STATE OF NEW JERSEY VS. BRYANT LAMBERT (17-03-0355, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2476-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYANT LAMBERT, a/k/a
BRIAN LAMBERT,

Defendant-Appellant.
________________________________

Submitted April 27, 2020 – Decided May 11, 2020

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-03-
0355.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robert C. Pierce, Designated Counsel, on the
brief).

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Joie D. Piderit,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM

Defendant appeals from his convictions for eleven counts of first-degree

armed robbery, N.J.S.A. 2C:15-1(a)(2) (counts one through eleven); three

counts of the disorderly persons offense of simple assault, N.J.S.A. 2C:12-

1(a)(1) (counts fourteen through sixteen); and one count of fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seventeen).1 We affirm.

Defendant and two others entered an apartment and robbed all occupants

inside. They took the victims' wallets, jewelry, and cell phones, placing the

stolen property into a pillowcase. Defendant and the others fled the scene in a

vehicle. Once police arrived, the victims gave them a general description of

their assailants as three black males, and the general direction in which the

assailants fled. Police chased the vehicle, which abruptly stopped near a park,

and its occupants ran in different directions. Police found defendant in the park

out of breath, muddy, and without shoes. He was arrested for being in the park

after hours.

1
The jury found defendant not guilty of second-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(b) (count twelve), and second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count thirteen).
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2
 Police secured a search warrant and searched the vehicle, in which they

found a brown pillowcase containing money, the victims' wallets, and the

victims' cell phones. The wallets contained the victims' identifications.

On appeal, defendant argues:

POINT I

THE [JUDGE] ERRED BY RESTRICTING
[DEFENDANT'S] CROSS-EXAMINATION OF THE
ARRESTING OFFICER CONCERNING THE
ACTIONS AND STATEMENTS OF [DEFENDANT]
WHEN HE FIRST ENCOUNTERED THE OFFICER,
WHICH DEPRIVED [DEFENDANT] OF HIS SIXTH
AMENDMENT RIGHT TO CONFRONT HIS
ACCUSER.

POINT II

[DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL
BECAUSE THE PROSECUTOR STATED – IN THE
PRESENCE OF THE JURY – THAT "[DEFENSE
COUNSEL] IS TRYING TO SOLICIT
DEFENDANT'S STATEMENTS FROM [THE
ARRESTING OFFICER]."

POINT III

PROSECUTORIAL MISCONDUCT DURING THE
PROSECUTOR'S OPENING STATEMENT AND
SUMMATION DENIED [DEFENDANT] A FAIR
TRIAL.

A. THE [ASSISTANT] PROSECUTOR COMMITTED
MISCONDUCT IN HIS OPENING STATEMENT BY
PROVIDING FACTS THAT WOULD BE

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3
 INADMISSIBLE AT TRIAL. (NOT RAISED
BELOW).

B. THE [ASSISTANT] PROSECUTOR COMMITTED
MISCONDUCT DURING HIS SUMMATION BY
MISCHARACTERIZING THE DEFINITION OF
REASONABLE DOUBT. (NOT RAISED BELOW).

C. THE [ASSISTANT] PROSECUTOR COMMITTED
MISCONDUCT DURING HIS SUMMATION BY
COMMENTING ON A SCIENTIFIC TEST THAT
WAS NOT IN EVIDENCE.

D. CONCLUSION.

POINT IV

THE [JUDGE] ERRED BY NOT GRANTING
[DEFENDANT'S] MOTION FOR A JUDGMENT OF
ACQUITTAL ON COUNTS SEVEN, NINE AND TEN
BECAUSE THE ALLEGED VICTIMS DID NOT
TESTIFY AT TRIAL.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.

I.

We begin by addressing defendant's argument that the judge erred in

limiting his counsel's cross-examination of the arresting officer (the officer)

when defense counsel asked the officer about a statement defendant made after

the robbery. Defense counsel asked the officer if he remembered defendant

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4
saying he was just robbed. The judge sustained the assistant prosecutor's

objection, ruling that it was improper for counsel to elicit this statement from

the officer because it was self-serving and did not have a "good faith basis."

Defense counsel did not proffer any basis for the statement's admissibility.

