STATE OF NEW JERSEY VS. DEMARCUS DREW (12-09-2526 AND 11-06-1382, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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 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-5494-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEMARCUS DREW,

Defendant-Appellant.

______________________________

Submitted September 19, 2017 – Decided August 8, 2018

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
12-09-2526 and 11-06-1382.

Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM

Defendant Demarcus Drew challenges his July 9, 2015 judgment

of conviction in Indictment No. 12-09-2526. We affirm.
 I.

Defendant and Lisa Drew were dating for about six years, but

titled themselves as husband and wife.1 Lisa's son Dennis Harris

lived with them in a second-floor apartment in Camden.

Harris testified as follows. Lisa let it be known to

defendant that she was having a relationship with Marvin Simpson,

known as Saleem. Defendant was jealous and angry, and did not

want that relationship to continue. Defendant and Simpson had a

violent relationship. They had a fight in which defendant

"wouldn't stop punching" Simpson.

Harris testified that a "couple days" after the fight, in the

pre-dawn hours of November 4, 2011, Harris awoke to hear Lisa

screaming his name. Harris looked out the window. Harris could

see defendant "perfectly" because defendant was standing right

underneath a lamppost. Harris saw defendant standing with his arm

out holding a gun, heard six shots fired, saw flashes from the

gun, and saw a man fall to the ground. Harris went outside and

saw defendant running across a field carrying a revolver. Lisa

was huddled over the fallen man, yelling out "Saleem."

At around 4:45 a.m., the police arrived and found Simpson

being held by Lisa, who was hollering. Simpson was taken to the

1
We refer to her as "Lisa" to avoid confusion.

2 A-5494-14T1
hospital. Detective Virginia Fallon processed the crime scene.

She found no shell casings, and testified a revolver does not

eject shell casings. No gun was ever recovered.

Harris was taken to the prosecutor's office, where he

identified a photograph of defendant as the man he had seen with

the gun. Harris initially denied he had seen the shooting. He

later testified he did so because defendant "was still on the

loose" and he was scared for Lisa and himself.

Wesley Ruiz testified as follows. He was with Simpson during

the pre-dawn hours of November 4, smoking marijuana and drinking.

While they went for a walk, Simpson had Ruiz knock at defendant's

house, and yell upstairs for Simpson's female friend who lived

there. Ruiz saw a man come to the window and say "don't come back

here." The man was "dark skinned, skinny" with a "short haircut."

Ruiz testified that Simpson went to the house and yelled

upstairs for his female friend. The man came to the window again

and slammed it shut. The man then came running out of the house

with a gun, got really close to Simpson, and started shooting.

Ruiz ran. He heard three or four shots, perhaps more.

Later that day, detectives showed Ruiz a photo array, and a

video of the procedure was shown to the jury. Ruiz testified that

he was unable to make a positive identification, but indicated one

photo "looked close" and "look[ed] something like him with an

3 A-5494-14T1
Afro, but he didn't have no Afro." The photo showed defendant

with an Afro. Ruiz was unable to identify defendant at trial.

Simpson died from his five gunshot wounds. Defendant was

indicted for murder and other offenses. On December 7, 2011,

deputy U.S. Marshals in Chicago arrested defendant, who was

accompanied by Lisa.

Benjamin Alford testified defendant was housed with him at

the county jail, and they discussed defendant's case. Alford

testified that defendant said: he had a confrontation with a man,

and told him to stay away from his house; the man showed up at his

house one night; he chased and shot the man with a .22 revolver;

and he left for Chicago that day with the gun. Alford testified

against defendant under a cooperation agreement which gave him

five years in prison for robbery.

The jury acquitted defendant of murder, but convicted him of

second-degree manslaughter committed in the heat of passion

resulting from reasonable provocation, N.J.S.A. 2C:11-4(b)(2);

second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4; and second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5. The trial court sentenced him to a

total of twenty years in prison for those convictions.

Defendant appeals, arguing:

4 A-5494-14T1
 POINT I - THE COURT FAILED TO CONDUCT THE THIRD
STEP OF THE GILMORE ANALYSIS, REQUIRING
REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT II – THE COURT ERRONEOUSLY ADMITTED A
WITNESS'S NON-IDENTIFICATION, AND THE
PROSECUTOR IMPROPERLY ARGUED TO THE JURY THAT
THIS INADMISSIBLE NON-IDENTIFICATION ACTUALLY
PROVED THAT THE DEFENDANT WAS THE SHOOTER.
THESE ERRORS REQUIRE REVERSAL OF DEFENDANT'S
CONVICTIONS. (Partially Raised Below).

POINT III – THE DEFENDANT WAS DENIED A FAIR
TRIAL DUE TO THE ABSENCE OF JURY INSTRUCTIONS
ON HOW TO EVALUATE THE TESTIMONY OF A
COOPERATING WITNESS. (Not Raised Below).

POINT IV – DEFENDANT WAS PREJUDICED BY THE
TRIAL COURT'S FAILURE TO CHARGE THE JURY
REGARDING THE PROPER ASSESSMENT OF STATEMENTS
ALLEGEDLY MADE BY HIM. (Not Raised Below).

POINT V – THE COURT FAILED TO PROPERLY APPLY
THE YARBOUGH FACTORS SUCH THAT DEFENDANT'S
SENTENCE IS MANIFESTLY EXCESSIVE.

II.

Defendant's first challenge concerns the prosecutor's

exercise of peremptory challenges during jury selection. "[T]he

opponent of the strike bears the burden of persuasion regarding

racial motivation, and a trial court finding regarding the

credibility of an attorney's explanation of the ground for a

peremptory challenge is entitled to great deference." State v.

