STATE OF NEW JERSEY VS. MARK P. MCCAFFREY (14-11-2855, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-0313-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK P. MCCAFFREY,

Defendant-Appellant.
_____________________________

Argued November 14, 2019 – Decided May 18, 2020

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 14-11-2855.

David Anthony Gies, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; David Anthony Gies, on the briefs).

Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Kayla E. Rowe, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM
 Following a bifurcated jury trial, defendant was convicted of first-degree

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

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts two and four);

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

4(d) (count five); fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count six); and fourth-degree possession of a weapon by a convicted

person, N.J.S.A. 2C:39-7(a) (count seven). The convictions stemmed from

defendant stabbing two men, one in the chest, during an altercation in a parking

lot at a bar. Defendant left the scene after the stabbing. After denying

defendant's motion for a new trial, R. 3:20-1,1 the trial judge sentenced

defendant to an aggregate twelve-year term of imprisonment, subject to an

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

Release Act (NERA), N.J.S.A. 2C:43-7.2.2

On appeal, defendant raises the following points for our consideration:

POINT ONE

1
Defendant's earlier motion at the close of the State's case for a judgment of
acquittal, pursuant to Rule 3:18-1, was also denied.
2
After appropriate mergers, defendant was sentenced to a twelve-year NERA
sentence on count one, a concurrent five-year sentence each on count four and
five, and a concurrent one-year sentence on count seven.
A-0313-18T1
2
THE TRIAL COURT'S FAILURE TO CAUTIOUSLY
CONSIDER WHETHER THE PROBATIVE VALUE
OF THE EVIDENCE OF FLIGHT WAS
SUBSTANTIALLY OUTWEIGHED BY ITS
INHERENT PREJUDICE IS REVERSIBLE ERROR.

POINT TWO

NOT ONLY WAS DEFENDANT UNDULY
PREJUDICED BY THE STATE'S REQUEST FOR A
FLIGHT CHARGE AFTER CLOSING
ARGUMENTS, BUT THE TRIAL COURT ERRED
WHERE IT DID NOT INSTRUCT THE JURY WITH
RESPECT TO DEFENDANT'S REASONABLE
EXPLANATION FOR HIS DEPARTURE FROM THE
SCENE. (NOT RAISED BELOW).

POINT THREE

THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY THAT DEFENDANT'S TWO PRIOR
CONVICTIONS COULD BE USED ONLY AS
EVIDENCE PROBATIVE OF HIS CREDIBILITY IS
PLAIN ERROR. (NOT RAISED BELOW).

POINT FOUR

A RATIONAL BASIS EXISTS TO INSTRUCT THE
JURY ON SELF-DEFENSE. (NOT RAISED
BELOW).

POINT FIVE

THE TRIAL COURT'S DENIAL OF DEFENDANT'S
NEW TRIAL MOTION IS A MISCARRIAGE OF
JUSTICE AND WARRANTS REVERSAL.

POINT SIX

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 THE TRIAL COURT ERRED WHERE IT DID NOT
CONSIDER MITIGATING FACTOR [FIVE] IN
SENTENCING DEFENDANT TO TWELVE YEARS
ON THE ATTEMPTED MURDER OFFENSE. (NOT
RAISED BELOW).

Having considered the arguments and applicable law, we affirm.

I.

We glean these facts from the trial record. In the early morning hours of

June 7, 2014, Evan Lubin, Jr. and Gerard Pasqualini were stabbed during an

altercation in the parking lot of Hemingway's Cafe, a bar in Seaside Heights.

The previous night, Lubin agreed to go to Hemingway's with friends to celebrate

his recent college graduation. To that end, at about 11:30 p.m., Lubin, Eliezer

Cepeda, Jr., and Janella Gunter met Kimberly Waller at Waller's house.

According to Lubin, although "the original plan" did not include defendant,

Waller's boyfriend, defendant decided to join them. As a result, Waller drove

to the bar with defendant in her car, 3 while Lubin, Cepeda and Gunter drove in

a separate vehicle. Before getting into their respective vehicles, defendant

spontaneously told Lubin that "he had a knife and a gun in the car."

The parties arrived at the bar after midnight. Shortly after arriving, they

went their separate ways, with Lubin and Cepeda going one way and Gunter,

3
Waller's sister was the owner of the car.
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4
Waller, and defendant another. During the night, defendant and Waller argued

over Waller's flirtatious behavior. Defendant later separated from the group

when he observed Waller "dancing with another guy," who was an old friend of

hers. At around 2:45 a.m., when the bar was about to close, Lubin and Cepeda

reunited with Gunter and Waller at the exit doors. Upon seeing how inebriated

Waller was, Lubin "decided to walk [her] to her car." As they proceeded to the

parking lot, Waller continued to talk to her old male friend, and "flirt[ed]" with

a police officer who cautioned her against driving before "he drove off." At that

point, defendant was already outside. When he observed Waller's interaction

with her male friend, defendant approached and started "yelling" at them.

