STATE OF NEW JERSEY VS. GREGORY OLIVER (15-04-0352, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-5140-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY OLIVER,

Defendant-Appellant.
____________________________

Submitted October 28, 2019 – Decided February 18, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 15-04-0352.

Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 After trial with codefendants, Francis Brace and Jahmad Green, defendant

Gregory Oliver appeals from his conviction by jury and sentence for first-degree

aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-4(a)(1), as a

lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2),

N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(counts six and twelve); second-degree aggravated assault of Alaysia Chambers,

N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted

murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-3(d) (count

eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b) (count seven). Both victims were shot in an early-morning incident on

August 31, 2014. The State alleged defendant and his codefendants shot at a

gold Ford Taurus from which shots were also fired. Burroughs was shot in the

head and pronounced dead on the sidewalk where he fell. Chambers, who was

seated in Brace's BMW in which he had earlier picked her up, was also shot in

the head; she survived her wound. Neither of the victims were the intended

targets of the shootings.

On appeal, defendant argues:

POINT I

A-5140-16T1
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THE TRIAL [JUDGE] ERRED IN ADMITTING INTO
EVIDENCE THE PRIOR RECORDED
STATEMENTS OF A TESTIFYING WITNESS AS
SUBSTANTIVE EVIDENCE PURSUANT TO
N.J.R.E. 803(A)(1) AND N.J.R.E. 803 (C)(5).

POINT II

THE [TRIAL JUDGE] VIOLATED DEFENDANT'S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL
BY ADMITTING "EXPERT" BALLISTICS
TESTIMONY THAT IS CONTRARY TO THE
CURRENT STATE OF THE SCIENCE AND
FEDERAL LAW AND IS THEREFORE
UNRELIABLE AND INADMISSIBLE UNDER
N.J.R.E. 702.

A. SUBJECTIVE BALLISTICS
TOOLMARK EVIDENCE IS
INADMISSIBLE UNDER N.J.R.E. 702
AS IT IS UNRELIABLE.

B. ALTERNATIVELY, THIS COURT
SHOULD REMAND THE MATTER FOR
A RULE 104 HEARING AS TO THE
SCIENTIFIC RELIABILITY OF THIS
EVIDENCE, IF ANY.

POINT III

DEFENDANT WAS DENIED THE RIGHT TO DUE
PROCESS AND A FAIR TRIAL WHEN THE STATE
PUBLISHED TO THE JURY A GRUESOME
PHOTOGRAPH OF THE HOMICIDE VICTIM,
PARTICULARLY AS THAT EXHIBIT WAS LATER
RULED INADMISSIBLE UNDER N.J.R.E. 403.

POINT IV

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 THE SENTENCING COURT APPLIED
INAPPROPRIATE AGGRAVATING FACTORS
AND MISAPPLIED STATE V. YARBOUGH,1
RESULTING IN AN AGGREGATE TWENTY-
SEVEN[-]YEAR TERM, SUBJECT TO AN EIGHTY-
FIVE PERCENT PAROLE DISQUALIFIER, THAT IS
MANIFESTLY EXCESSIVE.

For the reasons we now discuss, we affirm.

I.

The statements that defendant claims were wrongly admitted as

substantive evidence were taken by Paterson police detectives who twice

interviewed Jocelyn Suggs. Video recordings of both interviews—the first, four

days after the shooting and the second on December 3, 2014—were admitted

into evidence and played for the jury. In the statements, Suggs explained to the

detectives that a large crowd of people had congregated in the area around a

parked BMW in which Chambers sat prior to the shooting. Suggs was warned

there was going to be a shooting. She placed Brace at the scene, at the side of

the BMW. Someone retrieved a gun from the BMW's interior. The first shots

were fired from the gold Taurus as it drove by the group gathered near the BMW.

She observed Brace return fire. Suggs told detectives an individual named

1
100 N.J. 627 (1985).
A-5140-16T1
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Jahmad was at the scene, and she heard him state that he had a gun. Suggs also

told detectives that a week or two after the shooting, she heard defendant state

that he "shot him in the eyeball."

