. Although defendant again

refused to sign the form, he was given a copy of the form with his

release papers. However, on July 26, 2010, defendant initialed

the form in four places and signed the form but wrote "[u]nder

protest" next to his initials and signature. Defendant signed the

form below a provision stating "I understand I have a duty to

register and my duties were explained to me." On July 26,

defendant also provided "South 19th Street, Newark, New Jersey"

as his residence address upon his release.

4 A-1037-14T4
 On cross-examination, Nelson acknowledged that she did not

attempt to ascertain whether defendant had a hearing problem

because he gave no indication that he could not hear. Nelson also

testified that because defendant refused to sign the form on July

22, 2010, rather than being released, he was arrested at the

facility by the local police and transported to the county jail.

When defendant was ultimately released from custody in New York

on July 26, 2010, he left the facility with his family.

It is unclear when defendant took up residence in New Jersey.

However, as of July 31, 2010, defendant registered for a New Jersey

driver's license using the South 19th Street address in Newark as

his residence. On September 11, 2012, defendant contacted Aviles

via telephone to make an appointment to register as a sex offender

in the State of New Jersey. Aviles was a sixteen-year veteran of

the Newark Police Department and had been assigned to the Special

Victims Unit with responsibility for completing Megan's Law

registration forms since 2006. Aviles instructed defendant to

come to his office on December 6, 2012, to complete his sex

offender registration. Aviles explained that the delay in

scheduling an appointment was not uncommon due to the understaffing

of the Special Victims Unit and the high volume of sex offenders

residing in Newark.

5 A-1037-14T4
 When defendant arrived for his appointment on December 6,

2012, he verified and signed the New Jersey Sex Offender

Registration Form (Registration Form) containing his pedigree

information. On the Registration Form, defendant's address was

listed as South 19th Street, Basement, Newark, New Jersey, and

defendant verified that he had been living at the South 19th Street

address since 2010. In addition to the Registration Form,

defendant was instructed to complete the State of New Jersey

Acknowledgment of Duty to Register, Re-Register, and Verify

Address Form (Acknowledgement Form).

The Acknowledgement Form informs registrants that, under

Megan's Law, they are required to register and verify their

addresses with their local or state police in the municipality

where they reside and failure to do so is a violation of Megan's

Law and is punishable by up to five years in state prison. The

Acknowledgement Form also contains eight paragraphs, each of which

states a duty or limitation imposed on the registrant. Beside

each paragraph, the registrant is required to sign or initial the

Acknowledgement Form.

In addition to giving defendant a chance to read the

Acknowledgment Form himself, Aviles read the form in its entirety

out loud to defendant and informed defendant that he was required

to sign or initial after each paragraph. Aviles testified that

6 A-1037-14T4
he had no indication from defendant that he could not hear what

he was being told or that he could not write. Defendant initialed

paragraphs one through six, and signed the form on the signature

line at the bottom of the form, but refused to initial paragraphs

seven and eight, prompting Aviles to write "[r]efused" next to

those two paragraphs. Paragraph Seven of the Acknowledgement Form

stated:

I understand that I must register with the
chief law enforcement officer of the
municipality in which I intend to reside
within 48 hours of my release from this
institution. I understand that I may be
charged with failure to register or re-
register, a third-degree offense, as required
by law.

Paragraph Eight of the Acknowledgement Form stated:

I understand that if I remain offense-free for
15 years from the date of conviction or
release from prison, whichever is later, I may
apply to the Superior Court to be relieved of
my obligation to register, unless I have more
than one sex offense or if any of the offenses
were [A]ggravated [S]exual [A]ssault or
[S]exual [A]ssault.

In addition to notifying defendant that he was required to

sign or initial after paragraphs seven and eight, Aviles informed

defendant that he was required to submit to fingerprinting and

photographing as part of the registration process. However,

defendant refused despite Aviles pleading with him to submit to

fingerprinting and photographing and warning him that his failure

7 A-1037-14T4
to do so would result in his arrest. Defendant again refused to

comply and was placed under arrest.

At the conclusion of the State's case, defendant moved for a

judgment of acquittal pursuant to R. 3:18-1, which the court

denied. Following the guilty verdict, defendant moved for a new

trial pursuant to R. 3:20-1, which was also denied by the court.

This appeal followed.