Thompson, 224 N.J. 324, 344 (2016) (quoting Davis v. Ayala, __

U.S. __, __, 135 S. Ct. 2187, 2199 (2015)). "[A] trial court's

ruling on the issue of discriminatory intent must be sustained

5 A-5494-14T1
unless it is clearly erroneous." Ibid. (quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008)). We must hew to our standard

of review.

During voir dire, an African-American potential juror, No.

197, testified he had a brother who had been arrested for multiple

charges. The prosecutor exercised a peremptory challenge. After

the next juror was questioned, there was a sidebar. Defense

counsel noted Juror No. 197 was African-American and "just ask[ed]

for the purposes of the record if there was any other reason" for

excusing him.2 The prosecutor responded:

[A]s he sat down, right before we got started,
he looked over at me with a weird smile, and
he made a motion with his finger across –
across his neck back and forth as if to make
the symbol of like cutting somebody's head off
or sawing someone's head off. . . . It made
me feel very uncomfortable that he was sort
of making motions to me and . . . I struck
him.

The trial court asked defense counsel if he saw any gestures, and

counsel replied: "I'm not challenging whether he saw it, but I

didn't."

Meanwhile, that next potential juror, No. 375, a Hispanic-

American female, had been asked: "If the State merely produces

2
The transcript attributes all the statements by attorneys during
this sidebar to "Unidentified," but context supports the
attributions given in text here.

6 A-5494-14T1
testimonial evidence, which is the testimony of individuals, and

doesn't have things like fingerprints, and you were satisfied

beyond a reasonable doubt, could you return a verdict in favor of

– of the State?" She answered "Possibly," "I guess no," and then

"No." When asked again, she replied "No," saying "[i]t would have

to be more than testimony – [it] would have to be scientific,

things of that nature." When asked a third time, she said "No,"

and then: "Without physical evidence? I don't know, . . . I would

probably have to hear the testimony." The trial court then asked:

"Could you follow my instructions as to the law in the case and

apply that law to the facts that you find?" She said "Yes."

At the same sidebar, the prosecutor challenged Juror No. 375

because "[s]he specifically said she couldn't convict someone

without physical evidence." The trial court said it was not going

to excuse Juror No. 375 for cause because she said she could listen

to the testimony and follow the court's instructions. The

prosecutor responded that her statement was "enough of a reason

. . . to use one of my peremptories." The court stated "Okay."

The prosecutor excused her with his next peremptory challenge.

An African-American potential juror, No. 893, said he had a

problem reading, saying "I need help with it" and "I understand

verbal. It's just reading." He also said that he had family

members "doing time right now," and that some of them were not

7 A-5494-14T1
"dealt with fairly by the court system and the prosecutor." Asked

to explain, he said: "Like my uncle. My uncle, he's locked up

right now. They gave him . . . a long charge to make because they

gave him a burglary charge" though "he wasn't really on the

premises. . . . I think it was a setup type thing."

The trial court invited "followup questions" regarding Juror

No. 893, and the prosecutor asked the juror whether his feeling

that his uncle "was charged unfairly with this burglary [would]

affect your ability to judge the police" witnesses or the

"witnesses from the Prosecutor's Office," and the juror indicated

it would not. The prosecutor also asked the juror whether he

would "be able to read for yourself" the written jury instructions

and understand them. The court interrupted and said it "would

verbally give those instructions," and the juror responded he

could "handle that."3

The prosecutor excused Juror No. 893 with his next peremptory

challenge, and defense counsel objected. At sidebar, the

prosecutor explained: "Judge, there's two reasons for [excusing]

him. His reading problem is number one." The prosecutor noted

that he "misinterpreted the first question about a police officer"

3
The transcript attributes the questions to "Unidentified," but
context supports their attributions to the prosecutor.

8 A-5494-14T1
on the jury questionnaire,4 and seemed not to comprehend a lot of

those written questions. The prosecutor stressed: "the jury

instructions . . . are given to jurors in writing, and if he can't

read the simple questions on the jury questionnaire form, and if

he can't read the simple questions on the jury questionnaire form,

how is he going to read the complicated legal instructions[?]"

The prosecutor added: "Number two, he said his uncle was unfairly

charged with burglary by the police." The trial court said: "All

right." The jury was seated without further peremptory challenges

by the prosecutor or further comment by defense counsel.

The United States and New Jersey Constitutions prohibit

prosecutors from exercising peremptory challenges against

potential jurors on account of their race or ethnicity. Thompson,

224 N.J. at 339-440 (citing Batson v. Kentucky, 476 U.S. 79, 89

(1986), and State v. Gilmore, 103 N.J. 508, 524-29 (1986)). In

Gilmore, our Supreme Court adopted its analysis from People v.

Wheeler, 583 P.2d 748 (1978). Gilmore, 103 N.J. at 530-39. As

modified in State v. Osorio, 199 N.J. 486 (2009), that analysis

provides for three steps. First:

step one requires that, as a threshold matter,
the party contesting the exercise of a

4
That question asked "whether you'd give greater or lesser weight
to the testimony of a police officer merely because of his or her
status as a police officer." The juror answered "Yes." When
asked to explain, he said: "by that I actually meant to say no."

9 A-5494-14T1
 peremptory challenge must make a prima facie
showing that the peremptory challenge was
exercised on the basis of race or ethnicity.
That burden is slight, as the challenger need
only tender sufficient proofs to raise an
inference of discrimination.

Second, if the challenger meets that burden,

step two is triggered, and the burden then
shifts to the party exercising the peremptory
challenge to prove a race- or ethnicity-
neutral basis supporting the peremptory
challenge. In gauging whether the party
exercising the peremptory challenge has acted
constitutionally, the trial court must
ascertain whether that party has presented a
reasoned, neutral basis for the challenge or
if the explanations tendered are pretext.