"Generally, when reviewing the admission or exclusion of evidence, [we]

afford '[c]onsiderable latitude' to a trial judge's determination, examining 'the

decision for abuse of discretion.'" State v. Terrell, 452 N.J. Super. 226, 248

(App. Div. 2016) (second alteration in original) (quoting State v. Kuropchak,

221 N.J. 368, 385 (2015)), aff'd, 231 N.J. 170 (2017); State v. Castagna, 400

N.J. Super. 164, 182 (App. Div. 2008). "Importantly, '[u]nder th[is] standard,

[we] should not substitute [our] own judgment for that of the trial [judge], unless

"the trial [judge's] ruling was so wide of the mark that a manifest denial of justice

resulted."'" Terrell, 452 N.J. Super. at 248 (first and second alterations in

original) (quoting Kuropchak, 221 N.J. at 385-86).

A judge may properly exclude exculpatory statements because "a self-

serving statement made after the commission of a crime provides too much

opportunity for contrivance to warrant admission." State v. Gomez, 246 N.J.

Super. 209, 215-16 (App. Div. 1991). "While a defendant has a Sixth

Amendment right to offer evidence that refutes guilt or bolsters his claim of

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5
innocence, that evidence must be competent, relevant and not unduly

prejudicial." State v. Nevius, 426 N.J. Super. 379, 397 (App. Div. 2012)

(citations omitted).

We conclude the judge did not abuse his discretion. On cross-

examination—after defense counsel asked the officer if he remembered

defendant saying that he himself had just been robbed—the officer said no.

After the question had been asked and answered—twice—the assistant

prosecutor objected, arguing that defense counsel was trying to introduce

hearsay: Defendant's out of court statements to the officer. The judge correctly

sustained the objection but did not strike the answers.

Although defendant argues the judge restricted the examination on this

subject, the subject was improper because there was no evidence suggesting that

defendant told the officer that he was robbed. Nevertheless, defendant's

contention is moot because the officer answered the question twice. Even if

there was a basis to ask the question⸻which there was not⸻the response called

for hearsay and would have been inadmissible. Furthermore, defendant

allegedly made the statement after the robbery, thus it lacked reliability. Gomez,

246 N.J. Super. at 215-16.

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 II.

Defendant argues the assistant prosecutor committed misconduct,

pointing to three instances. Our standard of review of such an argument is

settled. "[P]rosecutors occupy a unique position in the criminal justice system

and . . . their primary duty is not to obtain convictions[,] but to see that justice

is done." State v. Zola, 112 N.J. 384, 426 (1988). A prosecutor's misconduct

must have been so egregious to have deprived defendant of a fair trial. State v.

Wakefield, 190 N.J. 397, 446 (2007). We will not reverse a defendant's

convictions, despite prosecutor misconduct, unless such conduct was so

egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137

N.J. 434, 474 (1994). To reverse, the prosecutor's conduct must constitute a

clear infraction and substantially prejudice the defendant's fundamental right to

have the jury fairly evaluate the merits of his or her defense. State v. Roach,

146 N.J. 208, 219 (1996).

"In determining whether a prosecutor's misconduct was sufficiently

egregious, [we] 'must take into account the tenor of the trial and the degree of

responsiveness of both counsel and the court to improprieties when they

occurred.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Marshall,

123 N.J. 1, 153 (1991)). This court should examine whether timely and proper

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7
objections were raised; whether the offending remarks were promptly

withdrawn; and whether the trial judge struck the remarks and gave instructions

to the jury. State v. Smith, 212 N.J. 365, 403 (2012). We will take each of

defendant's three arguments of purported misconduct in turn.

A.

Defendant first argues, for the first time on appeal, the assistant prosecutor

committed misconduct when he said—in a speaking objection to a line of

questioning of the officer by defense counsel—"[Defense counsel is] trying to

solicit defendant's statements from [the arresting officer]." Defendant claims

his counsel objected to the statement, but the judge took no action. He further

asserts that the assistant prosecutor's statement and the judge's inaction deprived

him of a fair trial because the jury heard defendant gave a statement that may

have been incriminating about which they did not hear during trial.

"When a defendant fails to object to an error or raise an issue before the

trial [judge], we review for plain error." State v. Ross, 229 N.J. 389, 407 (2017)

(quoting R. 2:10-2). We may only reverse if the error was "clearly capable of

producing an unjust result." Ibid. (quoting R. 2:10-2). We see no error, let lone

plain error.

During a sidebar conference, out of the jury's presence, the judge said:

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 You're the one that's asking him about . . . [defendant's]
statement. I'm going to sustain the objection. I'm going
to tell the jury that[] it['s] an improper line of
questioning. Because . . . you are trying to solicit or
elicit from this police officer certain parts of
[defendant's] statement that are self-serving or
exculpatory.

