STATE OF NEW JERSEY VS. FIRICIN AUGUSTIN STATE OF NEW JERSEY VS. GREGORY TORRES (15-06-0468, UNION COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-5864-17
A-2506-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FIRICIN AUGUSTIN, a/k/a
FIRICIAN AUGUSTIN,
FIRICON AUGSTIN,
FIRICIN AUGUSTINE, and
FIRICIN AUGUSTIN, JR.,

Defendant-Appellant.
_________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY TORRES,

Defendant-Appellant.
_________________________

Submitted September 28, 2021 – Decided October 26, 2021
 Before Judges Fisher, Currier, and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-06-0468.

Joseph E. Krakora, Public Defender, attorney for
appellant Firicin Augustin (Andrew R. Burroughs,
Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for
appellant Gregory Torres (Ruth E. Hunter, Designated
Counsel, on the brief).

Appellant Gregory Torres filed a pro se supplemental
brief.

William A. Daniel, Union County Prosecutor, attorney
for respondent (Michele C. Buckley, Assistant
Prosecutor, of counsel and on the briefs).

PER CURIAM

Defendants Gregory Torres, Firicin Augustin, and Jamar Mosby were

indicted and charged with the first-degree murder of Bilal Fullman, N.J.S.A.

2C:11-3(a), second-degree unlawful possession of a weapon (handgun),

N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a). Defendants were tried together. At the conclusion

of a lengthy trial that started in February and ended in April 2018, a jury

convicted Torres of all the charged offenses and convicted Augustin of unlawful

possession of a weapon. Mosby was acquitted. After denying the convicted

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defendants' motions for a judgment of acquittal or a new trial, the trial judge

sentenced Torres to a fifty-year prison term subject to an eighty-five percent

period of parole ineligibility, to run consecutively to an unrelated prison term

he was already serving, and Augustin was sentenced to a nine-year prison term

subject to fifty-four months of parole ineligibility, also ordered to run

consecutively to a prison term he was serving for an unrelated weapons offense.

Torres and Augustin separately appeal their convictions and the sentences

imposed. Because they raise some of the same issues – they both argue the trial

judge should have ordered a mistrial when a witness gave testimony that

suggested they sold drugs at the building where the crimes took place, and they

both argue the judge should have granted their motions for acquittal and a new

trial – we scheduled these appeals back-to-back and now rule on them by way

of this one opinion. For the reasons that follow, we affirm the convictions but

remand for reconsideration of one aspect of the sentences imposed on both.

I

A

The crimes with which defendants were charged took place on December

12, 2014, at an Elizabeth apartment building known as Pierce Manor – a place,

according to the testimony of several witnesses, where residents and others hung

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out in the building's hallways and lobby, often smoking and "doing drugs."

Some witnesses also said that dealers, including Bilal Fullman, regularly sold

drugs at Pierce Manor.

Tyrone Dozier, a Pierce Manor regular, testified Fullman was "like

family" to him. Even though they were competitors, Dozier explained that

people at Pierce Manor "[stuck] together" and did not report each other's illegal

dealings to police. Dozier said "strangers" didn't usually hang around in the

building and would not have been welcome because they were not "from there."

Zumirah Brockington was the mother of Fullman's child. She and the

child lived in Cherry Hill but regularly traveled to Elizabeth to visit Fullman.

On December 12, 2014, when Fullman picked up Brockington at the train station

around noon, he told her he wasn't feeling well. After going to the doctor,

Fullman, Brockington, and the child took a cab to Pierce Manor. Once there, at

around 5:30 to 6:00 p.m., they visited Fullman's grandmother, who lived in the

building, and later went to the apartment of Stephanie Dozier, a friend of

Fullman's. Stephanie Dozier1 testified they arrived around 6:30 p.m. About

forty-five minutes later, Stephanie and Fullman left the apartment to take

1
We refer to all witnesses by their last names with the exception of Stephanie
Dozier, who we refer to as Stephanie to avoid confusion with Tyrone Dozier.
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Stephanie's cat outside; Stephanie returned upstairs while Fullman remained

outside. Stephanie testified she did not see anyone else in front of the building

when she and Fullman parted. She also saw between ten and twenty people she

did not recognize in the downstairs hallway.