Third, if the trial court believes a reasoned, neutral basis

has been tendered

the third step is triggered, requiring that
the trial court weigh the proofs adduced in
step one against those presented in step two
and determine whether, by a preponderance of
the evidence, the party contesting the
exercise of a peremptory challenge has proven
that the contested peremptory challenge was
exercised on unconstitutionally impermissible
grounds of presumed group bias.

[Id. at 492-93.]

Here, the prosecutor immediately offered to state his

reasons, so the trial court did not have to rule on step one.5 In

5
"[T]he better practice is to allow the State to make a record of
its reasons for exercising its peremptory challenges, especially
where, as here, the prosecutor offers to do so". Thompson, 224
N.J. at 347.

10 A-5494-14T1
step two, it is undisputed that the prosecutor "prov[ided] a race-

or ethnicity-neutral basis supporting [each] peremptory challenge"

raised by defendant. Osorio, 199 N.J. at 492. However, defendant

contends the trial court failed to conduct the third step of the

analysis.

The discussion about Juror No. 197 and Juror No. 375 occurred

at the same sidebar. At the end of that sidebar, after hearing

the prosecutor's explanations for excusing both jurors, the trial

court stated "Okay," and resumed jury selection. At the sidebar

addressing Juror No. 893, after hearing the prosecutor's

explanation for excusing him, the court stated "All right," and

resumed jury selection. It is a reasonable conclusion from the

court's statements that the court credited the prosecutor's

explanations, found each was "a reasoned, neutral basis for the

challenge," and that defendant had failed to "prove[] that the

contested peremptory challenge was exercised on unconstitutionally

impermissible grounds of presumed group bias." Id. at 492-93.

The record strongly supports this conclusion. First, "the

proofs adduced in step one" by defendant were weak. Id. at 429.

Defense counsel merely noted Juror No. 197 was African-American

and "just ask[ed] for the purposes of the record if there was any

other reason" for excusing him.

11 A-5494-14T1
 Defense counsel also proffered: "there was another juror

struck that was African-American. The only two that were on the

pool." However, the prosecutor referred to his notes and responded

that, before Juror No. 197, he had exercised six peremptory

challenges against "five white females [and] one Hispanic female."

Defense counsel said: "Okay, I thought she was," and reference was

made to "Juror number six," referring to a Hispanic-American female

who was sitting in the sixth seat in the jury box when the

prosecutor excused her earlier.6 As Juror No. 893 was also

African-American and remained in the pool, it appears defense

counsel was mistaken in asserting that the prosecutor had excused

another African-American potential juror before Juror No. 197.

Defense counsel proffered no other evidence concerning the

prosecutor's peremptory challenges.

The first-step standard "can be satisfied in various ways,"

Osorio, 199 N.J. at 504, including:

(1) that the prosecutor struck most or all of
the members of the identified group from the
venire; (2) that the prosecutor used a
disproportionate number of his or her
peremptories against the group; (3) that the
prosecutor failed to ask or propose questions
to the challenged jurors; (4) that other than
their race, the challenged jurors are as

6
That potential juror, Juror No. 883 (sometimes transcribed as
838), testified she "would need fingerprints or very factual
information" to convict. No objection has been made to the
prosecutor excusing that potential juror.

12 A-5494-14T1
 heterogeneous as the community as a whole; and
(5) that the challenged jurors, unlike the
victims, are the same race as defendant.

[State v. Watkins, 114 N.J. 259, 266 (1989)
(citing Gilmore, 103 N.J. at 536 (citing
Wheeler, 583 P.2d at 764).]

Based on defense counsel's proffer and the striking of Juror

No. 197 and Juror No. 893, it can be inferred that the prosecutor

excused from the venire the only two African-Americans, who were

of the same race as defendant. However, none of the other factors

were present. The prosecutor used most of his peremptory

challenges (five of nine) on Caucasians, two on Hispanics, and two

on African-Americans. Cf. Thompson, 224 N.J. at 346 ("the

prosecutor exercised seven of the nine peremptory challenges to

strike African Americans"); Osorio, 199 N.J. at 507-08 ("the

prosecution's first six peremptory strikes were of members of a

minority group"); Gilmore, 103 N.J. at 540 (citing the prosecutor's

striking of all seven black jurors in its eleven strikes).

Moreover, the prosecutor proposed questions and the trial

court conducted the questioning of the potential jurors.7 When

the court invited follow-up questions regarding Juror No. 893, the

prosecutor questioned him about his reading troubles and feelings

7
Before jury selection, the trial court told counsel that they
could follow up with "one or two questions," but that the court
did not "want a long interrogation."

13 A-5494-14T1
against the prosecution. The jurors at issue were not

heterogeneous, but included a Hispanic-American who was not of the

same race as defendant, as well as "both men and women . . . of a

variety of . . . occupations, and social or economic conditions."

State v. Pruitt, 438 N.J. Super. 337, 340 n.2 (App. Div. 2014)

(quoting Wheeler, 583 P.2d at 764). Finally, like defendant, the

victim was also African-American, as was Lisa. Cf. Gilmore, 103

N.J. at 536 (stressing it is "'especially'" important if the victim

is of the same race as the non-excluded jurors) (citation omitted).

Second, the reasons offered by the prosecutor were strong and

undisputed. Defense counsel did not dispute that Juror No. 197

had given the prosecutor a weird smile and then drew his finger

across his neck in a slashing motion before questioning began.

Cf. Osorio, 199 N.J. at 496-97 (trial counsel contested whether

potential jurors high-fived each other). It was also undisputed

that such a throat-slashing gesture was a race-neutral and valid

reason for striking the juror. State v. Clark, 324 N.J. Super.

558, 571 (App. Div. 1999) (upholding the strike of a potential

juror who "refused to look at" the prosecutor); see Wheeler, 583

P.2d at 760-61.