Further to the State's request to introduce the statements, the trial judge

conducted a hearing to determine whether the statements were admissible under

N.J.R.E. 803(a)(1). State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987),

aff'd, 121 N.J. 1 (1990); accord State v. Brown, 138 N.J. 481, 539 (1994).

N.J.R.E. 803(a)(1) provides a hearsay exception for prior inconsistent

statements of a witness that would have been admissible if made by the declarant

while testifying. A statement is deemed inconsistent if the witness feigns a lack

of recollection or recants his or her testimony. State v. Savage, 172 N.J. 374,

404-05 (2002). If the statement is offered by the party calling the witness, it is

admissible as substantive evidence if it is "contained in a sound recording or in

a writing made or signed by the declarant-witness in circumstances establishing

its reliability[.]" N.J.R.E. 803(a)(1). The party offering the statement has the

burden of proving the reliability of the prior statement by a preponderance of

the evidence. Gross, 121 N.J. at 7, 15-17. The trial judge's role "is not to

determine the credibility of the out-of-court statement. Rather it is for the judge

to determine from the proofs whether the prior statement was made or signed

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under circumstances establishing sufficient reliability that the factfinder may

fairly consider it as substantive evidence." Gross, 216 N.J. Super. at 110.

Defendant advances several reasons the judge erred in finding the

statements reliable: Suggs was in custody when she provided her statements to

police because—during the first interview—she was told she was not free to

leave until she told detectives what they wanted to hear, and because detectives

arrived at her place of employment and told her they had a warrant for her arrest

when they picked her up prior to the second interview; Suggs was pressured and

coerced by police to give the statements; Suggs testified she was chronically

intoxicated, and high on MDMA and marijuana, when both interviews took

place; and there was no evidence corroborating Suggs's account of defendant's

involvement in the shooting, emphasizing Suggs was the sole witness who

testified to his alleged comment about shooting the victim in the eye, and no

witnesses observed defendant firing a weapon, nor did any forensic evidence tie

him to any of the recovered weapons.

We review the evidentiary rulings of the trial court under the abuse of

discretion standard. State v. Harris, 209 N.J. 431, 439 (2012); State v. Merritt,

247 N.J. Super. 425, 434 (App. Div. 1991) (applying abuse of discretion

standard to admission of prior inconsistent statements). We also defer to the

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factual findings of the trial judge made after an evidentiary hearing, if those

findings are supported by sufficient credible evidence in the record. State v.

Robinson, 200 N.J. 1, 15 (2009). We further extend that deference to the trial

court's "factual findings based on a video recording" in order to ensure trial

courts that "have ongoing experience and expertise in fulfilling the role of

factfinder," remain "'the finder of the facts,' in the absence of clear error ." State

v. S.S., 229 N.J. 360, 380-81 (2017) (quoting Fed. R. Civ. P. 52(a) advisory

committee's note to 1985 amendment).

The judge heard testimony from Suggs and one of the detectives who

conducted both interviews, and he viewed the video statements. Suggs testified:

she could not remember anything about the events of August 31, 2014, besides

there was a shooting; she felt pressured when she provided statements to the

police; her prior statements were not accurate; and she wished to recant both

statements. Suggs also testified she routinely drank and ingested "mollies" and

"weed" at the time she provided the statements to police, and that she was high

during both interviews. Finally, Suggs said she was not aware that either of her

statements were being recorded.

The trial judge considered Suggs's contentions that she could not recall

making the statements, the statements were not truthful, and she was under the

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influence, but found her "lapse of memory" was feigned.2 Thus, the judge ruled

the videotaped statements were inconsistent, Savage, 172 N.J. at 404-05,

meeting the threshold requirements of N.J.R.E. 803(a)(1).