On appeal, defendant raises the following points for our

consideration:

POINT I - THE TRIAL COURT ADMITTED IMPROPER
LAY OPINION TESTIMONY ON THE ULTIMATE FACTUAL
ISSUE.

POINT II - THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW
TRIAL MOTIONS

POINT III - DEFENDANT WAS PREJUDICED BY THE
ADMISSION OF INADMISSIBLE "OTHER CRIMES"
EVIDENCE.

POINT IV - THE PROSECUTOR MADE IMPROPER
COMMENTS IN HIS SUMMATION.

II.

For the first time on appeal, defendant argues in Point One

that the trial court admitted improper lay opinion testimony on

the ultimate factual issue, namely, whether defendant failed to

register as a sex offender. Specifically, defendant asserts that

Detective Aviles, who was not offered as an expert witness, was

permitted to offer his opinion that defendant "hasn't truly
8 A-1037-14T4
registered[.]" According to defendant, Detective Aviles' opinion

was improper "because it usurped the province of the jury," by

expressing an "opinion as to [d]efendant's guilt" and "[s]uch

testimony is inadmissible when offered by any lay or expert

witness." Defendant argues further that "as the opinion of a

person engaged in law enforcement," the "prejudicial effect" of

Detective Aviles' "improper opinion was enhanced."

As defense counsel did not object, we review defendant's

argument pursuant to the plain error standard. R. 2:10-2. Under

that standard, a conviction will be reversed only if the error was

"clearly capable of producing an unjust result[,]" that is, if it

was "sufficient to raise a reasonable doubt as to whether the

error led the jury to a result it otherwise might not have

reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (citation

omitted). Defendant must prove that the error was clear and

obvious and that it affected his substantial rights. State v.

Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S.

Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other

grounds, State v. Boretsky, 186 N.J. 271, 284 (2006). A

defendant's failure to object leads to the reasonable inference

that the issue was not significant in the context of the trial.

State v. Macon, 57 N.J. 325, 333 (1971).

N.J.R.E. 701 provides:

9 A-1037-14T4
 If a witness is not testifying as an expert,
the witness' testimony in the form of opinions
or inferences may be admitted if it (a) is
rationally based on the perception of the
witness and (b) will assist in understanding
the witness' testimony or in determining a
fact in issue.

"Lay opinion testimony, therefore, when offered either in civil

litigation or in criminal prosecutions, can only be admitted if

it falls within the narrow bounds of testimony that is based on

the perception of the witness and that will assist the jury in

performing its function." State v. McLean, 205 N.J. 438, 456

(2011). In addition, N.J.R.E. 704 permits the admission of

testimony in the form of an opinion, which "embraces an ultimate

issue to be decided by the trier of fact."

During Detective Aviles' testimony, the following exchange

occurred:

Q: Did you . . . say anything to him when he
wouldn't give the prints, take a photograph,
sign it, or [sign or initial paragraphs] seven
and eight?

A: Yes. I explained to [defendant] that his
refusal to sign could result in his arrest.
And I pleaded with [defendant] to please sign
and initial, because I didn't see a reason for
him not to as this information was being given
to him for informational purposes. It wasn't
an agreement between me and him. It was simply
something that was required to be done.

Q: And he still did not oblige; is that
correct?

A: Yes.
10 A-1037-14T4
 Q: So he hasn't truly registered for this
December 6, 2012 register form; is that
correct?

A: Correct.

As an eight-year veteran of the Special Victims Unit,

Detective Aviles' lay opinion testimony on the sex offender

registration process and its requirements was appropriate. His

testimony comports with N.J.R.E. 701 as it was based on his

personal observations of defendant's actions during the

registration process and would assist in understanding his

testimony and determining a fact in issue. Further, Detective

Aviles did not opine on whether defendant was guilty of the charged

offense as the State was required to prove that defendant

"knowingly" failed to register as a sex offender as one of the

elements of the offense. N.J.S.A. 2C:7-2.

Even if Detective Aviles' testimony was error, it lacked the

capacity to bring about an unjust result in light of the

overwhelming evidence of defendant's guilt. Clearly, defendant's

actions fell short of the requirements delineated in the

Acknowledgement Form for sex offender registration. Further, the

fact that defendant was admittedly living in Newark since July

2010, but did not attempt to register until September 2012, is

itself sufficient evidence of a violation of the requirements of

11 A-1037-14T4
Megan's Law, which mandates registration within ten days of moving

into the state.