The prosecutor's reasons for striking Juror No. 375 were

supported by the record, race-neutral, and valid. Her testimony

that she would need scientific or physical evidence to convict

14 A-5494-14T1
raised a valid concern and was relevant to this case, which lacked

any scientific or physical evidence connecting defendant to the

crime, and instead was based on eyewitness testimony and testimony

about defendant's admissions. See State v. McDougald, 120 N.J.

523, 556 (1990) (upholding strikes of potential jurors who

"express[ed] some hesitancy or reluctance to" impose the death

penalty).

The prosecutor's reason for striking Juror No. 893 was also

supported by the record, race-neutral, and valid. His trouble

with reading was plainly relevant to his ability to serve as a

juror. N.J.S.A. 2B:20-1 (requiring jurors to "be able to read and

understand the English language"). He gave no reason to conclude

he would be able to read the written jury instructions required

to be given the jury in criminal cases. R. 1:8-8(b)(2). His

belief his incarcerated uncle had been treated unfairly by the

prosecution raised the concern whether he would decide based on

the evidence in this case or bias against the prosecution. See

State v. Lewis, 389 N.J. Super. 409, 420 (App. Div. 2007)

(upholding the strike of a potential juror whose husband had

received a sentence she "believed was excessive").

"In order to rebut the defendant's prima facie case, the

prosecution's justifications of its peremptory challenges need not

rise to the level justifying challenges for cause." Gilmore, 103

15 A-5494-14T1
N.J. at 538. "'[T]here are any number of bases on which a party

may believe, not unreasonably, that a prospective juror may have

some slight bias that would not support a challenge for cause but

that would make excusing him or her desirable.'" Ibid. (citation

omitted).

Here, the prosecutor's reasons were strong and reached or

approached the level justifying a challenge for cause. Moreover,

they were all "'reasonably relevant to the particular case on

trial or its parties or witnesses.'" Ibid. (citation omitted).

The evidence supported that the prosecutor's explanations were

"genuine and reasonable grounds for believing that potential

jurors might have situation-specific biases that would make

excusing them reasonable and desirable," and there was no

indication they were "'sham excuses belatedly contrived to avoid

admitting acts of group discrimination.'" Osorio, 199 N.J. at

504-05 (quoting Gilmore, 103 N.J. at 537-38).

Third, the strong reasons offered by the prosecutor in step

two outweighed the weak proffer by the defendant in step one.

Defendant does not contend the trial court should have found it

inappropriate to strike Juror No. 197 after he made the slashing

gesture across his throat, or to strike Juror No. 893 because he

could not read the written jury instructions and believed the

prosecutor's office had unfairly imprisoned his uncle. The valid

16 A-5494-14T1
reasons for striking those two African-American potential jurors

defeated defendant's step-one proffer that the prosecutor has

stricken the two African-Americans in the jury pool.

Fourth, defendant did not contest the credibility, validity,

or adequacy of the prosecutor's reasons. After the prosecutor

stated his reasons, defendant made no proffer and voiced no

complaint, either during jury selection, at the conclusion of jury

selection, or in a motion during or after trial. Nor did defendant

ever request any of the various forms of relief available. See

State v. Andrews, 216 N.J. 271, 293 (2013).

On appeal, defendant contends that the trial court should

have invalidated the striking of the Hispanic-American prospective

juror. He argues the court should have found the prosecutor's

reasons were invalid because Juror No. 375 said "Yes" when asked:

"Could you follow my instructions as to the law in the case and

apply that law to the facts that you find?" However, she already

testified that she would not find facts based solely on testimony,

that there would have to be scientific evidence, and that she did

not know whether she could convict without physical evidence. Her

answer to a question that did not mention testimonial, scientific,

or physical evidence did not contradict let alone negate her

earlier testimony. Even if she had contradicted her earlier

testimony, the prosecutor would not have been required to credit

17 A-5494-14T1
such a denial, but could strike her rather than take the chance

she would not fairly consider his testimonial case.

Defendant also argues on appeal that there was no evidence

"whether the State has applied the proffered reasons 'even-

handedly to all prospective jurors'; the 'overall pattern' of the

use of peremptory challenges; and 'the composition of the jury

ultimately selected to try the case.'" Thompson, 224 N.J. at 343

(quoting Osorio, 199 N.J. at 506). However, our Supreme Court in

Thompson made clear that "[t]his analysis presumes that a defendant

will present information beyond the racial makeup of the excused

jurors." Id. at 348. "Nothing in Gilmore or Osorio placed the

onus on the court to comb the record for instances where a juror

selected provided answers similar to the reasons the State

proffered for its use of a peremptory challenge; it is the

defendant's obligation to do so." Id. at 349. Here, as in

Thompson, the "failure of defendant to counter any of the

prosecutor's suggestions or raise an 'uneven application' argument

made it impossible for the court to 'include in its findings any

of the third-step considerations' outlined in Osorio." Id. at

350; see Pruitt, 438 N.J. Super. at 344.

Even now, defendant does not point to any juror who made a

similar unsettling gesture as Juror No. 197, had difficulty reading

and felt the prosecutor's office was unfair like Juror No. 893,

18 A-5494-14T1
or demanded scientific or physical evidence like Juror No. 375,

and yet was seated. Our review of the transcripts reveals no such

jurors. All potential jurors who initially expressed some concern

about convicting based on only testimonial evidence either were

excused, or in subsequent questioning expressly testified they

could do so.8

In sum, there was ample evidence that the prosecutor had

offered a credible, "reasoned, neutral basis for [each]

challenge," and that defendant had failed to "prove[] that the

contested peremptory challenge was exercised on unconstitutionally

impermissible grounds of presumed group bias." Osorio, 199 N.J.

at 492-93. That strong evidence rebutted defendant's weak prima

facie offering, and defendant offered the trial court no evidence,

argument, or complaint to the contrary. The trial court's

statements "Okay" and "All right" after the prosecutor gave his

reasons, and its resumption of jury selection, showed the court

credited the prosecutor's non-discriminatory reasons and rejected

any claim of discrimination. "'[I]f . . . the trial court believes

the prosecutor's nonracial justification, and that finding is not

clearly erroneous, that is the end of the matter.'" Thompson, 224

N.J. at 340 (citation omitted).