Around that same time, Raheem Wilkins, a Pierce Manor resident, spoke

with Fullman outside the building as Wilkins left with his girlfriend, Belinda

Best. Wilkins testified that on his way out, he saw and greeted several people in

the downstairs hallway of Pierce Manor, including Mosby, Augustin, Jumani

Terrell, and Dozier. Best testified she talked to Fullman and saw Mosby,

Mosby's brother Sutton West, Dozier, and others. Another Pierce Manor

resident, Shamal Lee, passed through the lobby of the building on his way

upstairs and saw several people there including Fullman, Augustin, West,

Terrell, Michael Thompkins, and possibly Dozier.

Later, Fullman went upstairs and briefly talked to Brockington; he

declined to go with her to a Chinese restaurant and went outside again.

Brockington returned twenty minutes later and saw Fullman standing outside

Pierce Manor. Brockington testified that Augustin was standing about ten feet

away from Fullman, and that the two were arguing as she approached. She heard

Augustin tell Fullman to "look at his gun" as he lifted his shirt; Brockington saw

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the handle of a "black and silver" gun sticking out of Augustin's waistband.

According to Brockington, Fullman said, "I don't care, I don't want to see [that]

little shit anyway," and asked Augustin what kind of gun it was. Augustin replied

that it was "a .40," and said, "but it kick up, though." Brockington explained that

she thought Augustin meant that the gun "work[ed]."

Fullman and Brockington walked into the vestibule. Augustin followed

and continued to argue with Fullman. Brockington testified that she saw Torres

and Mosby, in the hallway, along with several others. She said Fullman took off

his jacket and asked her to "hold his stuff" because Augustin "[kept] fucking

with [him]" and he "want[ed] to fight." Augustin backed away, saying, "I'm not

going to fight you" and then asked Brockington, who was still holding her

purchase from the Chinese restaurant, for "a piece of [her] chicken." When

Brockington acceded, Fullman "got mad" and told her to go back upstairs.

Fullman and Augustin were still arguing when Brockington got to the elevator .

Brockington waited upstairs but called Fullman at 8:17 p.m. to tell him she

wanted to leave Pierce Manor. Fullman said he was "still waiting on a person to

bring him the money" and once that happened they could go.

Dozier testified that at around 8:00 p.m. on December 12, 2014, he was in

the lobby of Pierce Manor "counting [his] drugs." He saw Fullman standing by

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the front door looking outside, and he saw Torres, Augustin, Mosby, and a few

others "hanging out" in the vestibule and lobby area. Dozier said he was standing

across the lobby from Fullman and defendants, a little way down the first-floor

hallway, but that he could see into the lobby when he looked up from his

counting.

Dozier said defendants were wearing black clothing and ski masks, but

the masks weren't covering their faces. He knew them from "around the

neighborhood" and did not think their presence at Pierce Manor was odd

"because they [were] from there," meaning they often hung around at the

building. Dozier said that while he was initially watching, he did not see

defendants acting "strange," and did not see them talk or argue with Fullman.

Dozier testified that, suddenly, he heard "shots go off" and looked up to

see "which direction [they were] coming from." He said, "[t]hat's when I saw

them, the three people with the guns." When asked to clarify, he said he saw the

three defendants all holding guns, and Fullman "on the ground." He said he

could clearly see defendants' faces. According to Dozier, everyone else in the

lobby ran away, and he "heard more shots" as he "took off."

Dozier went outside through a nearby "side door," ran in a circle around

two other apartment buildings in the complex and then stopped to look "down"

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at Pierce Manor. He noticed the door he had exited through was "still open," and

he "went down there to see like what was up." He found Fullman on the floor in

the vestibule between the two sets of entry doors to the building. Two men,

Thompkins and Terrell, were "checking [Fullman's] pockets." Dozier saw the

two take a gun and drugs out of Fullman's pocket and run away. After that,

Dozier "closed [Fullman's] eyes" and waited by the body until police arrived a

few minutes later.

Brockington testified that Thompkins knocked on the door of Stephanie

Dozier's apartment "ten minutes" after her 8:17 p.m. phone call with Fullman.

Stephanie went to the living room, where she saw Brockington, the children,

Thompkins, and Thompkins's mother, Crystal Harvey. When Thompkins said

Fullman "got shot," Stephanie, Brockington, and Harvey went downstairs,

where they saw Fullman's body in a pool of blood in the vestibule. Brockington

and Stephanie testified they saw no other "civilians" in the hallway area. Police

ordered the women to stay back to avoid touching evidence. Brockington and

Stephanie returned to the latter's apartment.