III.

We turn next to Point Two in which defendant argues that the

court erred in denying his judgment of acquittal and new trial

motions. At the conclusion of the State's case, defendant moved

for a judgment of acquittal pursuant to R. 3:18-1, arguing the

State failed to prove an element of the crime, namely, the

requisite "knowing" mental state. Defendant also moved for a new

trial prior to his sentencing based on the State's "failure to

prove a knowing violation[,]" and on what defense counsel

characterized as the prosecutor's "obscene gesture during his

summation." On that basis, defendant argues that his conviction

constituted a miscarriage of justice, entitling him to a new trial.

A court shall enter an order for a judgment of acquittal only

"if the evidence is insufficient to warrant a conviction." R.

3:18-1. The standard to be applied in determining a motion for a

judgment of acquittal at the conclusion of the State's case is set

forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine
is whether, viewing the State's evidence in
its entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a

12 A-1037-14T4
 reasonable jury could find guilt of the charge
beyond a reasonable doubt.

[Ibid.]

Under Rule 3:18-1, the trial judge "'is not concerned with

the worth, nature or extent (beyond a scintilla) of the evidence,

but only with its existence, viewed most favorably to the State.'"

State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v.

Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied,

67 N.J. 72 (1975)). "If the evidence satisfies that standard, the

motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

On appeal, we apply the same standard. State v. Bunch, 180 N.J.

534, 548-49 (2004); State v. Josephs, 174 N.J. 44, 81-82 (2002),

certif. denied, 188 N.J. 579 (2006).

A motion for a new trial is governed by Rule 3:20-1, which

directs that a trial judge may not set aside a jury verdict as

against the weight of the evidence "unless, having given due regard

to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a

manifest denial of justice under the law." Defendant's argument

is governed by Rule 2:10-1, which directs that a trial court's

ruling on a motion for a new trial "shall not be reversed unless

it clearly appears that there was a miscarriage of justice under

the law." We have stated that,

13 A-1037-14T4
 [A] motion for a new trial is addressed to the
sound discretion of the trial judge, and the
exercise of that discretion will not be
interfered with on appeal unless a clear abuse
has been shown. Our scope of review is limited
to a determination of whether the findings
made by the trial court could reasonably have
been reached on sufficient credible evidence
present in the record. Moreover, we will give
deference to the trial judge's feel for the
case since he presided over [it] . . . and had
the opportunity to observe and hear the
witnesses as they testified.

[State v. Brooks, 366 N.J. Super. 447, 454
(App. Div. 2004) (alterations in original)
(citation omitted).]

Defendant argues that the court erred in denying his judgment

of acquittal motion because fingerprinting and photographing are

not registration requirements specified in N.J.S.A. 2C:7-2(c), and

paragraphs seven and eight of the Acknowledgement Form did not

apply to him. Consequently, defendant asserts that his conduct

did not constitute a "knowing" violation of the statute. In the

alternative, defendant argues that his fingerprints and photograph

were already on file by virtue of his past convictions and driver's

license, respectively.

Defendant's argument is specious. Under Megan's Law, "[a]

person [who is] required to register . . . shall do so on forms

to be provided by the designated registering agency." N.J.S.A.

2C:7-2(c). N.J.S.A. 2C:7-4(b) further clarifies that "[t]he

[registration] form . . . shall include . . . fingerprints and a

14 A-1037-14T4
brief description of the crime or crimes for which registration

is required[.]" Additionally, the Attorney General may require

information other than an offender's address as part of the

verification process, and such information may include

photographing. N.J.S.A. 2C:7-2(e); see Attorney General

Guidelines for Law Enforcement for the Implementation of Sex

Offender Registration and Community Notification Laws 29 (Feb.

2007), http://www.nj.gov/oag/dcj/megan/meganguidelines-2-07.pdf.

Furthermore, our Supreme Court has held that registration

under Megan's Law for those no longer in custody requires

"appearance at a local police station for fingerprinting,

photographing, and providing information for a registration form

that will include a physical description, the offense involved,

home address, employment or school address, vehicle used, and

license plate number." Doe v. Poritz, 142 N.J. 1, 21 (1995)

(citing N.J.S.A. 2C:7-4(1)-(2)); see also In re Registrant J.G.,

169 N.J. 304, 319 (2001). Poritz specifically notes that the

registration requirements also apply to sex offenders convicted

elsewhere who relocate to the state. Ibid.