Eventually, Waller sat in the rear passenger seat on the driver side of her

car and Gunter jumped into the driver seat, after Lubin told Waller "not to drive"

and suggested instead that she allow Gunter to drive her home while he

followed. Angered by Lubin's interference, defendant, who was then seated in

the front passenger seat of Waller's car, cursed at Lubin and threatened to "f***

[him] up." Lubin ignored defendant and walked away with Cepeda as Gunter

"started pulling out" of the lot. While Lubin was walking away, Waller's car

came to a stop and he observed defendant and Waller engaged in a physical

altercation inside, prompting him to intervene to try "to diffuse" the situation.

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Consequently, Lubin placed his right hand on the roof of the car, leaned into the

open window on the passenger side of the car where defendant was seated, and

told them to "calm down." In response, defendant "grabbed [Lubin's] shirt" with

his right hand, told Lubin to "get away from [him]," threatened to "kill [him],"

called him a "nigga,"4 and then "swung" his left hand twice "real fast" towards

Lubin.

Although Gunter and Cepeda recalled Lubin and defendant exchanging

punches after defendant called Lubin a "nigger," Lubin testified that when he

lifted his arm to try to "punch" defendant, he felt a sensation like "electricity"

and "immediately noticed [he] couldn't even hold a breath." As Lubin retreated

towards his car, he observed "blood everywhere" and realized he had been

stabbed by defendant. While he walked away, Lubin noticed "three" or "four

people" run towards Waller's car and "punch [defendant] through the window."

Gunter described the scene as "a herd of people coming towards the passenger

side of the car and . . . hitting [defendant]," and Cepeda testified he saw "these

other guys" come "out of nowhere," "jump[] in the car, and . . . hit[]

[defendant]."

4
Lubin is African American and defendant is Caucasian.
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 The second victim, Pasqualini, was not part of the original group, but met

Waller and Gunter, with whom he was previously acquainted, as they were

leaving Hemingway's. Pasqualini noticed that Waller was "a little intoxicated"

when she was "talking to a police officer," who told Pasqualini to not "let her

drive." Although none of the other witnesses recalled his involvement,

Pasqualini testified that, as a result of the police officer's order, he helped Waller

into the rear passenger seat of her car, while Gunter was seated in the driver seat

and defendant in the front passenger seat. Before Waller's vehicle left the

parking space, Pasqualini was "leaning up against the car" on the passenger side

talking to Gunter when he heard a "commotion" stemming from Waller and

defendant arguing inside the vehicle. "[A]ll of a sudden [he] felt a blow to [his]

right bicep," but did not know what had happened. When he was "hit" a second

time, he noticed he was "bleeding everywhere," realized he had been stabbed by

defendant, and promptly retreated "from the whole situation." Pasqualini did

not know Lubin or Cepeda and did not recall seeing anyone else near the car at

that point.

After the stabbing, Gunter tried "to drive off," but defendant "pushed

[Gunter] out of the car," "jump[ed] into the driver's seat before [she] could even

get off the ground," and "took off," almost "run[ning] over [her] feet." When

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Gunter looked down at her hand, which defendant had forcibly removed from

the gearshift before shoving her out of the car, it was bleeding.

Lubin received emergency aid for his wounds at the scene from "EMT

personnel," who observed two "puncture" wounds in "his chest" and "a five-

centimeter laceration to his right forearm." Lubin was then transported to Jersey

Shore Medical Center by helicopter because his injuries were deemed life-

threatening. He remained in the hospital for five days, and subsequently

underwent "nerve surgery on [his] arm" to correct a "severed" "ulnar nerve."

Pasqualini was transported to Community Medical Center by ambulance. He

suffered "two stab wounds, one to the back of the right . . . . [t]ricep" and "one

to the bicep," which required stitches and staples.

During the five-day trial, along with two crime scene investigation

detectives, a DNA expert, and a paramedic, Gunter, Cepeda and both victims

testified for the State. Waller and defendant testified for the defense. For the

most part, Lubin's, Gunter's, and Cepeda's testimony were consistent in

describing the events leading up to and the aftermath of the stabbing, as well as

defendant's and Lubin's interaction during the actual stabbing. Pasqualini

testified about his involvement in the melee and his resulting injuries. All four

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witnesses acknowledged they did not see a knife in defendant's hand, and no

knife was ever recovered.5

Physical evidence collected from the scene included "blood swabbings"

from "blood pool[s]" and "blood trails," as well as a "blood[-]soaked" "shirt"

retrieved from a "garbage can." Inside Waller's vehicle, "red staining, consistent

with blood," was swabbed from various parts of the vehicle, including "the front

passenger side door," "the dashboard on the front passenger side," and the "A-

pillar." Subsequent DNA testing of blood stains recovered from the car matched

Lubin and Pasqualini, and defendant "matche[d] the minor DNA profile"

obtained from one specimen.