Twenty or thirty minutes later, officers came upstairs and asked

Brockington to bring her child and come with them. An officer took Brockington

and her son to Fullman's grandmother's apartment, where they stayed until her

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mother arrived to get the child and a detective came to take her to the Union

County Prosecutor's Office to give a statement. Stephanie said that "a little while

later," someone came to her door and took her to the Prosecutor's Office, where

she also gave a statement.

B

The jury heard testimony about what happened after the shooting.

Brockington testified that a few nights later, on December 15, 2014, around 3:00

a.m., she received a phone call from someone who did not identify himself but

whom she knew to be Augustin because he said, "[w]hen you gave me a piece

of chicken, I left." Brockington asked Augustin if he knew what had happened

to Fullman, and Augustin repeated that he (Augustin) "had left." Augustin then

asked her if she saw "the people that shot [Fullman]" and she said, "yeah"; when

Augustin asked again she told him she was in the building but did not see the

shooting. Augustin said he had been "looking for" her that day. When she asked

how he could have looked for her if he took the chicken and "left," Augustin

hung up. Later that day, Brockington gave another statement to police telling

them about the call and giving more details about the events of December 12,

including the previously unrevealed argument between Augustin and Fullman.

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 On December 16, 2014 – four days after Fullman's death – Dozier was

picked up by police on unrelated charges and taken to the Prosecutor's Office

where he gave a statement about the shooting; he did not name the gunmen.

Dozier was arrested again on January 5, 2015, on another unrelated charge and

gave a second statement in which he said defendants shot Fullman. He also

identified Mosby, Torres, and Augustin in a photo array.

Dozier testified at trial that he did not initially tell detectives defendants

were the shooters because he was "scared" but, by January, he "felt like it was

the right thing to do." Dozier said he did not expect to "get anything" in return

but thought he would be "protected." Detective Sergeant Johnny Ho, the lead

investigator, interviewed Dozier both times. He testified he told Dozier "from

the very beginning" that he did not have any authority to "do anything" for him.

On April 1, 2016, Dozier spoke to Mosby's counsel and told him he had

lied in his January 6, 2015 statement and wanted to "take [it] back." At trial,

however, Dozier testified he lied to the attorney and the January 6 statement was

truthful. He said he spoke to Mosby's counsel because he received a "Facebook

message" and became concerned about continuing to cooperate with the

Prosecutor's Office.

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 Michael Luciano testified that in early February 2015 his cousin – Torres

– called him and asked to stay with his family in Richmond, Virginia, for two

days. Luciano had not seen Torres for several years and happily agreed. Torres

arrived about two hours later and stayed for two-and-a-half weeks. Luciano

testified that one evening, Torres took a phone call and, when it ended, "had his

head down." He asked if anything was wrong and, after some hesitation, Torres

said "he was on the run" for "a murder"; Torres said he had gone to Pierce Manor

and killed Fullman, because it was "either him or me."

According to Luciano, U.S. Marshals "rushed" into his home the next day

with guns drawn and held him, his wife, his two sons, and Torres at gunpoint.

They arrested Torres. Luciano gave a statement the same day without revealing

that Torres talked to him about Fullman's death; he explained he withheld that

information because he was "scared" and just wanted to go home. At trial,

Luciano said he did not remember what he said when giving the statement but

maintained Torres told him he shot and killed Fullman.

C

The jury also heard forensic evidence. On December 12, 2014, officers

recovered several discharged cartridge casings and fragments of lead projectiles

from the vestibule of Pierce Manor, including casings from .25 caliber and .38

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caliber/9 millimeter bullets. Bullets of these types were also retrieved from

Fullman's body. Forensic analysis determined that all the .25 caliber bullets were

fired from one weapon, and all the .38 caliber bullets were fired from another.

Officers also found other items in the vestibule; no fingerprint or DNA

analyses were performed on these items because the vestibule was very dirty

and investigators assumed no evidence could be gleaned from them.

The testimony of a medical examiner revealed that Fullman suffered

wounds from eight bullets. There was no evidence of "close-range firing," such

as gunpowder stippling, at the entrance sites of any of the wounds.

Officers retrieved a video from the day of the shooting from a Pierce

Manor security camera located outside the building that was pointed toward its

front entrance. A portion of the video, recorded between 8:41 and 8:42 p.m. on

December 12, 2014, was played for the jury; it depicted three individuals

running out the front door of the building and in the direction of the entrance to

the apartment complex by the street. Police were unable to view video from a

security camera inside the building's downstairs hallway because the lens had

been spray-painted.

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 D

The jury received in evidence a statement given by Jumani Terrell to

Detective Sergeant Ho and Detective Sergeant Mike Manochio on January 5,

2015. At the outset, Detective Sergeant Ho explained that although Terrell had

been arrested on an unrelated charge, he wanted to talk about Fullman's death.