We conclude there is no prosecutorial misconduct. Setting aside that

defense counsel attempted on cross-examination of the officer to elicit the

statement itself, the assistant prosecutor's remark—given the circumstances—

did not amount to misconduct or plain error. If anything, the comment was

fleeting and in direct response to the cross-examination.

B.

Defendant, for the first time on appeal, contends that the assistant

prosecutor committed misconduct during his opening statement by stating that

the motor vehicle had a brown bag on the floor that resembled the bag the

victims described. He argues the prosecutor improperly stated that an officer

called a victim's cell phone and heard it ringing from inside the bag. Further, he

states the prosecutor made this statement despite the phone call's inadmissibility.

We consider defendant's contentions for plain error. R. 2:10-2.

Our review of a prosecutor's opening statement "is two-fold: [W]hether

the prosecutor committed misconduct, and, if so, 'whether the prosecutor's

A-2476-17T22476-17T2
9
conduct constitutes grounds for a new trial.'" State v. Wakefield, 190 N.J. at

446 (quoting State v. Smith, 167 N.J. 158, 181 (2001)). When making opening

statements, "prosecutors should limit comments . . . to the 'facts [they] intend[]

in good faith to prove by competent evidence[.]'" State v. Echols, 199 N.J. 344,

360 (2009) (first and second alterations in original). "A prosecutor's opening

statement should be limited to what the prosecutor 'will prove' and 'not

anticipate' the prosecutor's summation." State v. Rivera, 437 N.J. Super. 434,

446 (App. Div. 2014) (quoting State v. Ernst, 32 N.J. 567, 577 (1960)).

Here, the assistant prosecutor mentioned admissible evidence—the

pillowcase, its contents, and where it was found—when he summarized the

State's case. The assistant prosecutor did not mention the phone call to show

that it took place or that the victim gave his phone number to the police—which

would be hearsay and inadmissible. Rather, the prosecutor mentioned the phone

call to show police had probable cause for the car's search, evidence that the

judge—during pretrial motions—already ruled admissible to show probable

cause. Furthermore, the cell phone remark was harmless because the victims

identified the items located in the bag, and because they testified that they were

robbed at gunpoint.

A-2476-17T22476-17T2
10
 C.

Defendant, again for the first time on appeal, argues the assistant

prosecutor committed misconduct during his summation by mischaracterizing

the definition of reasonable doubt. And that the assistant prosecutor's use of the

words "fairy tales" and "Stephen King novels" "improperly denigrated his

defense and was a complete misstatement of the law, which deprived [him] of a

fair trial." We consider these contentions for plain error. Raised below,

defendant also claims the prosecutor committed misconduct during his

summation when he commented on a scientific test that was not in evidence.

"Prosecutors are afforded considerable leeway in closing arguments as

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

presented." Frost, 158 N.J. at 82. Prosecutors "are expected to make vigorous

and forceful closing arguments to juries." Ibid. "So long as he [or she] stays

within the evidence and the legitimate inferences therefrom[,] the [p]rosecutor

is entitled to wide latitude in his summation." State v. Mayberry, 52 N.J. 413,

437 (1968). But, a prosecutor's primary duty "is not to obtain convictions, but

to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).

As to defendant's reasonable doubt argument, the assistant prosecutor

stated in his summation:

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 Ladies and gentlemen, when the [j]udge talks
about beyond a reasonable doubt, remember he told you
it doesn't [mean] beyond all doubt. The human mind is
a crazy thing. We can come up with so many wild,
crazy scenarios. All sorts of thing[s]. Stephen King,
fiction, fairy tales. The human capacity for an
imagination is endless. But that's not what beyond a
reasonable doubt means. It doesn't mean we can
imagine some implausible, wild, alternate scenario
that's reasonable doubt. Reasonable doubt is by its own
reasonable.

After the prosecutor's statements, the judge instructed the jury as to the

meaning of "reasonable doubt." The judge emphasized: "[R]easonable doubt is

an honest and reasonable uncertainty in your minds about the guilt of the

defendant after you have given full and impartial consideration to all of the

evidence." The jury is presumed to have followed that instruction. See State v.

Loftin, 146 N.J. 295, 390 (1996). The judge gave the correct charge on

reasonable doubt and properly instructed the jury on how to consider counsels'

summation arguments. There is no prejudice as to the comments in summation,

and we conclude there is no error.

As to the assistant prosecutor's reference to "fairy tales" and "Stephen

King," we agree with the judge that the assistant prosecutor was making an

analogy. Also, defense counsel used the same "fairy tales" analogy in his

opening statement. Thus, there is no error.