Waller's account of the night's events differed from the State's witnesses,

in that Waller denied seeing defendant stab anyone. According to Waller, they

all left Hemingway's together around closing time and proceeded to the parking

lot. While defendant was seated in the front passenger seat, Gunter in the driver

seat, and Waller in the rear passenger seat of her car, there were "a bunch of

guys standing around the car" arguing with defendant. All of a sudden,

defendant and a "guy start[ed] going at it" and defendant "burst[ed] out the N

5
Just prior to the stabbing, Gunter observed defendant "reach[] for his pocket"
and "pull[] something out" but she "did not know what the object was."
A-0313-18T1
9
word." In response, "the guys . . . jumped the car, . . . punching [defendant]

back and forth through the car," while defendant attempted to "block [the]

punches." During the chaos, Gunter "tried to drive off" but later "got out [of]

the car," prompting defendant to "jump[] over to the driver's [seat]" and "dr[i]ve

off." Waller testified defendant drove off "because of the guys jumping all over

the car." Waller denied ever seeing defendant with a knife, did not recall seeing

Lubin or Pasqualini by her car, and did not see defendant hit anyone. However,

after the incident, Waller found a watch in her car that Pasqualini identified as

the watch he was wearing when he was stabbed.

Defendant corroborated Waller's account of the incident, explaining that

after the bar let out, people were walking towards their cars, "talking crap to

each other" and hassling back and forth. To avoid a confrontation with anyone,

defendant exchanged a few words, "[j]ust trying to get people away from [him],"

and tried to get to Waller's car as quickly as possible. Once he was seated in the

front passenger seat, Waller in the rear passenger seat, and Gunter in the driver

seat, Gunter "drove a few feet" and "stop[ped] the car." "As soon as she

stopped," "people on both sides" "came through the windows" and "attacked

[him] from both sides." According to defendant, as he was being punched, he

"[got] over to the driver's seat" and "[took] off" because Gunter "just froze up"

A-0313-18T1
10
and then "jumped out [of] the car." Although he did not "know exactly how

many people were actually there," defendant testified there were so many people

that he could not see anything "but people around the car and if [he] didn't get

into that driver's seat, [he] would have probably died right there."

Defendant denied threatening anyone and did not recall using the "N

word," but explained that if he did, "it was not in any racial terms." Defendant

denied having a knife, denied stabbing Lubin, whom he described as "the kind

of kid that nobody would have a problem with," and denied stabbing Pasqualini,

whom he claimed he did not even know. Defendant denied arguing with either

victim, and denied putting his hands on anyone, explaining that he only "put [his

arm] up over [his] head" to block the blows from the mob. Although defendant

did not complain of any injuries to Waller, who did not observe any injuries or

blood on defendant after they left the parking lot, defendant testified that he

went to the emergency room the following day because "[he] was stabbed [in] a

few different places" and "[his] mouth was . . . sliced open in the inside, where

[he] was hit." Defendant acknowledged that he did not call the police after being

attacked, but explained that he did not want to be involved in any altercation

because "[he] was on probation." When he was contacted by the police the

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11
following day and questioned about the incident, for the first time, he told the

officer that he was the victim.

II.

In Points One and Two, defendant argues that because "the probative

value of defendant's departure was substantially outweighed by its undue

prejudice," a "flight charge should not have been given." Further, by "not

instruct[ing] the jury regarding defendant's explanation for his departure," the

judge "failed to carefully craft" the flight charge "to ameliorate the potentia l

prejudice."

We review a trial court's decision to give a flight charge for abuse of

discretion. State v. Long, 119 N.J. 439, 499 (1990). Under that "deferential

standard of review," we will not reverse the trial court's decision unless we find

that the ruling "'was so wide of the mark that a manifest denial of justice

resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly,

97 N.J. 178, 216 (1984)).

An instruction on flight "is appropriate when there are 'circumstances

present and unexplained which . . . reasonably justify an inference that it was

done with a consciousness of guilt and pursuant to an effort to avoid an

accusation based on that guilt.'" State v. Latney, 415 N.J. Super. 169, 175-76

A-0313-18T1
12
(App. Div. 2010) (alteration in original) (quoting State v. Mann, 132 N.J. 410,

418-19 (1993)). For the circumstances to justify the inference and provide a

legal basis for the flight charge, the circumstances need not constitute

unequivocal proof of a consciousness of guilt. State v. Ingram, 196 N.J. 23, 46

(2008) (citing State v. Wilson, 57 N.J. 39, 49 (1970)). However, while the

evidence of flight need not be unequivocal, it "must be intrinsically indicative

of a consciousness of guilt." State v. Randolph, 228 N.J. 566, 595 (2017)

(citation and internal quotation marks omitted).

"Departure from the scene after a crime has been committed, of itself, does

not warrant an inference of guilt." State v. Sullivan, 43 N.J. 209, 238 (1964).

"For departure to take on the legal significance of flight, there must be

circumstances present and unexplained which, in conjunction with the leaving,

reasonably justify an inference that it was done with a consciousness of guilt

and pursuant to an effort to avoid an accusation based on that guilt." Ingram,

196 N.J. at 46 (quoting Mann, 132 N.J. at 418-19). Thus, a jury must be able to

find departure and "the motive which would turn the departure into flight."

Wilson, 57 N.J. at 49.