Ho asked Terrell whether anyone had made any promises in exchange for giving

a statement, and Terrell replied, "no." Terrell then said Fullman had been

stealing from "trap houses," or vacant apartments, where others, including

Terrell, stored drugs and guns. He also said that others were saying Fullman

"had to go" and had put a "bounty" on him because he was "a snake."

When asked what happened on December 12, 2014, Terrell said he was

"in the hallway" at Pierce Manor for a while but left to stand outside. He referred

to "Gregory," whose last name he did not know but later identified as Torres,

who "came up to [him] and peaced [him]," then walked into Pierce Manor

wearing "all black" and a ski mask. Terrell stated that Fullman "was in the

hallway at [Pierce Manor] with [Torres, who] ran up on him and shot him." He

stated that while he was outside, he heard gunshots and saw Torres and two other

masked people he could not identify run "up the side street." Terrell said he ran

back to the front entrance of Pierce Manor and discovered Fullman "dead or

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going in shock." Terrell also said that he "check[ed] up on" Fullman, and found

a gun, one hundred dollars, and a drug (promethazine) in Fullman's pockets. He

handed the gun to Thompkins, who was also there.

Terrell said he also saw Dozier; he walked with him "all the way down

through the parking lot" away from Pierce Manor. At that point, he continued

on alone and later "got high" with the promethazine he took from Fullman's

pocket. When asked how he knew Torres was the one who shot Fullman despite

not seeing the shooting itself, Terrell said Torres spoke to him earlier in the

evening and told him Fullman was "gonna go tonight," and he saw Torres was

carrying a gun. Terrell stated that a few days after the shooting he saw Torres

again and asked if someone else had killed Fullman; Torres replied "nah, it was

me," that he "ran up there [and] shot him." Torres, according to Terrell, also told

him he had gotten rid of a gun but did not say where.

When asked by Detective Sergeant Manochio whether he was "being

factual" about this account, Terrell said "one hundred ten percent." After a short

break during the interview, Terrell reaffirmed that Detective Sergeants Ho and

Manochio did not tell him anything or do anything to influence his statement.

He also said he wanted to "keep helping" the officers and was "not gonna bullshit

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[them]." Terrell stated that he "[knew] for a fact" that Torres killed Fullman,

saying, "I could tell you that one hundred percent."

Also, on January 5, 2015, Terrell was presented with a photo array and

asked if he recognized anyone in the photographs. Terrell asked the

administrating officer whether, if he signed any photos stating he recognized

someone, this information would be "seen by anybody" besides himself and the

officers. The officer advised that the signed photos would "go in the case file"

and "might go to the defendant as part of discovery" if there was any criminal

trial in the future. During this proceeding, Terrell identified a photo of Torres as

the "Greg" or "Gregory" he had referred to in his description of the events

preceding the shooting, but only that he was "sixty" percent sure. The

administrating officer prepared a written statement to the effect that Terrell said

the man in the photo was the person he saw running away from Pierce Manor

and who told him he shot Fullman. Terrell confirmed the statement was accurate

but refused to sign or place his initials on the back of the photo. Detective

Sergeants Ho and Manochio came back and asked Terrell why he did not sign

the statement or photo; he replied, "[c]ause he can get that; that's why I didn't

want to put my name on it," but he confirmed the person in the photo was the

one who told him Fullman "got to go tonight." Terrell also said he told the

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administrating officer he was only "sixty" percent sure because he "didn't want

to sign it," and he was really "a hundred percent" sure.

Detective Sergeant Ho asked Terrell whether he remembered who else

was in the hallway at Pierce Manor on the night of the shooting. Terrell said

Augustin was there and that he saw Augustin "run out." Terrell said he was

friends with Augustin and had known him "all of [his] life," and he was friends

with Torres as well. He identified a photo as depicting Augustin but also refused

to sign it because Augustin might see it if he was arrested.

On January 13, 2015, Terrell gave another statement in which he said

Augustin and Torres were in the hallway of Pierce Manor on December 12, along

with several others including Dozier, West, and West's brothers. Terrell said that

at around 8:00 p.m., he was standing outside when he heard gunshots. He saw

three people run out of the building. Torres was one of the three, but Terrell did

not recognize the others because they had masks covering their faces. He

reiterated that Torres "told [him] that he did it" afterward. Terrell again

identified a photograph as being of Augustin but refused to sign it and asked

Detective Sergeant Ho to cross his name off the photo. He said he saw Augustin

go into Pierce Manor "around the time it happened" and that Augustin had a gun.