8
One juror clarified that her concern was about convicting for
murder if no body had been found, which was not the case here.

19 A-5494-14T1
 Nonetheless, the trial court's statements "Okay" and "All

right" were not what we or the Supreme Court had in mind when we

described the third-step findings. "[T]he trial court must make

specific findings with respect to the . . . proffered reasons for

exercising any disputed challenges. . . . Moreover, it is

essential that separate findings be made with respect to each

disputed challenge." Osorio, 199 N.J. at 506 (quoting State v.

Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998)). However,

for the reasons set forth above, defendant was not prejudiced by

the lack of more specific findings.

As there was no evidence that the prosecution's strikes of

the three potential jurors were improper, there was no evidence

he was denied "the right to trial by an impartial jury drawn from

representative cross-section of the community." Gilmore, 103 N.J.

at 543. A denial of the cross-section requirement "may not be

treated as harmless error." Id. at 544. However, the lack of

more detailed findings, without more, is not such a denial, and

"a cross-section violation should not be assumed." State v.

Timmendequas, 161 N.J. 515, 665 n.8 (1999). "Although a violation

of the cross-section requirement is not subject to a harmless

error analysis, other constitutional violations with the potential

to lead to a cross-section violation often will be" harmless.

Ibid. Here, the lack of specific findings is harmless.

20 A-5494-14T1
"Therefore, reversal and remand for a new trial [i]s not

appropriate." See Thompson, 224 N.J. at 337-38, 350 (reversing

our ruling that a trial court failed to conduct a third-step

analysis).

III.

Defendant makes other claims of trial error, but he did not

object to those alleged errors, and thus he must show plain error.

Under the plain error standard, "defendant has the burden to show

that there is an error, that the error is 'clear' or 'obvious,'

and that the error has affected 'substantial rights.'" State v.

Chew, 150 N.J. 30, 82 (1997) (quoting, and ruling "[o]ur law is

the same" as, United States v. Olano, 507 U.S. 725, 734 (1993)).

An error is not clear or obvious "unless the error is clear under

current law" at the time of appellate consideration. Olano, 507

U.S. at 734; see Henderson v. United States, 568 U.S. 266, 279

(2013); Johnson v. United States, 520 U.S. 461, 468 (1997). To

show an effect on substantial rights, defendant has the burden of

proving the error was "clearly capable of producing an unjust

result." R. 2:10-2.

A.

Defendant claims on appeal that the video recording of the

photo array procedure was not an identification under N.J.R.E.

803(a)(3), and thus was improperly admitted at trial.

21 A-5494-14T1
"[C]onsiderable latitude is afforded a trial court in determining

whether to admit evidence, and that determination will be reversed

only if it constitutes an abuse of discretion." State v.

Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). Moreover,

defendant did not object to the admission of the video at trial,

so he must show plain error.9

N.J.R.E. 803(a) provides that the hearsay rule does not

exclude "[a] statement previously made by a person who is a witness

at a trial" that "is a prior identification of a person made after

perceiving that person if made in circumstances precluding

unfairness or unreliability." N.J.R.E. 803(a), (a)(3). "Prior

identifications are admissible because, being made when the events

and sensory impressions are fresh in the mind of a witness, they

are likely to be correct." State v. Matlack, 49 N.J. 491, 498

(1967). If the person making the identification is a witness at

trial, that person's testimony, third-party testimony, and

exhibits recording the identification are all admissible. Id. at

9
Defendant did not raise N.J.R.E. 803(a)(3) at the pretrial Wade
hearing. See United States v. Wade, 388 U.S. 218 (1967). "A Wade
hearing is required to determine if the [police] identification
procedure was impermissibly suggestive and, if so, whether the
identification is reliable." State v. Micelli, 215 N.J. 284, 288
(2013). The motion judge rejected defendant's claim that the
detective was suggestive by putting defendant's photo off to the
side face up while Ruiz was looking at the next photo. Defendant
does not renew that Wade claim on appeal.

22 A-5494-14T1
499-500; see State v. Lazo, 209 N.J. 9, 25 (2012) (admitting a

composite sketch).

Defendant contends Ruiz did not make any identification on

the video. However, the video recorded Ruiz as looking at

defendant's photo and saying "[t]hat looks something like him,"

referring to the shooter. Ruiz repeatedly said "That looked like

him right there." He reiterated: "That look like him right there,

but he didn't have no Afro"; and that "look something like him

because his eyes."

"Testimony that a defendant looks like or resembles the person

observed by the witness, or is of the same size or general

appearance, or has physical features fairly close to the accused

is competent and may be sufficient when considered with the other

evidence." State v. Lutz, 165 N.J. Super. 278, 291 (App. Div.

1979); accord State v. Swed, 255 N.J. Super. 228, 247 (App. Div.

1992). Here, there was other evidence, particularly Harris'

positive identification of defendant.

Defendant notes the detectives marked Ruiz as having made "no

identification," but they also marked that Ruiz had said

defendant's photo resembled the shooter. In any event, "[t]he

prior identification need not be unequivocal to be admissible[.]"

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment

3 on N.J.R.E. 803(a) at 846 (2018) (citing Lutz and Swed); see

23 A-5494-14T1
Swed, 255 N.J. Super. at 247 (admitting a "somewhat tenuous"

identification). In Lutz, the witness "could not definitely

identify any of the photographs" in the photo array. 165 N.J.