Our Supreme Court has instructed that "[t]he potential for prejudice to

the defendant and the marginal probative value of evidence of flight or escape

A-0313-18T1
13
mandate careful consideration of the nature of the evidence to be admitted

and the manner in which it is presented." Mann, 132 N.J. at 420. "In such

cases, the Court has mandated 'a strong limiting instruction . . . informing the

jury that it should not draw any inference of consciousness of guilt by

defendant from his post-crime conduct unless it believes that defendant acted

to cover up a crime.'" State v. Cole, 229 N.J. 430, 454 (2017) (alteration in

original) (quoting State v. Williams, 190 N.J. 114, 134 (2007)). On the other

hand, the Court has acknowledged that the "total exclusion of [highly

prejudicial but probative] evidence is error where prejudice can be minimized

through limiting instructions or other means." Id. at 455 (quoting Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5 on N.J.R.E. 403

(2016)).

Thus, the propriety of admitting the evidence and delivering a flight

charge

depends upon the degree of confidence with which four
inferences can be drawn: (1) from the defendant's
behavior to flight; (2) from flight to consciousness of
guilt; (3) from consciousness of guilt to consciousness
of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to
actual guilt of the crime charged.

[Latney, 415 N.J. Super. at 176 (emphasis omitted)
(quoting Mann, 132 N.J. at 420).]

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 Here, defendant's departure from the scene was undisputed. Although

defendant denied stabbing anyone and explained that he drove off to escape the

angry mob attacking him, based on the State's proofs, after stabbing the two

victims, defendant forcibly removed Gunter's hand from the gearshift, shoved

her out of the car, and took off, leaving her on the ground bleeding and without

any regard for her safety. Further, defendant did not promptly report his

purported victimization to police, explaining that he did not want to be involved

because he was on probation. Defendant only claimed he was a victim when

police contacted him about the incident the following day.

We are satisfied there was substantial evidence of "unexplained

circumstances" beyond mere departure which reasonably supported an inference

that defendant fled with a consciousness of guilt. While the jury could have

inferred that defendant departed out of fear of being injured or killed by the mob,

it could also readily infer that he fled the scene to avoid apprehension and

thereby exhibited consciousness of guilt. Indeed, it is not necessary that the

circumstances accompanying departure constitute unequivocal proof of

consciousness of guilt. Ingram, 196 N.J. at 46 (citing Wilson, 57 N.J. at 49 ("A

jury may infer that a defendant fled from the scene of a crime by finding that he

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15
departed with an intent to avoid apprehension for that crime. It is not necessary

that he flee from custody or that he be found hiding.")).

The fact that evidence supported alternative reasons for defendant's

departure from the scene does not rule out an instruction on flight or render its

issuance impermissible. The State requested the charge and the judge agreed to

give it over defense counsel's objection. Although defense counsel objected to

including the charge, even he candidly acknowledged that "if . . . asked," the

judge "ha[d] to charge . . . it[]." Given the equally plausible reasons for

defendant's departure from the scene, the judge was justified in giving a flight

instruction, and appropriately instructed the jury as to what inferences could be

drawn from the flight evidence depending upon how it resolved the factual

dispute. Thus, we discern no abuse of discretion in the judge's decision to give

a flight instruction based on our "careful consideration" of "[t]he potential for

prejudice" to defendant and the "probative value" of the flight evidence. Mann,

132 N.J. at 420.

For the first time on appeal, defendant challenges the actual flight charge

given by the judge. Because defendant failed to object to the language in the

charge at trial, we review the claim under the plain error standard. Plain error

is that which is "clearly capable of producing an unjust result." State v.

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16
Whitaker, 200 N.J. 444, 465 (2009) (quoting R. 2:10-2). In applying that

standard to an erroneous jury instruction, we examine the record to determine

whether "legal impropriety in the charge prejudicially affect[ed] the substantial

rights of the defendant and [was] sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538

(1969); see also State v. Nero, 195 N.J. 397, 407 (2008).

The charge given by the judge, which substantially tracked the model jury

charge on flight, Model Jury Charge (Criminal), "Flight" (rev. May 10, 2010),

was as follows:

There has been some testimony in the case from
which you may infer that the defendant fled shortly
after the alleged commission of the crime. The
defendant denies that the acts constituted flight. The
question of whether the defendant fled after the
commission of the crime is another question of fact for
your determination.

Mere departure from a place where a crime has
been committed does not constitute flight. If you find
that the defendant, fearing that an accusation or arrest
would be made against him on the charge involved in
the indictment, took refuge in flight for the purpose of
evading the accusation or arrest on that charge, then
you may consider such flight in connection with all the
other evidence in the case, as an indication or proof of
consciousness of guilt.

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 Flight may only be considered as evidence of
consciousness of guilt if you should determine that the
defendant's purpose in leaving was to evade accusation
or arrest for the offense charged in the indictment.

Defendant argues the judge's flight charge was "inadequate." According

to defendant, the judge's "omission of defendant's explanation left the jury

without any judicial guidance on the proper context in which to consider the

evidence of flight." Although defendant never requested it at trial, the portion

of the model jury charge defendant now asserts should have been given by the

judge provides:

There has been some testimony in the case from which
you may infer that the defendant fled shortly after the
alleged commission of the crime. The defense has
suggested the following explanation:

(SET FORTH EXPLANATION SUGGESTED BY
DEFENSE)

If you find the defendant's explanation credible, you
should not draw any inference of the defendant's
consciousness of guilt from the defendant's departure.