Augustin was wearing "all black" or "dark" clothing. Terrell did not say

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conclusively that Augustin was one of the men who exited with Torres, only that

"he may have" been.

When first called to testify at trial pursuant to a subpoena, Terrell refused

to speak or answer any questions. The judge warned Terrell that a further failure

to comply would result in a contempt finding and ordered that Terrell, who was

incarcerated on an unrelated charge, be returned to jail. Terrell refused to testify

two later days, and was held in contempt. A few days later, Terrell agreed to

testify if the contempt determination was purged.

Before hearing Terrell's testimony, the judge conducted a Gross2 hearing

to determine whether the State would be permitted to play Terrell's prior

statements for the jury. Terrell testified that he gave two statements in January

2015 but "[didn't] recall" anything he had then said. He was given the

opportunity to read parts of the statements but concluded they did not refresh

his recollection. He also said he "[got] real high" before giving the statements

and "[didn't] remember a lot of things." Terrell testified that he gave "false

information" and "made up" his account of events. He said Detective Sergeant

Ho told him if he "talk[ed] about this murder," Ho would "help [him]" "get a

deal" to make some open charges "disappear." He claimed he did not recall the

2
State v. Gross, 121 N.J. 1 (1990).
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photo array procedures, and that he "recognized who Johnny Ho told [him] to

recognize." He testified that he refused to sign any photographs or documents

because he "[knew] it's bullshit."

Terrell also testified that Detective Sergeant Ho told him to "say stuff

about" Torres and Augustin and urged him during breaks to say more about

them. Terrell also said he attempted to "correct" his statements by later going to

speak to Detective Sergeant Ho again, but Ho refused to take another statement

and failed to keep his promise to help Terrell get out of jail.

Terrell also testified that he did not remember the events of December 12,

2014, that he never had any conversations with Torres about Fullman or his

death, and that he did not see Torres run away after the shooting. He said he

"hardly [knew]" Torres, had "never talked to that man," and had seen him only

once or twice in his life. Terrell also testified he saw Fullman at Pierce Manor

before his death but did not find his body or take anything from hi s pockets.

Detective Sergeant Ho testified that he never told Terrell he wanted him

to give information against defendants, that he did not make Terrell any

promises regarding other pending charges, that he had no authority to make such

a promise, and that Terrell's demeanor during his two statements did not suggest

he was under the influence.

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 E

Defendants neither testified nor called any witnesses. 3 Instead, they

presented their theory of the case by attempting to cast doubt on the witnesses'

inculpatory testimony by pointing out discrepancies between their trial

testimony and their earlier statements to police and by referencing the witnesses'

criminal records to suggest they were not law-abiding people or may have lied

to receive more favorable treatment in their own matters. Torres's counsel also

elicited testimony from Brockington that she did not know Torres well, although

she maintained she saw him in the hallway of Pierce Manor during Fullman's

argument with Augustin. Among other efforts to challenge the testimony of

witnesses, defense counsel elicited from Dozier a statement that he intentionally

gave incorrect information to prosecutors in an unrelated homicide case in the

hope that this would induce police to release his girlfriend from jail. Defendants'

cross-examination of Dozier highlighted this previous falsehood, the

inconsistencies in his statements at different times, and the possibilit y that he

may have implicated defendants to obtain some beneficial treatment in his own

matters.

3
Mosby, who was acquitted of all charges, also chose not to testify and offered
only some non-testimonial evidence.
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 In addition, the defense elicited testimony from witnesses about the other

individuals in the hallway of Pierce Manor around the time of the shooting. For

example, Dozier testified that Fullman had had "beefs," or disputes, with other

drug dealers and had stolen others' drugs.

F

As noted above, Torres was convicted of murder and the charged weapons

offenses, Augustin was convicted of unlawful possession of a weapon, and

Mosby was acquitted of all charges.

II

In appealing, both Torres and Augustin argue the trial judge erred in

refusing to grant a mistrial after Dozier, in his testimony, suggested defendants

sold drugs at Pierce Manor. They claim this testimony was improper evidence

of past or other criminality, that it was highly prejudicial, and, even if

admissible, the judge's curative instruction was insufficient. We disagree in all

respects.

The decision to grant or deny a mistrial "is entrusted to the sound

discretion" of the trial judge, who is both "in the best position to gauge the effect

of the allegedly prejudicial evidence" and entitled to deference "absent an abuse

of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117,

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205 (1997). A mistrial is "an extraordinary remedy to be exercised only when

necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J.