Super. at 287. We reversed a ruling that "no identification" had

been made, and we ruled the witness's

testimony was not so utterly lacking in
probative value as to require the trial judge
to reject it as a matter of law. It is true
that the witness was uncertain at the
photographic displays and could not make an
unequivocal identification of defendant. But
the lack of a "positive" identification did
not invalidate her testimony in its entirety.
An identification can be absolute or qualified
. . . . The lack of certainty on the part of
the identifying witness, or the indefiniteness
of the identification, goes to the weight to
be given the testimony and to its credibility.
These are matters for the jury to resolve, not
the judge.

[Id. at 290 (citations omitted).]

Defendant also cites alleged denials by Ruiz on the video

which appears in the transcript of the pretrial Wade hearing but

not of the trial. Even assuming we can consider the earlier

transcript, we reject defendant's claim of trial error. He cites

Ruiz's comment on the video that even though defendant's face

resembled the shooter's face, "he didn't have no Afro, so that

wasn't him." However, Ruiz's observation of the facial resemblance

remained relevant and admissible even if he could not positively

identify defendant because the haircut differed. Defendant also

24 A-5494-14T1
cites Ruiz's comment: "That ain't him. He had dark tone, none of

them have dark tone." It is unclear from either transcript which

photo(s) Ruiz was referencing, and defendant failed to supply us

with the video. In any event, the resemblance in facial features

was still relevant and admissible.

Ruiz testified that the photo of defendant with his hair in

an Afro in the photo array "looked close" and "look[ed] something

like him with an Afro, but he didn't have no Afro." Defendant had

the opportunity to cross-examine Ruiz regarding the prior

identification on the video. Its admission was not an abuse of

discretion, let alone plain error. "The worth thereof was for the

fact finder, not for the court," to determine. State v. Farrow,

61 N.J. 434, 452 (1972).

B.

Defendant argues on appeal that the prosecutor improperly

commented on Ruiz's prior identification in his closing argument.

"[W]hen counsel does not make a timely objection at trial, it is

a sign 'that defense counsel did not believe the remarks were

prejudicial.'" State v. Pressley, 232 N.J. 587, 593-94 (2018)

(citations omitted).

The prosecutor argued that when Ruiz was shown the photo

array,

25 A-5494-14T1
 he could not make a positive identification
of the shooter, but remember what he did on
photo number 3, of all of the photos that were
shown to him, eight different photos, he
stopped at number 3, and he basically said —
and you saw the video — nah, yeah, that's him,
no, that's not him, and he kind of waffled
back and forth, said he couldn't be for sure.

But what he did do, I suggest to you, same day
as the incident, is gave a partial
identification of the defendant in photo
number 3. . . .

And what he did was says [sic] that's the guy,
looks like him, he has the same eyes. Of all
the eight photographs, which one does he kind
of pick? He picks photo number 3, the
defendant.

Defendant now claims the phrases "partial identification" and

"kind of pick[ing]" defendant's photo misrepresented Ruiz's

testimony. However, those phrases, particularly in the context

of the prosecutor's entire argument, reflected and were

"reasonably related" to Ruiz's statements and actions on the video.

Id. at 593 (citation omitted). Moreover, the trial court

repeatedly instructed the jury that the "arguments, statements,

remarks, openings and summations of counsel are not evidence and

must not be treated as evidence," and that the jurors "must rely

solely on [their] understanding and recollection of the evidence."

"We presume the jury followed the court's instruction." State v.

Smith, 212 N.J. 365, 409 (2012)). Defendant fails to show plain

error, as he cannot show the prosecutor's argument was "'clearly

26 A-5494-14T1
and unmistakably improper' and 'so egregious' that it deprived

defendant of the 'right to have a jury fairly evaluate the merits

of his defense.'" Pressley, 232 N.J. at 593-94 (citation omitted).

IV.

Defendant must also show plain error regarding his two claims

of omissions from the trial court's final charge. At the charge

conference, defense counsel told the court she did not "have any

comments regarding the proposed charge," that the proposed

instructions she submitted "appear to be all covered" in the

court's proposed charge, and she "didn't have any changes."

Moreover, defendant did not object at the court's charge as

delivered.

Courts "review for plain error the trial court's obligation

to sua sponte deliver a jury instruction when a defendant does not

request it and fails to object at trial to its omission." State

v. Alexander, 233 N.J. 132, 141-42 (2018). Moreover,

"[d]efendant's failure to 'interpose a timely objection

constitutes strong evidence that the error belatedly raised here

was actually of no moment.'" State v. Tierney, 356 N.J. Super.

468, 481 (App. Div. 2003) (citation omitted). Where there is no

objection, "there is a presumption that the charge . . . was

unlikely to prejudice the defendant's case." State v. Singleton,

211 N.J. 157, 182 (2012).

27 A-5494-14T1
 A.

Defendant complains on appeal that the trial court did not

sua sponte give the Model Jury Charge (Criminal), "Testimony of a

Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006)

(Cooperating Charge). However, the Cooperating Charge explicitly

warns:

This charge should not be given except upon
the request of defense counsel. "While a
defendant is entitled to such a charge if
requested and a judge may give it on his own
motion if he thinks it advisable under the
circumstances, it is generally not wise to do
so absent a request, because of the possible
prejudice to the defendant." State v. Begyn,
34 N.J. 35, 54-56 (1961); State v. Gardner,
51 N.J. 444, 460-461 (1968). "Certainly, it
is not error, let alone plain error, for a
trial judge to fail to give this cautionary
comment where it has not been requested."
State v. Artis, 57 N.J. 24, 33 (1970).

[Id. at 1 n.1.]