[Ibid.]

It is axiomatic that "[a]ppropriate and proper charges are essential for a

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish,

181 N.J. 553, 613 (2004) (alteration in original)). Proper instructions consist of

"a comprehensible explanation of the questions that the jury must determine,

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including the law of the case applicable to the facts that the jury may find." Id.

at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "[T]he court has

an 'independent duty . . . to ensure that the jurors receive accurate instructions

on the law as it pertains to the facts and issues of each case, irrespective of the

particular language suggested by either party.'" Ibid. (alteration in original)

(quoting Reddish, 181 N.J. at 613); see also State v. Scharf, 225 N.J. 547, 580

(2016).

"Because proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the capacity to unfairly

prejudice the defendant." Baum, 224 N.J. at 159 (quoting State v. Bunch, 180

N.J. 534, 541-42 (2004)); see also State v. McKinney, 223 N.J. 475, 495 (2015).

However, when there was no objection to the charge, as here, we "presum[e]

that the charge was not error and was unlikely to prejudice the defendant's case."

State v. Young, 448 N.J. Super. 206, 224-25 (App. Div. 2017) (alteration in

original) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).

A jury "charge must be read as a whole in determining whether there was

any error," State v. Torres, 183 N.J. 554, 564 (2005), and the effect of any error

"must be evaluated in light 'of the overall strength of the State's case ,'" State v.

Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289

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(2006)). "There is no reversible error 'where the charge, considered as a whole,

adequately conveys the law and is unlikely to confuse or mislead the jury, even

though part of the charge, standing alone, might be incorrect.'" Mogull v. CB

Commercial Real Estate Grp., Inc., 162 N.J. 449, 464 (2000) (quoting Fischer

v. Canario, 143 N.J. 235, 254 (1996)).

Pertinent to the issue raised on appeal, "[a]n adequate [flight] instruction

would require the jury first to find that there was a departure, and then to find a

motive for the departure, such as an attempt to avoid arrest or prosecution, that

would turn the departure into flight." Mann, 132 N.J. at 421. When a defendant

offers an explanation for his departure, "the trial court should instruct the jury

that if it finds the defendant's explanation credible, it should not draw any

inference of the defendant's consciousness of guilt from the defendant's

departure." Ibid.

In State v. Leak, we acknowledged that "[t]he charge delivered . . . was

poor in that it did not clearly apprise the jury that if they credited the explanation

of any of the defendants for his or her flight . . . , they should not draw any

inference relative to guilt against such defendant." 128 N.J. Super. 212, 217

(App. Div. 1974). However, "on the case as a whole," we concluded that the

charge had no "prejudicial effect" to warrant reversal of the convictions because

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"the jury probably drew that meaning from the portion of the charge wherein it

was informed by the court that it should 'consider' defendants' 'explanation . . .

as to why they considered the actions and did certain things at that particular

time.'" Ibid.

Here, we agree with defendant that the judge erred in omitting his

explanation for his departure in the flight charge. The judge should have advised

the jury of defendant's alternative explanation that was supported by the

evidence. However, like Leak, we conclude that the charge withstands plain

error scrutiny because the jury heard the explanation when defendant testified,

and the jury probably drew the requisite meaning from the judge's instruction

that "defendant denie[d] that the acts constituted flight," that "[m]ere departure

from a place where a crime has been committed does not constitute flight," and

that "[f]light may only be considered as evidence of consciousness of guilt if

[the jury] should determine that the defendant's purpose in leaving was to evade

accusation or arrest for the offense charged in the indictment." When considered

as a whole, the charge, while "poor," ibid., conveyed the essential principle that

the jury must first "find that there was a departure," and then determine the

"motive for the departure, such as an attempt to avoid arrest or prosecution, that

would turn the departure into flight." Mann, 132 N.J. at 421. Thus, we are

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satisfied that the omission of defendant's explanation for fleeing the scene was

not clearly capable of producing an unjust result.

Defendant also argues for the first time on appeal that "[t]he State's

untimely request" for the flight charge as well as "the State's unexpected

prejudicial comments regarding flight" during its summation "unfairly

prejudiced defendant and amounted to reversible error." In its summation, the

prosecutor commented:

Also, you can consider the defendant's conduct
immediately after the incident to find purpose. And I
submit to you, ladies and gentlemen, he fled and that,
you can infer consciousness of guilt. He did[ not] say,
oh, my gosh, I just stabbed somebody after the first
stab. He did[ not] say, oh, my gosh, I just stabbed you
again after the second or, oh, no, a third time. No, he
fled, ladies and gentlemen. He fled. He did[ not] call
911. He did[ not] say, hey, there was an incident, there
was an accident, something happened, someone[ is]
bleeding. He left.

"Prosecutors may not make inaccurate factual or legal assertions during

summation, and they must confine their remarks to evidence revealed during

trial, and reasonable inferences to be drawn from the evidence." State v.

Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003) (citing State v. Smith, 167

N.J. 158, 178 (2001)). "If no objection is made, the remarks usually will not be

deemed prejudicial." State v. Ramseur, 106 N.J. 123, 323 (1987).

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 Here, we are satisfied the prosecutor's remarks were factually and legally

supported by the evidence adduced at trial. The absence of any objection when

the remarks were made underscores our conclusion that the remarks were proper,

and not deemed prejudicial by defense counsel at the time. See State v.

Timmendequas, 161 N.J. 515, 575 (1999) ("To justify reversal, the prosecutor's

conduct must have been 'clearly and unmistakably improper,' and must have

substantially prejudiced defendant's fundamental right to have a jury fairly

evaluate the merits of his defense.").

More troubling is the timing of the prosecutor's request for the flight

charge. Following summations, the prosecutor requested that the flight charge

be included during a charge conference conducted immediately prior to the final

charge. A prior charge conference had been conducted after the defense rested

its case the day before. While defense counsel objected to including the charge,

he did not object to the timing of the request or seek any remedial action. The

judge noted that he was "not surprised by th[e] request" and agreed to include

flight in the final charge.

Rule 1:8-7(b) provides:

Prior to closing arguments, the court shall hold a charge
conference on the record in all criminal cases. . . . At
the conference the court shall advise counsel of the
offenses, defenses and other legal issues to be charged

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23
 and shall rule on requests made by counsel. . . . Any
party, at or before commencement of trial, may submit
written requests that the court instruct the jury on the
law as set forth in the requests. As to issues not
anticipated prior to trial, any party may submit written
requests before closing arguments.

Where the court decides sua sponte or grants a request to charge the jury

on a new charge after the completion of summations, "counsel should be

afforded an opportunity to make responsive supplemental closing statements."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3 on R. 1:8-7 (2019). See

also State v. Rovito, 99 N.J. 581, 588 (1985) (holding that "[a]lthough the better

practice is for the court to resolve all questions about the proposed charge before

summations," the court's decision to "permit counsel to conform their

summations to the charge" was consistent with the spirit of Rule 1:8-7).

Here, contrary to Rule 1:8-7(b), the State did not request the flight charge

until after closing arguments. Additionally, the judge did not offer defense

counsel an opportunity to supplement his summation. See State v. Hakim, 205

N.J. Super. 385, 389 (App. Div. 1985) (pointing out that Rule 1:8-7 allows "the

parties [to] prepare to comment on the [new] issue . . . during summations.").

However, we are persuaded that the error does not constitute plain error in the

circumstances of this case. Throughout the trial, both the State and defendant

presented evidence regarding defendant's departure from the scene. Indeed, the

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24
crux of the defense was that defendant had nothing to do with the stabbings and

departed the scene to escape an angry mob. Consequently, inasmuch as the

flight charge was amply supported by the evidence, we are satisfied defendant

was neither surprised nor prejudiced by the State's request, and the error was not

"of such a nature as to have been clearly capable of producing an unjust result."

R. 2:10-2.

In Point Three, defendant argues that the judge's "failure to instruct the

jury on the limited purpose for which his prior convictions could be used"

constituted reversible error. According to defendant, without the instruction,

the jury did not "underst[an]d the limited use of defendant's prior convictions as

evidence only of his credibility and not of his criminal disposition."

Following a pre-trial Sands/Brunson 6 hearing, the judge ruled that

defendant's 2002 conviction for a third-degree drug distribution offense, for

which "defendant received a four-year probationary sentence," and his 2013

conviction for third-degree "insurance fraud" were admissible if defendant

elected to testify at trial pursuant to N.J.R.E. 609, permitting the admission of a

witness's prior conviction for impeachment purposes. The judge determined that

6
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
A-0313-18T1
25
while the former conviction was subject to "sanitization," the latter was not as

it "involved a crime of dishonesty, lack of v[e]racity, or fraud."

At trial, questioning on defendant's prior convictions was limited to the

following colloquy during defendant's direct examination:

[Defense counsel:] . . . [Y]ou have a third[-]degree
conviction back in 2002. Is that correct, sir?

[Defendant:] Yes.

[Defense counsel:] And you also have a fraud
conviction in 2013, that you received probation on, a
third[-]degree offense as well. Is that correct?

[Defendant:] Yes.

The prosecutor did not cross-examine defendant on the prior convictions to

impeach his credibility, and neither party commented on the convictions during

summations.

Because defense counsel neither requested the limiting instruction nor

objected to its omission at trial, we review this issue under a plain error standard.

See State v. R.K., 220 N.J. 444, 456 (2015) ("When a defendant fails to object

to an . . . omitted limiting instruction, it is viewed under the plain-error rule,

[t]hus, the error will be disregarded unless a reasonable doubt has been raised

whether the jury came to a result that it otherwise might not have reached." (first

citing R. 2:10-2, then citing State v. Daniels, 182 N.J. 80, 95 (2004))).