Thus, contrary to defendant's assertion, fingerprinting and

photographing are clearly required as part of the registration

process. Moreover, the obligation to provide fingerprints and

photographs is not excused for registrants whose information is

15 A-1037-14T4
already on file as undoubtedly would be the case for all previously

convicted felons. Further, although paragraphs seven and eight

of the Acknowledgement Form did not apply to defendant, under

Megan's Law and the Attorney General's Guidelines, an offender's

failure to complete the registration form as required by the

registering agency may form the basis for a failure to register

charge.

Here, a reasonable jury could infer that defendant acted

knowingly as required under N.J.S.A. 2C:7-2.

A person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his
conduct is of that nature, or that such
circumstances exist, or he is aware of a
high probability of their existence. A
person acts knowingly with respect to a
result of his conduct if he is aware that it
is practically certain that his conduct will
cause such a result.

[N.J.S.A. 2C:2-2(b)(2).]

Knowledge may be reasonably inferred from the circumstances. See

Spivey, supra, 179 N.J. at 237.

Aviles warned defendant that his failure to initial or sign

the Acknowledgment Form in its entirety and submit to

fingerprinting and photographing would lead to his arrest.

Defendant had similar conversations with Nelson and had been

arrested before for failing to comply with similar sex offender

registration requirements in New York. Therefore, viewing the
16 A-1037-14T4
evidence adduced at trial in the light most favorable to the State,

a reasonable jury could infer that defendant's failure to register

as a sex offender was knowing and thereby find proof of guilt

beyond a reasonable doubt. Likewise, defendant's argument that

he is entitled to a new trial based on the State's failure to

prove a knowing violation of the statute must fail. Defendant's

assertion that the prosecutor's "obscene gesture during his

summation" amounted to a manifest denial of justice entitling him

to a new trial will be addressed later in this opinion.

IV.

Defendant argues in Point Three that he was prejudiced by the

admission of "other crimes" evidence. Specifically, defendant

asserts that "the admission of the detailed testimony regarding

[his] initial refusal to sign" the registration forms in New York,

and "his later signing 'under protest,' constituted inadmissible

"other crimes" evidence which denied him a fair trial." According

to defendant, the admission of the evidence "was completely

gratuitous, was of no probative value to the issues in dispute,

and was designed simply to cause the jury to think of [d]efendant

as a bad person in general." Because defendant failed to object

at trial, we again view this contention through the prism of the

plain error standard.

N.J.R.E. 404(b) provides in pertinent part:

17 A-1037-14T4
 [E]vidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of
a person in order to show that such person
acted in conformity therewith. Such evidence
may be admitted for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or
absence of mistake or accident when such
matters are relevant to a material issue in
dispute.

In general, other-crime evidence is not admissible to prove guilt

by criminal predisposition. N.J.R.E. 404(b); see also State v.

Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove

one crime by proving another.") (citation omitted). The rationale

for this is that a jury, aware of such evidence, may be tempted

to convict, not by reason of proof, but by reason of perception.

State v. Gibbons, 105 N.J. 67, 77 (1987).

"The threshold determination under Rule 404(b) is whether the

evidence relates to 'other crimes,' and thus is subject to

continued analysis under Rule 404(b), or whether it is evidence

intrinsic to the charged crime, and thus need only satisfy the

evidence rules relating to relevancy, most importantly Rule 403."

State v. Rose, 206 N.J. 141, 179 (2011). An uncharged offense is

intrinsic evidence of a charged crime if: (1) "it 'directly proves'

the charged offense[,]" or (2) the uncharged act was "performed

contemporaneously with the charged crime" and it "facilitate[d]

the commission of the charged crime." Id. at 180 (citation

omitted). Under this analysis, "background" or "completes the
18 A-1037-14T4
story" evidence is admissible as intrinsic evidence "under the

inextricably intertwined test." Ibid.

We are satisfied that the evidence was admitted for a

specific, non-propensity purpose, namely, to establish an element

of the crime with which defendant was charged by showing that

defendant's failure to register under Megan's Law was "knowing."