Defendant points out that the cited cases concern situations

where the cooperating witnesses are accused of committing a crime

with the defendant, where the instruction might "convey[] to the

jury an impression that the court is suggesting his guilt solely

because the witnesses have admitted theirs and implicated him."

Begyn, 34 N.J. at 55. Nonetheless, defendant cannot show

prejudice.

28 A-5494-14T1
 Defendant argues the trial court should have sua sponte given

the portion of the charge stating:

The law requires that the testimony of such a
witness be given careful scrutiny. In
weighing his/her testimony, therefore, you may
consider whether he/she has a special interest
in the outcome of the case and whether his/her
testimony was influenced by the hope or
expectation of any favorable treatment or
reward, or by any feelings of revenge or
reprisal.

[Cooperating Charge at 2].

Defendant was not prejudiced because the trial court's final

charge allowed the jury to consider those factors. It instructed

the jury "to determine the credibility of the witness[], and in

determining whether a witness is worthy of belief," to consider

"the witness' interest in the outcome of the trial," the witness's

"possible bias, if any, in favor of the side for whom the witness

testified," and "any and all other matters in the evidence which

serve to support or discredit [the witness's] testimony." See

Artis, 57 N.J. at 33 (finding no plain error where "the court did

charge that, in determining the credibility of witnesses, the jury

should take into account the interest of a witness in the outcome

of the trial").

Even if "the trial court should have instructed the jury to

carefully scrutinize [the cooperating witness's] testimony," our

Supreme Court has found no plain error where "defense counsel

29 A-5494-14T1
thoroughly cross-examined [the witness] to challenge his

credibility and [his] lack of credibility was a major theme in

closing arguments," and "the trial court gave the standard charge

on credibility." State v. Adams, 194 N.J. 186, 208-09 (2008).

Given such extensive impeachment, "[i]t was obvious to any juror

that [the cooperating witness] was a witness whose testimony called

for careful scrutiny. The absence of the benefit to defendant of

the court's imprimatur on his argument through the accomplice-

credibility instruction was not clearly capable of producing an

unjust result." State v. Harris, 156 N.J. 122, 182 (1998).

Defense counsel repeatedly attacked the testimony of the

cooperating witness, Alford. She cross-examined him thoroughly

on his criminal history, his pending charges, the benefits of

cooperating, and his motives for testifying. In closing, she

pointed out "his endless rap sheet," "his steal of a deal of five

years . . . based on his cooperating agreement instead of 20 years

that he was facing," and his knowledge that he could "get bigger

points" for implicating defendant for "bigger crimes like murder."

She argued Alford took what defendant was alleged to have done and

lied that he had confessed to doing it. She told the jurors she

was "fully confident that you do not need me to" talk further

about that "quote/unquote 'witness.'" Moreover, there was other

eyewitness testimony that defendant committed the shooting. Thus,

30 A-5494-14T1
any error was not "sufficiently prejudicial to require a reversal."

Begyn, 34 N.J. at 56.

B.

Defendant argues that in light of his oral statements to

Alford, the trial court sua sponte should have given the

instructions described in [1] State v. Kociolek, 23 N.J. 400

(1957), and [2] State v. Hampton, 61 N.J. 250 (1972), respectively:

[1] In considering whether or not an oral
statement was actually made by the defendant,
and, if made, whether it is credible, you
should receive, weigh and consider this
evidence with caution based on the generally
recognized risk of misunderstanding by the
hearer, or the ability of the hearer to recall
accurately the words used by the
defendant. . . . [2] If, after consideration
of all these factors, you determine that the
statement was not actually made, or that the
statement is not credible, then you must
disregard the statement completely.

[Model Jury Charge (Criminal), "Statements of
Defendant," 1-2 (rev. June 14, 2010)
(numeration added).]

However, there was "no plain error in the omission of Hampton

and Kociolek charges," because "the jury was made well aware of

the questions surrounding the reliability of defendant's alleged

statements to" Alford by defense counsel's cross-examination and

closing, and received the trial court's "detailed credibility

instruction that sufficiently guided the jury in assessing

[Alford's] testimony." State v. Feaster, 156 N.J. 1, 72-73 (1998).

31 A-5494-14T1
Indeed, there is "no reported case in which a failure to include

a Kociolek charge has been regarded as plain error." State v.

Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997). Moreover, a

Hampton instruction is designed to address "police interrogation"

and "is not required when a defendant has allegedly made a

voluntary inculpatory statement to a non-police witness without

being subjected to any form of physical or psychological pressure."

State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div. 1997); see

State v. Wilson, 335 N.J. Super. 359, 367 (App. Div. 1999). Here,

the absence of those instructions "was not clearly capable of

producing an unjust result." State v. Harris, 156 N.J. 122, 183

(1998).

V.

Lastly, defendant challenges his sentence. "Appellate review

of sentencing is deferential, and appellate courts are cautioned

not to substitute their judgment for those of our sentencing

courts." State v. Case, 220 N.J. 49, 65 (2014) (citation omitted).

A sentence must be affirmed unless: "(1) the trial court failed

to follow the sentencing guidelines, (2) the aggravating and

mitigating factors found by the trial court are not supported by

the record, or (3) application of the guidelines renders a specific

sentence clearly unreasonable." State v. Carey, 168 N.J. 413, 430

(2001). None of those failings occurred here.

32 A-5494-14T1
 The trial court sentenced defendant for second-degree

manslaughter to an extended-term sentence of fourteen years in

prison with an 85% period of parole ineligibility under the No

Early Release Act, N.J.S.A. 2C:43-7.2. The court merged into that

conviction defendant's conviction for second-degree possession of

a firearm for an unlawful purpose. For second-degree unlawful

possession of a handgun without a permit, the court imposed a

consecutive sentence of six years in prison with a three-year

period of parole ineligibility. Both sentences were consecutive

to defendant's four years in prison for violation of probation.