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26
 "Where evidence is admitted for specific use only, the judge must so

instruct the jury." Pressler & Verniero, cmt. 9.3 on R. 1:8-7. The Brunson Court

"[r]ecogniz[ed] that a jury might use a prior conviction as evidence of a

defendant's criminal disposition and not as evidence probative of a defendant's

credibility." 132 N.J. at 390. In order to mitigate the prejudice, the Court

reiterated that "the trial court must explain carefully to the jury the limited

purpose of prior-conviction evidence." Id. at 385 (citing Sands, 76 N.J. at 142

n.3). However, in other contexts, the Court has noted that "while a court must

give a limiting instruction, if warranted, despite the lack of a request," there is

no requirement that "a court should provide an instruction despite a party's

calculated decision to waive it." State v. Brown, 138 N.J. 481, 535 (1994),

overruled on other grounds, State v. Cooper, 151 N.J. 326, 377 (1997).

Here, we are convinced that the omission of the limiting instruction does

not rise to the level of plain error. First, because the prosecutor did not cross-

examine defendant on the prior convictions, it is likely defense counsel did not

request a limiting instruction as a matter of strategy to avoid drawing attention

to them. Secondly, neither conviction was substantially similar to the charges

being tried. See Brunson, 132 N.J. at 391 (noting that "[t]he introduction into

evidence of a similar prior conviction to impeach a testifying defendant is

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27
doubtless highly prejudicial, and that prejudice is unlikely to be cured by a

limiting instruction").

Finally, both victims had prior criminal convictions that were also

presented to the jury. In 2012, Lubin was convicted of "fourth[-]degree"

"hindering," for which he received a one-year probationary sentence. In 2015,

he was convicted of "fourth[-]degree" operating a motor vehicle "while [his]

license was suspended for a second or subsequent" driving while intoxicated

violation, for which he served a "six[-]month[]" jail sentence. As to Pasqualini,

in 2010, he was convicted of "unlawful possession of a weapon" and was

"sentenced to a one-year probationary term." In October 2015, he was

"sentenced to another one-year probationary term for receiving stolen property,

[third-degree] unlawful possession of a rifle, . . . and possession with intent to

distribute [controlled dangerous substances]." In December 2015, he

"receive[d] two years['] probation for a burglary and a theft."

Under these circumstances, we cannot conclude that the judge's failure to

give a limiting instruction sua sponte warrants reversal of the convict ions. See

State v. Morton, 155 N.J. 383, 452 (1998) (finding no "plain error in the court's

failure to provide a limiting instruction dealing specifically with defendant's

plans to [commit other crimes]"); State v. Nelson, 318 N.J. Super. 242, 254

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(App. Div. 1999) ("When, as here, a limiting instruction should have been given,

even though it was not requested, the 'failure to do so is not per se plain

error . . . .'" quoting State v. Allison, 208 N.J. Super. 9, 18 (App. Div. 1985));

State v. Montesano, 298 N.J. Super. 597, 617-18 (App. Div. 1997) (finding no

plain error where court failed to give a limiting instruction sua sponte that the

co-defendant's voluntary written statement could not be used against defendant).

In Point Four, defendant argues for the first time on appeal that the judge

erred by "not instruct[ing] the jury on self-defense." According to defendant,

because "[a]rguably Pasqualini and Lubin were the aggressors," all three were

"bloodied," and no one ever "observe[d] defendant with a knife," "a rational

basis exist[ed]" to support the charge.

"If a 'self-defense charge is requested and supported by some evidence in

the record, it must be given.'" State v. Fowler, 239 N.J. 171, 185 (2019) (quoting

State v. Rodriguez, 195 N.J. 165, 174 (2008)). "However, absent a request from

the parties, 'evidence must "clearly indicate[]" such a defense' to warrant a self -

defense instruction." Ibid. (alteration in original) (quoting State v. Galicia, 210

N.J. 364, 390-91 (2012)). Cf. State v. Gentry, 439 N.J. Super. 57, 63 (App. Div.

2015) (holding that a self-defense instruction is required, even when not

requested, where the evidence indicates a rational basis for instructing it).

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29
 "[U]nder the Criminal Code 'the use of force upon or toward another

person is justifiable when the actor reasonably believes that such force is

immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person on the present occasion.'" Fowler, 239 N.J.

at 185 (emphasis omitted) (quoting N.J.S.A. 2C:3-4(a)).7 Viewed in a light most

favorable to the defendant, if such evidence is present, "then the jury must be

instructed that the State is required to prove beyond a reasonable doubt that the

self-defense claim does not accord with the facts[, and] acquittal is required if

there remains a reasonable doubt whether the defendant acted in self-defense."

State v. Kelly, 97 N.J. 178, 200 (1984).

Here, defendant unequivocally denied stabbing Lubin or Pasqualini,

denied having any physical altercation with either, and denied possessing a knife

on the night in question. Defendant's account was corroborated by Waller.

Given this defense, which is entirely incompatible with a claim of self-defense,

we find no reversible error in the judge's failure to charge self-defense in the

absence of a request by defense counsel or an objection to its omission . "Trial

courts must carefully refrain from preempting defense counsel's strategic and

7
Notably, defendant never served the State with the notice required under Rule
3:12-1, when "the defendant intends to rely on . . . [g]eneral [p]rinciples of
[j]ustification," including self-defense pursuant to N.J.S.A. 2C:3-4.
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30
tactical decisions and possibly prejudicing defendant's chance of acquittal."