Indeed, defendant himself acknowledges that "[t]he purpose of Ms.

Nelson's testimony was to establish that, at the time of his

release from prison in New York, [d]efendant [was] advised that

if he moved to another state[,] he was required to register as a

sex offender in that state." As such, we conclude the evidence

was not impermissible other-crime evidence and its admission was

not erroneous. Furthermore, under the plain error standard, an

unchallenged error merits reversal only if it is "clearly capable

of producing an unjust result." R. 2:10-2. Here, given the

substantial proofs offered by the State during trial, the admission

of the challenged evidence does not undermine our confidence in

the outcome.

V.

Finally, in Point Four, defendant argues that the prosecutor

committed prosecutorial misconduct during summation by (1) making

"an obscene gesture" of "moving his hand under his chin" and

attributing the gesture to defendant while referencing defendant's

19 A-1037-14T4
refusal to sign the registration forms in New York; (2) implying

that defendant's past non-compliance in New York in 2010 continued

in 2012 and "improperly painted [d]efendant" as a person who was

likely to disregard his obligation to register; and (3) "inferred

that [d]efendant had an obligation to prove his innocence" by

arguing that there had been no testimony regarding defendant's

ability to write or defendant having mental health issues.

Defendant objected to the hand gesture and requested a mistrial,

which was denied, but did not object to the latter comments urged

now on appeal, thereby subjecting them to plain error scrutiny.

For prosecutorial conduct "[t]o justify reversal, the

prosecutor's conduct must have been clearly and unmistakably

improper," and "so egregious as to deprive defendant of a fair

trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citation

omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.

2d 817 (2008). In reviewing the trial record for reversible error,

an appellate court "must consider several factors, including

whether 'timely and proper objections' were raised, whether the

offending remarks 'were withdrawn promptly,' and whether the trial

court struck the remarks and provided appropriate instructions to

the jury[.]" State v. Smith, 212 N.J. 365, 403 (2012) (quoting

State v. Frost, 158 N.J. 76, 83 (1999)), cert. denied, 568 U.S.

1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

20 A-1037-14T4
 While prosecutors "are expected to make vigorous and forceful

closing arguments to juries[,]" Frost, supra, 158 N.J. at 82

(citation omitted), "prosecutors should not make inaccurate legal

or factual assertions during a trial" and "they must confine their

comments to evidence revealed during the trial and reasonable

inferences to be drawn from that evidence." State v. Mahoney, 188

N.J. 359, 376 (2006) (quoting State v. Smith, 167 N.J. 158, 178

(2001), cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d

368 (2006). "Additionally, an appellate court will consider

whether the offending remarks were prompted by comments in the

summation of defense counsel." Smith, supra, 212 N.J. at 403-04

(citation omitted). "A prosecutor's otherwise prejudicial

arguments may be deemed harmless if made in response to defense

arguments." State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.),

certif. denied, 208 N.J. 335 (2011).

If, after reviewing the prosecutor's conduct, "it is apparent

to the appellate court that the remarks were sufficiently

egregious, a new trial is appropriate, even in the face of

overwhelming evidence that a defendant may, in fact, be guilty."

Smith, supra, 212 N.J. at 404. "In contrast, if the prosecutorial

remarks were not 'so egregious that [they] deprived the defendant

of a fair trial[,]' reversal is inappropriate." Ibid. (quoting

Frost, supra, 158 N.J. at 83).

21 A-1037-14T4
 After defense counsel objected to the hand gesture, this

sidebar colloquy ensued:

[DEFENSE COUNSEL]: I'd like to ask for a
mistrial. I don't know if the [c]ourt saw it,
but the prosecutor made a gesture which means
fuck you . . . Italian gesture under his chin
when he said, "he didn't sign it." I move for
mistrial. I have no idea why the prosecutor
would do that, implied my client said, "fuck
you," when that wasn't part of the evidence
of the case.

[PROSECUTOR]: I'm not saying he said, "fuck
you." I'm saying he was noncompliant, in
essence did not cooperate.

[COURT]: Does not necessarily mean that
. . . we're not going to get into gestures.

[PROSECUTOR]: I don't believe it requires a
mistrial. What I'm showing is telling the
jury he was not complying with this.

[COURT]: I didn't see the gesture, . . . .

[PROSECUTOR]: I didn't stick a middle finger
up . . . .