385, 397 (2011) (quoting Harvey, 151 N.J. at 205). In fact, if there is "an

appropriate alternative course of action," State v. Allah, 170 N.J. 269, 281

(2002), such as the use of "a curative instruction, a short adjournment or

continuance, or some other remedy," State v. Smith, 224 N.J. 36, 47 (2016), a

mistrial is not a proper exercise of discretion.

In making the decision, judges must consider that trials are "often

unpredictable," and that "even the most precise question" by an attorney "may

bring an unexpected response from a witness" that allows inadmissible evidence

to come to the jury's attention. Yough, 208 N.J. at 397. Even when improper

conduct elicits the inadmissible information, a mistrial will not be warranted

unless there is a clear showing that the defendant suffered actual harm. State v.

LaBrutto, 114 N.J. 187, 207 (1989). The information should not provoke a

mistrial if it is likely that "the results of the trial would have been the same" and

its revelation did not "deprive [the] defendant of a fair trial." State v. Camacho,

218 N.J. 533, 554-55 (2014).

A judge should also consider whether the harm caused by an inadvertent

revelation of inadmissible evidence can be alleviated by a "directive to the jury

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to disregard a prejudicial comment." State v. Winter, 96 N.J. 640, 646-47 (1984).

The adequacy of the instruction "necessarily focuses on the capacity of the

offending evidence to lead to a verdict that could not otherwise be justly

reached." Id. at 647.

Although compliance with a direction to avoid consideration of other bad

acts may prove difficult for the average juror, a curative instruction may be

sufficient if it strongly cautions against the use of the material to prove a

defendant's disposition to commit the charged offenses. State v. Stevens, 115

N.J. 289, 309 (1989). For example, in Winter, 96 N.J. at 644-49, the Court

concluded that a mistrial was unnecessary when a witness unexpectedly revealed

information the trial judge had previously ruled inadmissible. The judge struck

the offending remark and after a recess to address the defendant's mistrial

motion, "instructed the jury most emphatically to disregard" the inadvertent

testimony completely. Id. at 649. The Court found that although the stricken

testimony was prejudicial, it did not have the capacity to influence the jury to

the degree required to find that a mistrial was erroneously denied. Ibid.

Defendants' requests for a mistrial had their genesis when Dozier testified

he did not find it unusual defendants were in the lobby of Pierce Manor on

December 12, 2014, because they were "from there." When the prosecutor asked

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whether he meant that defendants lived in the building, Dozier replied, "[t]hey

be up there." Asked to further explain what he meant, Dozier said, "[h]ang

around, chill out there, sell drugs out there" (emphasis added).

Mosby's counsel immediately objected. At sidebar, the prosecutor told the

judge she "didn't anticipate" Dozier would say defendants "dealt drugs" and had

not intended to present any evidence to that effect; she asked the judge to strike

Dozier's answer and issue a curative instruction. Defendants argued a mistrial

was necessary because Dozier's answer violated their right to a fair trial by

suggesting they were engaged in another uncharged wrongdoing.

The judge denied the motions for a mistrial and said he would give a

curative instruction. Defense counsel discussed the contents of the instruction

with the judge, asking that he state that jurors were not to consider Dozier's

comment about drug dealing for any purpose, that there was no evidence that

defendants engaged in any drug transactions at Pierce Manor, and that there were

no drug-related charges in the indictment. The judge agreed and instructed the

jury as follows:

Ladies and gentlemen, the prosecutor . . . asked a
question of the witness and that question was: "Could
you explain for the jury what it means to 'be up there?'"
And the witness, Mr. Dozier said, "Hang around, chill
out there, sell drugs out there."

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 I am instructing that you disregard a portion of that
answer. You are to disregard that portion of the answer
"sell drugs out there." There is absolutely no evidence
in this case whatsoever anywhere that any of the
defendants in this case, Mr. Mosby, Mr. Augustin or
Mr. Torres ever, ever sold drugs or were in possession
of drugs, so it's not in the case. There is no evidence in
the case.

So although you heard this witness say that, I am
instructing you to disregard that answer. You cannot
consider that portion of the answer in your
deliberations. Those words, "sell drugs out there."
Disregard it. Even though you heard it, block it out of
your mind. Decide this case based on the admissible
evidence in this case and the admissible evidence only.

....