The trial judge, in determining whether the statements were given "in

circumstances establishing its reliability," N.J.R.E. 803(a)(1)(A), reviewed each

of the fifteen factors enumerated in Gross, 216 N.J. Super. at 109-10:

(1) the declarant's connection to and interest in the
matter reported in the out-of-court statement, (2) the
person or persons to whom the statement was given, (3)
the place and occasion for giving the statement, (4)
whether the declarant was then in custody or otherwise
the target of investigation, (5) the physical and mental
condition of the declarant at the time, (6) the presence
or absence of other persons, (7) whether the declarant
incriminated himself or sought to exculpate himself by
his statement, (8) the extent to which the writing is in
the declarant's hand, (9) the presence or absence, and
the nature of, any interrogation, (10) whether the
offered sound recording or writing contains the
entirety, or only a portion or a summary, of the
communication, (11) the presence or absence of any
motive to fabricate, (12) the presence or absence of any
express or implicit pressures, inducements or coercion
for the making of the statement, (13) whether the
anticipated use of the statement was apparent or made
known to the declarant, (14) the inherent believability
or lack of believability of the statement and (15) the
presence or absence of corroborating evidence.

2
Besides the judge's independent finding, defendant's counsel conceded "[i]t
does appear [Suggs] was feigning."
A-5140-16T1
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 The judge found: as to factor one, Suggs was present at the scene of the

shooting, "recognized and in court . . . identified the three defendants," and knew

Chambers; as to factors two, three and six, the statements were given to two

detectives in interview rooms "with regard to an investigation relating to the

death of . . . Burroughs and the attempted murder of . . . Chambers[.]" The judge

found those factors supported the statements' reliability.

The judge carefully considered whether Suggs was in custody or a target

of the investigation, the fourth factor, noting the warrant for her arrest stemming

from unpaid fines. The judge found Suggs was never handcuffed, Suggs "clearly

indicated she didn't feel that she was a target or a suspect," and she was released

after the statements. The judge observed Suggs's demeanor and responses to

questioning during the interview and found, although she perceived she was in

a "pressured environment," the totality of the circumstances "weighed in favor

of . . . reliability" as to this factor.

The judge's observations of the video also informed his decision that,

contrary to Suggs's testimony that she was under the influence during the

statements, "[s]he appeared to be very attentive[,] . . . drew diagrams[,] [and

m]ade appropriate corrections[.]" Her description of events and even her facial

gestures also led the judge to determine that Suggs "had a good grasp of what [

A-5140-16T1
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was] going on" during the interviews. He determined factor five favored the

statements' reliability.

The judge did not find factor seven applicable because Suggs neither

incriminated nor sought to exculpate herself. He also found, in connection with

the eighth and tenth factors, although the statements were not written in her

hand, Suggs was clearly depicted on the videos, and except for a ten or twelve

minute gap "where it was very hard, difficult for the [judge] to figure out what

was being said," 3 the balance of the sound recording was admissible.

The judge devoted considerable attention to factor nine, ultimately finding

the factor favored a finding of reliability. The judge found Suggs clearly did

not want to be interviewed by the detectives. Reiterating that his review of the

videos revealed

the nature of these interviews was tense, was pressured,
but did not amount to a full[-]fledged, what I consider
to be an interrogation that may have caused the will of
this witness to be broken to a point where she was
giving information or providing information to the
detectives under stress or under such a duress that I
would call it . . . an involuntary statement.

As to the related factor twelve, the judge repeated his prior finding that

the circumstances were pressured. He also considered defendant's contention

3
The judge ruled that portion of the statement was inadmissible.
A-5140-16T1
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that police offered Suggs $20 if she did not sleep well after telling detectives the

truth. During an exchange with one of the detectives, after Suggs told the

detective she had not been sleeping well, the detective told her: "And that's what

I'm trying to tell you, if you tell us exactly what happened, I guarantee you

tonight you['ll] sleep. If not, I'll give you [$]20. She'll probably lie to me, like[,

']I didn't sleep well.['] No, but I'm serious. You'll sleep well." That record

evidences that the detective did not offer money in exchange for a statement but

offered a bet—rhetorically, or in jest—that she would feel better if she aided

their investigation by disclosing what she witnessed.

The judge also considered defendant's contention, mirroring his present

argument, that the detectives told Suggs "she was not free to leave" and "[h]er

ability to leave was contingent on telling the police what they wanted to hear."

In finding Suggs's statements were voluntary, the judge determined

even [if] the detective's statement may be characterized
as that she was not permitted to go home unless she
provided statements that they were looking for, that
statement, if we follow the detective's statement, was
you can go home and we can all go home.