State v. Perry, 124 N.J. 128, 162 (1991). Here, as in Perry, "in the face of non-

compatible defense strategy, we cannot conclude that the trial court committed

plain error in not charging self-defense sua sponte." Ibid.

In Point Five, defendant argues that the judge's "denial of [his] new trial

motion should be reversed." Relying on "contradictions" in some of the

testimony, defendant asserts that the "jury verdict was against the weight of the

evidence." We disagree.

Rule 3:20-1 provides:

The trial judge shall not . . . set aside the verdict of the
jury as against the weight of the evidence unless,
having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a manifest
denial of justice under the law.

So long as a "trier of fact could rationally have found beyond a reasonable doubt

that the essential elements of the crime were present" based on the evidence in

the record, a miscarriage of justice has not occurred and a defendant's motion

for a new trial should be denied. State v. Smith, 262 N.J. Super. 487, 512 (App.

Div. 1993) (quoting State v. Carter, 91 N.J. 86, 96 (1982)).

"The trial court's ruling on . . . a motion [for a new trial] shall not be

reversed unless it clearly appears that there was a miscarriage of justice under

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31
the law." R. 2:10-1. Moreover, "[w]here the jury's verdict was grounded on its

assessment of witness credibility, a reviewing court may not intercede, ab sent

clear evidence on the face of the record that the jury was mistaken or

prejudiced." Smith, 262 N.J. Super. at 512. Indeed, we "may not overturn the

verdict 'merely because [we] might have found otherwise upon the same

evidence.'" Ibid. (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.

1985)). "Appellate intervention is warranted only to correct an 'injustice

resulting from a plain and obvious failure of the jury to perform its function. '"

Ibid. (quoting Johnson, 203 N.J. Super. at 134).

In denying defendant's motion for a new trial, the judge explained:

I find that the jury was not a jury that did not consider
the possible contradiction in some of the testimony.

Clearly, in any trial, particularly in a case where
there . . . were a lot of people[,] . . . there were a lot of
different views . . . expressed as to exactly what
happened, but I think the jury was able to consider any
possible contradictions in the testimony, weigh those
contradictions and find a verdict that was, in fact, not
against the weight of the evidence. . . . They were able
to assess the demeanor of the witnesses and determine
their credibility, and I find that they had every right to
come to the verdict that they did.

I also compliment [defense counsel] on his
summation because he brought all of those things to the
jury and discussed them with the jury and allowed them
to consider, from a defendant's standpoint, in a very

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32
 professional and competent way. And I think that that
also indicates . . . that the jury was able to consider . . .
both the defense's . . . perspective . . . and the State's
perspective and came out with a fair and just verdict in
this case . . . .

We discern no miscarriage of justice to warrant setting aside the verdict

for the reasons cogently articulated by the judge. The jury had a rational basis

to find the essential elements of the crimes charged beyond a reasonable doubt

based on the evidence presented at trial, and we reject defendant's arguments to

the contrary.

Finally, in Point Six, defendant challenges his sentence, arguing the judge

erred in not finding mitigating factor five, N.J.S.A. 2C:44-1(b)(5), based on

"one, or both, victims facilitat[ing] the commission of the crimes" by "act[ing]

as the aggressors." We disagree.

"Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). We will

affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."

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33
 [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

At sentencing, based on defendant's prior criminal history, substance

abuse issues, the nature of the charges, and the injuries inflicted on the victims,

the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("risk that . . .

defendant will commit another offense"), and nine, N.J.S.A. 2C:44-1(a)(9)

("need for deterring . . . defendant and others from violating the law"). Because

defendant had "four children," the judge found mitigating factor eleven, N.J.S.A.

2C:44-1(b)(11) ("imprisonment of . . . defendant would entail excessive

hardship to [defendant] or his dependents").

Despite defense counsel's assertion that defendant suffered from "several

maladies," including "narcolepsy," "[a]ttention [d]eficit [d]isorder," and "a heart

attack" sustained shortly before the trial began, the judge expressly rejected

defendant's arguments regarding the applicability of mitigating factors three,

N.J.S.A. 2C:44-1(b)(3) ("defendant acted under a strong provocation"); four,

N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or

justify . . . defendant's conduct, though failing to establish a defense"); six,

N.J.S.A. 2C:44-1(b)(6) ("defendant has compensated or will compensate the

victim of his conduct for the damage or injury that he sustained"); or eight,

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34
N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances

unlikely to recur"). Based on the weighing of the factors, the judge determined

"the aggravating factors . . . totally outweigh[ed]" the sole mitigating factor.

Applying our deferential standard of review, contrary to defendant's

contention, we are satisfied that the judge's findings regarding aggravating and

mitigating factors are amply supported by the record, that the sentence imposed

was in accordance with guidelines enunciated in the Code of Criminal Justice,

and that the aggregate sentence is not manifestly excessive or unduly punitive,

and does not constitute an abuse of discretion or shock our judicial conscience.

Affirmed.

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