[COURT]: For the record, I gather, the
[d]efense describing what was apparently the
gesture of taking one's fingers under the
chin, flicking them forward, I gather.

[PROSECUTOR]: That's right.

[THE COURT]: I'm going to deny the
application for a mistrial, ask the jury [to]
ignore the prior gesture.

The court then instructed the jury to "disregard the motion, the

gesture of the [p]rosecutor."

22 A-1037-14T4
 While the gesture may have been ill-advised, we conclude that

it did not deprive defendant of a fair trial. An improper

"fleeting and isolated" remark [or gesture] in summation is not

grounds for reversal. State v. Watson, 224 N.J. Super. 354, 362

(App. Div.), certif. denied, 111 N.J. 620 (1988), cert. denied,

488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988). Moreover,

the court's immediate instruction to the jury to disregard the

gesture obviated the potential for prejudice. We therefore discern

no basis to conclude that the judge's exercise of discretion in

denying the mistrial motion and providing the curative instruction

constituted "an abuse of discretion that result[ed] in a manifest

injustice." State v. Smith, 224 N.J. 36, 47 (2016) (citation

omitted).

We also reject defendant's contention that the prosecutor's

comments referencing defendant's past refusal to sign the New York

registration form and ultimately signing under protest was

improper comment. On the contrary, the comments were confined to

evidence revealed during the trial and reasonable inferences to

be drawn from that evidence. We have already concluded that the

admission of this evidence was proper. Moreover, the comments

were responsive to defense counsel's extensive discussion during

his summation of defendant's interaction with Nelson during the

New York registration process.

23 A-1037-14T4
 Likewise, we reject defendant's assertion that the prosecutor

impermissibly inferred that defendant must prove his innocence,

thereby shifting the burden of proof to defendant, by stating in

summation:

And there's been no testimony, ladies and
gentlemen, about whether the [d]efendant can
write or anything like that. There's been no
testimony about mental health issues. You are
not to speculate about anything in this case.
You are to take the evidence and apply it to
the law.

A prosecutor may never suggest a shifting of the burden of

proof to defendant. See State v. Loftin, 146 N.J. 295, 389 (1996).

However, here, we do not interpret the prosecutor's remark as such

but rather a response to the following comments by defense counsel

in his summation:

So I would ask that you look at paragraph
two closely. And just for the average person,
not a person that may have a disability or
anything, would have trouble understanding.
The average person would have trouble
understanding that instruction.

. . . .

In New York Ms. Nelson went through the
form with him. Prior to going through the
form she didn't ascertain like how educated
he was, whether he could read or write. Now
I'll submit to you, yes, he can write. I'm
not trying to say oh, well, he was, you know,
he was completely oblivious to what's going
on. I'm talking about the process.

24 A-1037-14T4
In any event, any prejudice to defendant was undoubtedly cured by

the court's instruction to the jury that "[t]he burden of proving

each element of a charge beyond a reasonable doubt rests upon the

State and that burden never shifts to the [d]efendant."

Additionally, defense counsel failed to object to both of

these comments, suggesting that they were not overtly or unduly

prejudicial. Generally, when defense counsel fails to object to

purportedly improper remarks, "the remarks will not be deemed

prejudicial" as "[t]he failure to object suggests that defense

counsel did not believe the remarks were prejudicial at the time

they were made. The failure to object also deprives the court of

an opportunity to take curative action." State v. R.B., 183 N.J.

308, 333 (2005) (quoting Frost, supra, 158 N.J. at 82-84), certif.

denied, 205 N.J. 520 (2011).

Moreover, a prosecutor's improper remarks made during

summation can be cured so long as the trial court "clearly

instruct[s] the jury that the remarks made . . . were not evidence,

but argument." Smith, supra, 212 N.J. at 409. Here, in the

context of the entire summation and defense counsel's intense

attack on the registration process in New York, the prosecutor's

brief remarks did not deprive defendant of his fundamental right

to a fair trial. Moreover, defense counsel's failure to object

suggests that the remarks were not prejudicial, and any prejudice

25 A-1037-14T4
that arose was cured by the court's clear instructions to the jury

that the attorneys' "[a]rguments, statements, remarks" made in

summations were "not evidence and must not be treated as evidence."

Affirmed.

26 A-1037-14T4