If we take those statements together, it does not
imply that you're not going home unless you do what
I'm asking you to do.

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 We see no reason to disturb the judge's evidence-based findings. The

context of the conversation does not support defendant's contention she was

coerced and pressured. It is evident from the record the detectives believed

Suggs was reluctant and withholding information, and they wanted to prolong

the interview until she was forthcoming with a complete and truthful account of

what she witnessed. When the detective told her she could not leave, he

explained:

Jocelyn, we're close, but not that close. We've got to
go to, to the bottom of it. You've got to tell us what
went down, so we can finish this, so you can go home
and we can go home. All we're doing is trying to catch
somebody. . . . You saw what happened. You're
basically telling us – most of the stuff you're telling
them is stuff that you're hearing from the people that
she told, saying this happened . . . that happened. You
don't need that because you were there. You saw what
happened.

....

As I told you, in five minutes you could have told
us, if you went straight to the point what happened, five
minutes this conversation would be over. [I]f you
would have told us exactly how everything went down
when you were there and when you saw what happened.

The detectives did not pressure Suggs to say anything particular, only to tell the

truth. And the interview's length was "about three hours"; Suggs was not kept

for an inordinate amount of time after that exchange.

A-5140-16T1
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 Although the judge's decision regarding factor eleven seems to have

conflated Suggs's motive to fabricate during the interview with her motive

during the evidentiary hearing, the judge did find "there is no presence of a

motive to fabricate other than her express desire not to be involved, not to

testify[.]" As confirmed by the judge's analysis of factor fifteen, that finding

applied to Suggs's mindset during the interview and during the evidentiary

hearing, supporting the judge's conclusion that Suggs had no motive to fabricate,

and the factor favored a finding of reliability.

The judge found Suggs did not know she was being videotaped and

accorded "medium weight in considering the reliability" under factor thirteen.

He also left "the inherent believability or lack of believability of the statements"

under factor fourteen to the jury, but found the statements reliable under this

factor in compliance with our holding in Gross that the trial judge's role "is not

to determine the credibility of the out-of-court statement," but "to determine

from the proofs whether the prior statement was made or signed under

circumstances establishing sufficient reliability that the factfinder may fairly

consider it as substantive evidence." 216 N.J. Super. at 110.

As to the fifteenth factor, the judge, in addition to finding Suggs's

reluctance to testify was corroborated, determined he was not presented with

A-5140-16T1
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sufficient evidence "to rule either in favor or against the reliability" of the

statements. The State argues Suggs's statements are corroborated by evidence

that: defendant's ex-girlfriend, Shadayia McCrae, gave a statement to police

indicating she saw defendant on Sixth Street prior to the shooting, in the "[e]arly

morning hours" of August 31, 2014, at which time he was carrying "a big grayish

colored gun"; police also lifted defendant's fingerprints from the trunk of the

BMW; Burroughs's injury was a gunshot wound that penetrated his eye; and

Jahmad Green's fingerprints were found on a magazine that was linked by

ballistics evidence to the shootings. Inasmuch as the judge did not find these

facts from the evidence, we will not consider them.

Although not directly addressed in the judge's analysis, we are not

persuaded by defendant's arguments that Suggs's custody was evidenced by the

arrest warrant about which the detectives told her when they picked her up in a

police vehicle from her place of employment before the second interview, and

that the detective's offer to have letters submitted to her employer, and other

offers of assistance with employment, coerced her statement, rendering it

unreliable. The second statement was only about fifty minutes in length and

Suggs was not held after it concluded. And there is no evidence the offers of

work-related assistance were an attempt to coerce Suggs's statement. Indeed,

A-5140-16T1
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she did not accept the offer. As the trial judge commented after viewing the

videos, "although I do not condone everything that . . . occurred in that interview

room, do they amount . . . to such an environment where all of the statements

that this witness made would be deemed involuntary? I don't reach that

conclusion."

"[A] trial court's evidentiary rulings are 'entitled to deference absent a

showing of an abuse of discretion[.]'" Harris, 209 N.J. at 439 (alteration in

original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Accordingly, the

trial court's decision to admit evidence should only be overturned if it was "made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization

Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Our review of the record fails to

provide us with any reason to disturb the trial judge's factual findings, analyses

of the Gross factors, or conclusion that Suggs's statements were admissible as

substantive evidence under N.J.R.E. 803(a)(1).