A-2476-17T22476-17T2
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 Finally, the assistant prosecutor in his summation mentioned a YouTube

video relating to cognitive recall. He said:

[T]here was a thing going around a few years ago on
[YouTube] where it was a test of perception to see if
people [recalled certain conduct.]

....

[A]nd . . . there was a bunch of people standing around
passing a ball back and forth. . . . And the message
pops up to start count[ing] how many times the ball is
passed. And the people pass[] the ball back and forth.
And the thing ends, and you're expecting them to say
how many times . . . the ball [was] passed, [but rather
the] question said, did you see the gorilla go through
the middle of the room? And as these people [were]
passing the ball back and forth, there[] [was] literally a
guy in a gorilla suit who dance[d] across the middle of
the room.

Defense counsel objected to the prosecutor's statement. The judge overruled

counsel's objection, stating: "Well, I don't think that . . . he was using it as a

scientific study. I think he was trying to make an analogy." Analogies during

summations are permissible. See State v. Koskovich, 168 N.J. 448, 534-35

(2001) (finding the prosecutor's analogy concerning soldiers and terminal cancer

patients permissible); State v. Michaels, 264 N.J. Super. 579, 641 (App. Div.

1993) (finding the prosecutor could use a "puzzle analogy" to argue that the

defendant was guilty), aff'd, 136 N.J. 299 (1994).

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 Although we must give "leeway" to the assistant prosecutor, his or her

arguments must be related to the evidence presented at trial. Frost, 158 N.J. at

82. Throughout cross-examination, defense counsel challenged the witnesses'

memories on the number of robbers, whether the robbers were masked, and

whether the robbers were African American. The assistant prosecutor's recall

analogy relates to defense counsel's challenges. Thus, we see no prosecutorial

misconduct warranting reversal.

III.

Defendant argues the judge erred by not granting his motion for a

judgment of acquittal on counts seven, nine and ten because "the alleged victims

did not testify at trial." He claims his Sixth Amendment right to confront these

victims was violated. Further, he states that the State failed to prove all elements

of robbery as to these victims because they did not testify.

We review a trial judge's decision on a motion for judgment of acquittal

using the same Reyes standard as the trial judge. State v. Johnson, 287 N.J.

Super. 247, 268 (App. Div. 1996). A judge considering a defendant's motion

[a]t the close of the State's case or after the evidence of
all parties has been closed . . . shall . . . order the entry
of a judgment of acquittal of one or more offenses
charged . . . if the evidence is insufficient to warrant a
conviction.

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 [R. 3:18-1.]

The standard is:

[W]hether, viewing the State's evidence in its entirety,
be that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

Here, defendant challenges counts seven, nine, and ten—all first-degree

robbery charges. To convict a defendant of robbery, the prosecutor must prove

that in the course of committing a theft, the defendant:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear
of immediate bodily injury; or

(3) Commits or threatens immediately to commit any
crime of the first or second degree.

[N.J.S.A. 2C:15-1.]

When a defendant is charged with first-degree armed robbery, the prosecutor

must also prove that the defendant attempted to kill another person, "or

purposely inflict[ed] or attempt[ted] to inflict serious bodily injury, or [was]

armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon."

Ibid.

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 "The right of an accused to be confronted by the witnesses against him is

protected by the Sixth Amendment to the United States Constitution and by the

Constitution of New Jersey." State v. Benitez, 360 N.J. Super. 101, 113 (App.

Div. 2003) (quoting State v. Nutter, 258 N.J. Super. 41, 53 (App. Div. 1992)).

"The Confrontation Clause guarantees two types of protection to a criminal

defendant: (1) [T]he right to physically confront witnesses against him; and (2)

the right to cross-examine." Ibid.

First, as to defendant's Confrontation Clause challenge, defendant failed

to raise this argument. Defendant only argued that counts seven, nine and ten

should be dismissed because the State lacked evidence to establish first-degree

robbery. Second, the victims did not need to testify as the State relied on

circumstantial evidence to establish its case beyond a reasonable doubt.

We also agree with the judge's analysis under Reyes and that the assistant

prosecutor put forth ample evidence as to counts seven, nine, and ten. The judge

stated the proper standard:

[Rule] 3:18-1 provides that the [c]ourt shall dismiss a
count in the indictment if the evidence is insufficient to
warrant a conviction. What we have here is proof of an
event where [eleven] people were in a[n] illegal or
unlawful gambling facility when they were confronted
by . . . approximately three masked men. Who,
according to the testimony of the victim[s], robbed . . .