Defendant argues his extended-term sentence was excessive.

The trial court imposed the extended-term sentence because

defendant was a persistent offender under N.J.S.A. 2C:44-3(a), as

he had "been previously convicted on at least two separate

occasions of two crimes, committed at different times." Before

his November 2011 manslaughter offense, he had been convicted of

a January 2011 third-degree aggravated assault involving

significant bodily injury against Simpson under Indictment No. 11-

06-1382.10 Defendant also had been convicted in Georgia of a 2001

theft by receiving stolen property offense, which defense counsel

conceded was the equivalent of an indictable offense. Defendant

10
Defendant included this indictment in his amended notice of
appeal, but makes no belated challenge to that conviction.

33 A-5494-14T1
did not dispute his eligibility for an extended term of up to

twenty years in prison.

Defendant also had been convicted of disorderly-persons

simple assault in April 2011. He violated the probation he

received for his aggravated assault against Simpson by fatally

shooting Simpson. The trial court found three aggravating factors

and no mitigating factors. The court gave heavy weight to

aggravating factors three and nine and moderate weight to

aggravating factor six. See N.J.S.A. 2C:44-1(a)(3), (6), (9).

Under these circumstances, defendant fails to show the fourteen-

year extended-term sentence was an abuse of discretion.

Defendant contends the trial court abused its discretion in

making his unlawful possession sentence consecutive to his

manslaughter sentence. However, the court made clear it was guided

by the factors in State v. Yarbough, 100 N.J. 627 (1985). The

court noted "there can be no free crimes in a system for which the

punishment shall fit the crime." Id. at 643. The court found two

other Yarbough factors favored a consecutive sentence: "the crimes

and their objectives were [not] predominantly independent of each

other," and "the crimes were committed at different times or

separate places, rather than being committed so closely in time

and place as to indicate a single period of aberrant behavior."

Id. at 644. The court found defendant committed the crimes at

34 A-5494-14T1
different times and places, because he possessed the gun without

a permit "before the [manslaughter] offense" as he came from his

apartment with the gun, and he possessed the gun without a permit

after the manslaughter offense because he "fled with the weapon."

The court thus found defendant's possession of the gun without a

permit was "a separate offense." The court "weigh[ed] the Yarbough

factors" and made the unlawful possession sentence consecutive.

The trial court's findings were supported by the evidence,

particularly defendant's statements to Alford that he took the gun

to Chicago when he fled. Moreover, as Judge (later Justice) Long

stated, "[i]t is well-settled that [unlawful possession of a

handgun without a permit] is an offense separate and apart from"

a substantive offense committed with the gun. State v. Cooper,

211 N.J. Super. 1, 22 (App. Div. 1986).11 Thus, the court did not

violate "the criteria for imposing consecutive sentences

enunciated in State v. Yarbough" in imposing a consecutive sentence

11
Our Supreme Court has relied on Cooper to hold that unlawful
possession of a handgun under N.J.S.A. 2C:39-5(b) does not merge
into possession of a firearm for an unlawful purpose under N.J.S.A.
2C:39-4(a). State v. O'Neill, 193 N.J. 148, 163 n.8 (2007) (citing
Cooper, 211 N.J. Super. at 22-23); see State v. Garcia, 195 N.J.
192, 200 n.4 (2008). Similarly, "[b]ecause the gravamen of
unlawful possession of a handgun is possessing it without a permit,
it does not merge with a conviction for a substantive offense
committed with the weapon." State v. DeLuca, 325 N.J. Super. 376,
392-93 (App. Div. 1999), aff'd o.b., modified on other grounds,
168 N.J. 626, 631 (2001).

35 A-5494-14T1
for unlawful possession of a handgun without a permit. State v.

Lane, 279 N.J. Super. 209, 222 (App. Div. 1995).

We note State v. Copling, 326 N.J. Super. 417 (App. Div.

1999), held that a "conviction for unlawful possession must be

served concurrently to the conviction for murder." Id. at 442.

Copling ruled the sentencing court could not justify a consecutive

sentence based on the different "'objectives and purposes'" of the

unlawful possession of a handgun statute and the murder statute.

Id. at 441. Copling reasoned "the objective of each [statute] is

similar," and "the victims sought to be protected by the two

statutes are the same." Id. at 441-42.

Copling is distinguishable because the trial court here did

not rely on the different objectives and purposes of N.J.S.A.

2C:39-5(b) and the manslaughter statute, and properly found

Yarbough factors supporting a consecutive sentence. In any event,

Copling's reasoning is unpersuasive. The offense of unlawful

possession of a handgun without a permit is part of New Jersey's

gun control laws designed to regulate the possession of handguns

"without regard to the individual's intent or purpose in possessing

them," and regardless of whether the gun is used to commit another

crime. State v. Harmon, 104 N.J. 189, 197 (1986). Those

objectives and purposes are different than the purpose of the

36 A-5494-14T1
manslaughter statute to deter and punish unlawful homicides

against individual victims regardless of the fatal means used.

Defendant notes the crimes did not involve "separate acts of

violence or threats of violence," or "multiple victims." Yarbough,

100 N.J. at 644. However, "a sentencing court may impose

consecutive sentences even though a majority of the Yarbough

factors support concurrent sentences." Carey, 168 N.J. at 427-28

(citing State v. Perry, 124 N.J. 128, 177 (1991) (finding

consecutive sentences proper even though four of Yarbough's five

factors favored concurrent sentences)). Thus, "[w]e cannot

conclude that the trial court abused its discretion by imposing

consecutive sentences." State v. Spivey, 179 N.J. 229, 245 (2004).

Affirmed.

37 A-5494-14T1