We do not agree with the trial judge that the statements were also

admissible under N.J.R.E. 803(c)(5). As a threshold, the statement must concern

"a matter about which the witness is unable to testify fully and accurately

A-5140-16T1
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because of insufficient present recollection[.]" N.J.R.E. 803(c)(5). The trial

judge found Suggs feigned her inability to recall; hence the statement did not

meet the threshold requirement.

II.

Defendant also argues a detective's expert testimony, presented in the

State's case-in-chief, was inadmissible under N.J.R.E. 702 because ballistics

evidence based on tool mark analysis is insufficiently reliable. Defendant bases

this argument on three reports—two published by the National Research Council

(NRC), and one by the President's Council of Advisors on Science and

Technology (PCAST)—as well as several federal opinions. In the alternative,

defendant suggests this court remand for a plenary hearing to determine whether

the challenged tool mark evidence meets the Daubert4 standard of reliability.

The State's expert testified about his analysis of guns, shell casings and

projectiles recovered during the shooting investigation and as to tool mark

analysis: the method he used to match the 9mm shell casings to the two

handguns that were recovered, and to identify the thirteen .45 caliber shell

casings as being fired from the same weapon, which was not recovered.

Specifically, the expert, after analyzing both recovered firearms, as well as the

4
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
A-5140-16T1
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shell casings and projectiles collected from the crime scenes, concluded all

thirteen .45 caliber shell casings were fired from the same firearm, the two

recovered projectiles could fit into a .45 caliber Glock firearm, six of the 9mm

casings recovered were fired from the Glock recovered from the scene, and the

remaining two casings found were fired from the recovered Springfield XD

handgun.

All three defense counsel stipulated to the detective's qualifications. None

of defendants' counsel objected to the testimony, nor did they challenge the

expert's methods or findings through cross-examination. As such, the trial

record is devoid of any argument, findings or analysis that are usually raised in

a pretrial motion challenging an expert's methodology, hampering our review.

See State v. Witt, 223 N.J. 409, 419 (2015) (noting parties must raise an issue

before the trial court to allow an appellate court to review it); Toll Bros., Inc. v.

Twp. of W. Windsor, 173 N.J. 502, 539 (2002) (noting courts should be

"reluctant to review matters . . . in any case where a record had not been fully

developed by the parties in the trial courts").

In State v.McGuire, 419 N.J. Super. 88, 129 (App. Div. 2011), when

considering the defendant's argument "made for the first time on appeal that tool

A-5140-16T1
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mark analysis as a discipline is not scientifically reliable," we determined that

we did

not have a factual record to evaluate thoroughly
defendant's new argument that expert tool mark
analysis should not be admitted at all in our courts. The
trial court is not expected "to investigate sua sponte the
extent to which the scientific community holds in
esteem the particular analytical writing or research that
the proponent of testimony advances as foundational to
an expert opinion." Hisenaj v. Kuehner, 194 N.J. 6, 16
(2008). If a party opposes expert testimony on the
ground that the field has not obtained general
acceptance, that party should raise that issue at trial.
Ibid.

We reach that same conclusion here.

[I]t is a well-settled principle that our appellate courts
will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such
a presentation is available unless the questions so raised
on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.

[Robinson, 200 N.J. at 20 (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973)).]

Because defendant did not object to the expert's testimony at trial, the

State was deprived of an opportunity to counter the arguments defendant now

advances in his merits brief by proffering testimonial and other evidence. We

do not have a developed record of tested theories regarding tool mark

identification. And we heed our Supreme Court's caution against reviewing

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"material not part of the evidentiary record and argument that went beyond that

which was advanced before the trial court" in order to determine if the trial court

erred in admitting expert testimony. Hisenaj, 194 N.J. at 25.

Further, in McGuire, we upheld the admissibility of tool mark analysis

evidence in the context of markings on plastic garbage bags. 419 N.J. Super. at

127-33. We see no reason to change that stance or to deviate from the Court's

clear holding that the Frye5 standard—the same standard we considered in

McGuire—is the prevailing standard to be applied in criminal cases. In re

Accutane Litig., 234 N.J. 340, 399 (2018).