And when I say that, I mean, at Pierce Manor or
anywhere else. There is just no evidence in the case of
that, okay? You have to follow my instructions and I
know you have been thus far so just continue to do so.
Thank you.

We are satisfied that Dozier's extraneous comment did not have the

capacity to influence the jury toward a verdict it would not otherwise have

reached. Winter, 96 N.J. at 649. Like Winter, the prosecutor here did not intend

to elicit the impermissible testimony from Dozier, and the judge not only

immediately struck that testimony but forcefully instructed the jury to disregard

it as well. The court's curative instruction contained all the information

defendants requested. This instruction was sufficient to cure any prejudice, and

A-5864-17
24
therefore the trial judge did not abuse his discretion in concluding a mistrial was

unnecessary.

III

Both defendants argue the trial judge erred in denying their motions for

acquittal and a new trial. Torres argues the evidence against him, even giving

the State all beneficial inferences, was insufficient to support his convictions for

murder and weapons offenses. He asserts: (1) Brockington mainly implicated

Augustin by saying she saw Augustin with a gun; (2) Dozier was an unreliable

witness, with a motive to lie, whose statements to police and at trial differed

over time; and (3) Luciano's testimony about a purported confession was

uncorroborated. Torres also alludes to evidence that many individuals arrived

and departed from Pierce Manor around the time of the crime, contending that

the record did not establish beyond a reasonable doubt that he and not someone

else shot Fullman. Augustin argues his conviction of unlawful possession was

not supported by sufficient evidence since the State never produced the handgun

he allegedly possessed, and no bullets or casings of a caliber matching the gun

Brockington described were found at the crime scene.

Rule 2:10-1 declares that a trial judge's denial of a motion for acquittal or

a new trial "shall not be reversed unless it clearly appears that there was a

A-5864-17
25
miscarriage of justice under the law." When reviewed, deference must be given

to "the views of the trial judge, at least as to the credibility and demeanor of

witnesses and [the trial judge's] general 'feel of the case.'" State v. Muniz, 150

N.J. Super. 436, 444-45 (App. Div. 1977). We are also not to overturn a denial

of a motion for acquittal or new trial, and thereby overturn a jury verdict, merely

because the jury may have found otherwise under the same evidence. State v.

Smith, 262 N.J. Super. 487, 512 (App. Div. 1993).

Rule 3:18-1 states that a trial judge may enter a judgment of acquittal if,

at the close of either the State's case or after all evidence has been submitted,

"the evidence is insufficient to warrant a conviction." A trial judge may also, in

applying Rule 3:20-1, grant a new trial "if required in the interest of justice."

But a trial judge may not set aside a jury verdict as against the weight of the

evidence "unless, having given due regard to the opportunity of the jury to pass

upon the credibility of the witnesses, it clearly and convincingly appears that

there was a manifest denial of justice under the law." Ibid. The standards for a

motion to acquit and a motion for a new trial are "the same," Muniz, 150 N.J.

Super. at 439, and, on review, we apply the same standard as the trial court,

State v. Fuqua, 234 N.J. 583, 590 (2018).

A motion for acquittal should be denied if

A-5864-17
26
 [t]he evidence, viewed in its entirety, be it direct or
circumstantial, and giving the State the benefit of all of
its favorable testimony as well as all of the favorable
inferences which reasonably could be drawn therefrom,
is sufficient to enable a jury to find that the State's
charge has been established beyond a reasonable doubt.

[State v. Kluber, 130 N.J. Super. 336, 341-42 (App.
Div. 1974).]

The "critical inquiry" is "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. 307, 318-19 (1979). When reviewing the prosecution's case, a trial

judge must consider "only the existence" of testimony and evidence favorable

to the prosecution's position, not the "worth, nature, or extent" of such evidence.

State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (quoting Kluber,

130 N.J. Super. at 342). "No distinction is made between direct and

circumstantial evidence," and the favorable inferences that may be drawn from

the evidence "need not be established beyond a reasonable doubt." State v.

Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011).

In ruling on the motion, the trial judge must not "act[] as a factfinder."

State v. Williams, 218 N.J. 576, 595 (2014). For example, in Kluber, 130 N.J.

Super. at 341, the trial judge granted a motion to acquit by finding a witness's

A-5864-17
27
prior statement to police "should not be given any weight in view of his contrary

testimony" at trial. We reversed, finding the judge "did not apply the proper

standard" but instead "improperly weighed the evidence and disregarded the

logical inferences which reasonably could be drawn therefrom." Id. at 342.

When the State rested, defendants moved for a judgment of acquittal.