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16
 at gunpoint or with what appeared to be a gun. And the
three then fled.

Related to count seven, the judge stated that "we [have] the victim – we [have]

his wallet – in evidence." The judge said the State relied on circumstantial

evidence to establish this count and that the victim did not need to testify.

Further, as to counts nine and ten, the judge accepted the prosecutor's

explanation on how he put forth evidence of the first-degree robbery elements.

As to count nine, the assistant prosecutor stated:

[T]here was testimony that [the victim] was present
inside [the apartment] during the robbery. And in [the
police report] there's an indication that the pillowcase
contained a wallet with [the victim's] license and other
identifying credentials inside of it. Obviously, the jury
could infer that since he was present and his property
ended up in that [pillowcase], he also was the victim of
a robbery.

As to count ten, the assistant prosecutor emphasized:

I believe there was testimony that [this victim] was one
of the people specifically [addressed] when [the
officer] was cross-examined and [defense counsel]
went through the list of every single person who said
they were present and gave a description . . . of what
property of theirs was taken[.] [This victim] was one
of the people that was referenced in that testimony.
And, additionally, he is listed on the property report. I
believe one of the items says that there was a wallet
recovered with [this victim's identification.]

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We conclude that the assistant prosecutor presented sufficient circumstantial

evidence that these victims were in the apartment during the robbery and were

robbed at gunpoint.

IV.

Finally, defendant argues his sentence is "manifestly excessive."

Defendant was sentenced to a total of eighteen years' imprisonment subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on counts one through

eleven and counts fourteen through sixteen; and one year imprisonment for

count seventeen, to run consecutive to his eighteen-year sentence. He claims

the judge erred because he did not consider that "[defendant] was nineteen years

old [at the time of the robbery] with no adult convictions or arrests and was

substantially influenced by [his] co-defendant[.]"

We review the trial judge's sentencing decision for an abuse of discretion.

State v. Blackmon, 202 N.J. 283, 297 (2010). We will not disturb a sentence

unless it is manifestly excessive or unduly punitive. State v. O'Donnell, 117

N.J. 210, 215-16 (1989). This court must consider "whether the trial [judge]

. . . made findings of fact that are grounded in competent, reasonably credible

evidence and whether the 'factfinder [has] appl[ied] correct legal principles in

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exercising [his or her] discretion.'" Blackmon, 202 N.J. at 297 (third and fourth

alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)).

We should not set aside a sentence unless: "(1) [T]he sentencing

guidelines were violated; (2) the findings of aggravating and mitigating factors

were not 'based upon competent credible evidence in the record;' or (3) 'the

application of the guidelines to the facts' of the case 'shock[s] the judicial

conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (second alteration in

original) (quoting Roth, 95 N.J. at 364-65). A judge "first must identify any

relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and

(b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). He or she then

must "determine which factors are supported by a preponderance of [the]

evidence, balance the relevant factors, and explain how it arrives at the

appropriate sentence." O'Donnell, 117 N.J. at 215.

Contrary to defendant's argument, the judge did consider his age and lack

of criminal history. The judge stated:

In this case, defendant is [twenty] years old. At
the time of the offense he was [nineteen]. So . . . he's
relatively young. Looking at his criminal history, I
mean, he's too young to have much of a criminal
history, but he does have a juvenile history. In
September of 2010[,] he was charged with a simple
assault, he got a deferred disposition. [In] July of 2013,
he was charged with a robbery, which according to his

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 rap sheet, reflects a gang[-]related offense[,] [f]or
which he received . . . some sort of non[-]custodial
term.

Thereafter[,] he violated his probation twice. As
an adult, in September of 2012, he was charged with a
theft, but there's no disposition. However, in August of
2015[,] he[] [was] charged with, and it looks like he
pled guilty in municipal court, to hindering.

....

And then in May of 2016[,] he was charged with a
robbery.

Considering this information, the judge found aggravating factors three (the risk

that defendant will commit another crime) and nine (the need for deterrence).

He found no mitigating factors and that the aggravating factors therefore

outweighed the mitigating factors. After the judge balanced these factors, he

sentenced defendant to a total of eighteen years' imprisonment subject to NERA

for counts one through eleven and counts fourteen through sixteen; and one year

imprisonment for count seventeen, to run consecutive to his eighteen-year

sentence.

The judge applied the sentencing guidelines and determined which

aggravating and/or mitigating factors applied. He sentenced defendant within

the sentencing guidelines. Therefore, we conclude the judge did not abuse his

discretion and defendant's sentence was not manifestly excessive.

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Affirmed.

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