We thus reject defendant's entreaty to reverse defendant's conviction

based on the admission of the expert's testimony, and his demand that the matter

be remanded for a plenary hearing on the scientific reliability of that evidence.

III.

Defendant next contends he was denied a fair trial because a color crime

scene photograph depicting Burroughs lying dead in a pool of blood was twice

shown to the jury, and because the prosecutor later told the jury in summation

that Burroughs "died in a halo, a bloody halo of his own blood." The photo,

5
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

A-5140-16T1
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which apparently was shown on a screen visible to the jury, was identified by

two officers who each testified that it depicted Burroughs as they found him at

the scene. None of the defense counsel objected when the photo was displayed

to the jury during each officer's testimony. Only when the State moved the photo

into evidence with numerous other exhibits, did all three defense counsel object.

The trial judge ruled the photo inadmissible because the prejudice it engendered

outweighed its probative value.

Defendant argues the display of the photo was unduly prejudicial and

deprived defendant of a fair trial because it served no purpose other than to

inflame the jury's passions. Defendant further contends this error was

compounded by the prosecutor's apparent reference during summation to the

bloody image depicted in the photograph. According to defendant, these errors

were especially prejudicial because of the alleged dearth of evidence, other than

the testimony of Suggs, supporting his conviction.

Because no objection was made to the display of the photo, we will not

reverse unless the error was "clearly capable of producing an unjust result," R.

2:10-2; that is, unless there is a "reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached," State v. Macon, 57 N.J.

325, 336 (1971). We do not perceive that to be the case.

A-5140-16T1
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 The record reveals the photo was briefly displayed during each officer's

testimony before the prosecutor moved on to another exhibit. The first officer

testified the photo depicted "the male that we found on the corner who was shot";

and confirmed that the condition of the man in the photo was as the officer found

him. When the second officer was shown the photo, he was asked, "Is this what

Mr. Burroughs looked like when you arrived at the scene?" He simply

responded affirmatively.

During an in-chambers colloquy among counsel and the judge prior to the

redirect examination of the first officer, the judge commented, "[w]ith regard to

the pictures that were published, . . . my . . . assumption that . . . if I didn't hear

any objection, which means you're fine with them. And do me a favor. If there

are pictures that are going to be published . . . just make sure you guys are all in

agreement." The prosecutor responded that he spoke to defense counsel about

the photographs in advance and "told them if you're going to have any objection

to publish[ing] them[,] . . . let me know."

We also discern that in the judge's final jury charge, when discussing "the

evidence that [the jury] may consider in judging the facts of this case," he told

the jury that the term "evidence" included "any exhibits that have been admitted

into evidence," and that "any exhibit that has not been admitted into evidence

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cannot be given to you in the jury room even though it may have been marked

for identification. Only those items admitted into evidence can be given to you."

The jury is presumed to have followed that instruction. See State v. Loftin, 146

N.J. 295, 390 (1996) ("That the jury will follow the instructions given is

presumed.").

Under those circumstances, the brief display of the photo, albeit twice,

was not clearly capable of causing an unjust result, leading the jury to an

outcome it might not have otherwise reached.

Further, the prosecutor's remarks were untethered to the photograph.

Although defendant ascribes the prosecutor's description to the photo, the

prosecutor did not mention it. We also note the prosecutor's statement could

have been fair comment on the first officer's testimony that, upon arrival at the

crime scene, he "saw a male down on the sidewalk bleeding heavily." He

described the victim's condition as "laying face up on the sidewalk bleeding

from his head." "Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to the scope of the

evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). "Generally, if no

objection was made to the improper remarks, the remarks will not be deemed

prejudicial." Id. at 83.

A-5140-16T1
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 We, therefore, find meritless defendant's contention that he was deprived

of a fair trial because the photo was twice displayed.

IV.

Defendant was sentenced to a twenty-year prison term, subject to an

eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of

aggravated manslaughter; a seven-year concurrent term for unlawful possession

of a weapon; and a consecutive seven-year sentence, also subject to a NERA

parole ineligibility period, for aggravated assault.

The trial judge applied aggravating factors one, three, six and nine,

N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), to all counts, and applied aggravating

factor two, N.J.S.A. 2C:44-1(a)(2), separately, to the aggravated assault charge.6

The court attributed "medium weight" to aggravating factor one, "[t]he

nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), noting the

shots were fired at a moving target—the Taurus—in the dark in a residential

neighborhood, where numerous young people congregated. The judge also

6
Although the judge included aggravating factor five in the order for
commitment, his oral sentencing decision makes clear that he did not intend its
application. "[W]here there is a conflict between the oral sentence and the
written commitment, the former will control if clearly stated and adequately
shown[.]" State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).
A-5140-16T1
23
noted: "the higher the degree of the crime," in this case, the first- and the

second- degree, "the greater the . . . public need for protection [of the public],

and the more the need for deterrence [of others]." The judge concluded: "[t]he

senseless nature of the shootings and the fact that . . . defendant fled the scene

. . . leads this [c]ourt to find that the aggravated manslaughter and the aggravated

assault were committed in a depraved manner."

With respect to the aggravated assault of Chambers, the court attributed

"somewhat low weight" to aggravating factor two, "[t]he gravity and seriousness

of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), due to the severity of

the injury she suffered.

The judge gave "medium weight" to aggravating factor three, "[t]he risk

that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3),

recognizing defendant had accumulated a criminal record consisting of two prior

arrests, two municipal court convictions, fifteen juvenile "incidents," and a

separate pending homicide charge. The judge also considered defendant's

numerous probation violations, his lack of employment history, and his

demeanor when questions were addressed to him. Regarding the latter point,

the judge commented:

[W]hen comments were addressed to him, it is my – I'm
not a doctor, [defendant]. But you were unable to take

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24
 those comments and respond to them in a way that I
would consider would have been appropriate. Instead,
you were too quick to respond. I understand sometimes
there are circumstances that are beyond you, but that to
me is a risk that you may have to consider heartily
because – work on it while you are going to be
incarcerated because this is something that could get
you involved in a number of instances whether in or
out.

The judge noted various witnesses mentioned defendant's affiliation with a local

street gang;7 but acknowledged: "I do not have any independent or substantial

evidence as to the extent of [defendant's] involvement in that particular group."

Accordingly, the judge gave "minimum to low weight" to defendant's gang

affiliation in his analysis of aggravating factor three.

Defendant argues the judge, in analyzing aggravating factor one,

improperly relied on the degree of the crimes, and double-counted recklessness,

which is an element of aggravated manslaughter; and improperly relied on the

fact defendant fled the scene which, according to defendant, is commonplace

and not especially heinous, cruel, or depraved. Defendant further argues the

crimes were not especially cruel, insofar as defendant did not intentionally

inflict pain or suffering upon the victims. Regarding factor two, defendant

7
A pretrial ruling barred the prosecutor from mentioning defendant's gang
affiliation at trial.
A-5140-16T1
25
contends the sentencing court again impermissibly double-counted because the

severity of the injury constitutes an element of aggravated assault and already

factored into the grading of the charge. Defendant also argues the sentencing

judge improperly relied on his perception of defendant's responses to the court,

as well as on unsubstantiated allegations of gang involvement, when weighing

aggravating factor three. Specifically, defendant notes the sentencing cour t

conceded the lack of independent or substantial evidence of defendant's gang

affiliation. Consequently, defendant argues there was no credible evidence on

which to base those findings.

Applying a deferential standard of review to the judge's sentencing

determination, we find no error in the judge's identification and balance of the

"aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State

v. Lawless, 214 N.J. 594, 606 (2013)).

Recognizing the judge's application of aggravating factor one "must be

based on factors other than the death of the victim and the circumstances

essential to support a finding that the defendant has acted with extreme

indifference to human life," State v. Fuentes, 217 N.J. 57, 76 (2014), we

conclude the judge properly analyzed facts that went beyond the essential

A-5140-16T1
26
elements of the crime. Multiple shots were fired in the dark at a moving target

in a residential neighborhood in an area populated by numerous bystanders. This

combination of facts transcends the requisite basis for reckless indifference and

buttresses the application of aggravating factor one. Defendant placed

numerous people at risk of bodily injury or death by wantonly and repeatedly

firing. See Lawless, 214 N.J. at 609-10 ("[C]ourts applying aggravating factor

one focus on the gravity of the defendant's conduct, considering both its impact

on its immediate victim and the overall circumstances surrounding the criminal

event.").

We also reject defendant's argument that the judge impermissibly relied

on the grading of the crimes in applying factor one. The judge simply quoted

the relevant case law that framed his analysis:

[T]he paramount reason that is provided that the [c]ourt
focused on is the severity of the crimes is to ensure the
protection of the pub[l]ic and the deterrence to others.
Thus, the higher the degree of the crime, the greater the
. . . public need for protection, and the more the need
for deterrence.

See Fuentes, 217 N.J. at 74 (quoting State v. Megargel, 143 N.J. 484, 500

(1996)) ("[T]he paramount reason we focus on the severity of the crime is to

assure the protection of the public and the deterrence of others. The higher the

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27
degree of the crime, the greater the public need for protection and the more need

for deterrence.").

Finally, in applying aggravating factor one, the sentencing judge properly

considered that defendant fled the scene. Although criminal defendants may

routinely flee the scene of their crimes, in this case it is noteworthy defendant

fled without rendering or calling for aid, leaving Chambers, his codefendant's

girlfriend and unintended victim, struggling for life. The judge did not err in

according "medium weight" to factor one.

We determine the remainder of defendant's sentencing arguments to be

without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We briefly note the low weight the judge attributed to aggravating factor two

was warranted by the severity of Chambers's injuries that more than surpassed

the statutory element of "serious bodily injury." N.J.S.A. 2C:11-1(b) (defining

serious bodily injury as an injury "which creates a substantial risk of death or

which causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ"); see also State v. Mara, 253

N.J. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries, which exceed

the statutory minimum for the offense, may be considered as aggravating.").

And, although the judge credited the testimony of several witnesses in finding

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28
defendant's gang affiliation, see State v. Smith, 262 N.J. Super. 487, 530 (App.

Div. 1993) ("sentencing judges may consider material that otherwise would not

be admissible at trial, as long as it is relevant and trustworthy"), the judge

attributed only "minimum to low weight" to that affiliation because there was

no evidence establishing the extent of his involvement. Moreover, defendant's

lengthy record alone warranted the "medium weight" the judge attributed to

aggravating factor three.

Finally, the judge properly applied the Yarbough8 factors in imposing a

consecutive sentence for the aggravated assault of Chambers. As the judge

8
In Yarbough, 100 N.J. at 644, the Court delineated factors upon which a
sentencing court should focus in determining whether a sentence should run
concurrent or consecutive:

(a) the crimes and their objectives were predominantly
independent of each other;

(b) the crimes involved separate acts of violence or
threats of violence;

(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be
imposed are numerous.
A-5140-16T1
29
noted, Burroughs and Chambers were in "two separate locations" when they

were shot; Chambers was seated inside the BMW, and Burroughs was shot "on

the sidewalk some ways away." Accordingly, the judge concluded, "[t]o issue

concurrent sentences as the defense is proposing would not adequately take into

account the [distinct] nature of the two harms inflicted by this defendant."

"[A] trial court has the discretion to impose consecutive sentences in cases

where . . . the only factor supporting consecutive sentencing is multiple victims."

State v. Molina, 168 N.J. 436, 442 (2001). "Although that principle resonates

most clearly in cases in which a perpetrator intentionally targets multiple victims

. . . it also applies to cases in which, as here, the defendant does not intend to

harm multiple victims but it is foreseeable that his or her reckless conduct will

result in multiple victims." State v. Carey, 168 N.J. 413, 429 (2001).

We perceive no violation of the sentencing guidelines; the aggravating

and mitigating factors found by the judge were based upon credible evidence in

the record; and the sentence imposed for these multiple crimes is not "clearly

unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70

(quoting State v. Roth, 95 N.J. 334, 365 (1984)).

Affirmed.

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