Augustin's counsel argued that the only witness who testified clearly that

Augustin was present during the shooting was Dozier, whose testimony and

prior statements to police were inconsistent. He also argued that while

Brockington testified she saw Augustin with a .40 caliber gun, the bullets or

casings retrieved from the crime scene and Fullman's body were not of that size.

Torres's counsel argued there was "no physical evidence" linking Torres to the

crime, specifically that there was "no DNA" and "no gun that was produced with

his fingerprints on it." He further contended that Luciano's testimony that Torres

confessed to a homicide was uncorroborated, Terrell's testimony undermined the

credibility of his prior statements about Torres's involvement, and Dozier's

inconsistent statements and testimony were insufficient to support a conviction.

In considering these motions, the judge found that witnesses placed each

defendant in the downstairs hallway or lobby of Pierce Manor at or near the time

of the shooting. He specifically noted that Brockington testified Augustin had a

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28
gun and argued with Fullman shortly before Fullman's death, and that Torres

was in the hallway around that time. The judge also noted that other witnesses

saw Augustin there, that Dozier testified he saw Torres, Augustin, and Mosby

all holding guns and shooting Fullman, and that Luciano testified Torres told

him he was "on the run for murder" and killed Fullman.

The judge recognized that many of the State's witnesses "at times" gave

"inconsistent testimony," and that there were "certainly issues of credibility ,"

but he hewed to the applicable standard that the State be given the benefit of all

its favorable testimony and all the favorable inferences that reasonably could be

drawn therefrom. In applying that standard, the judge concluded "a reasonable

jury could find guilt of the charges beyond a reasonable doubt, not that a jury

would, but a reasonable jury could," and denied the motions for acquittal.

Defendants renewed their motions for acquittal and moved as well for a

new trial after the jury rendered its verdict, reprising their earlier arguments.

Augustin's counsel again argued that Brockington's testimony that she saw

Augustin with a gun was uncorroborated by "ballistic evidence" and Torres's

counsel asserted that the "only real testimony" that linked Torres to Fullman's

death was Luciano's, which was uncorroborated by any other testimony or

"physical evidence." The judge again outlined all the State's evidence against

A-5864-17
29
Augustin, including Brockington's and Dozier's testimony that they saw him

with a gun, and found a jury could properly have convicted Augustin of unlawful

possession of a weapon. For Torres, the judge stated it was up to the jury to

determine the credibility of Luciano and the other witnesses who linked Torres

to Fullman's death. In further concluding the jury's verdict was not "a manifest

denial of justice," the judge denied the motions.

The trial judge applied the correct standards and soundly denied

defendants' motions. We find insufficient merit in defendants' arguments to

warrant further discussion in a written opinion. R. 2:11-3(e)(2). We add only,

with regard to Torres, that while Brockington's testimony focused on Augustin,

there was sufficient testimony from other witnesses placing Torres at the scene

of the crime and implicating him in Fullman's homicide, as outlined by the trial

judge. Although Dozier did not implicate defendants until his second statement

to police, the trial judge properly refrained from judging his credibility and

instead gave the State the benefit of the most favorable interpretation of his

statements and testimony. Luciano's testimony that Torres confessed to him that

he shot Fullman was not directly corroborated, in the sense that no one else said

they heard that particular confession, but the record also contained Terrell's prior

statement that Torres told him he was going to and then did kill Fullman, and

A-5864-17
30
Dozier's account that he saw Torres shoot the victim. Finally, although there was

testimony that others were at the crime scene, there was no evidence in the

record suggesting any of them killed Fullman. The judge was required to give

the State the benefit of all reasonable favorable inferences from the evidence,

which implicated defendants; the judge was not permitted to speculate that

perhaps another person or persons shot Fullman. In short, the judge recognized

it was for the jury to determine the credibility of the witnesses and the

persuasiveness of what those witnesses said.

As for Augustin, the State was not required to present the actual handgun

to sustain a conviction for its unlawful possession by Augustin. Brockington

testified she saw him with a gun, and so did Dozier. A jury could reasonably

infer from this testimony that Augustin indeed had a firearm on the day in

question, and the judge therefore properly found this was sufficient to support

his conviction if the jury credited that testimony. See State v. Bunch, 180 N.J.

534, 549 (2004).

The trial judge correctly denied defendants' motions for acquittal or a new

trial both before and after the verdict.

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31
 IV

Torres raises numerous issues that Augustin did not raise or that have no

bearing on Augustin's conviction. These arguments include Torres's contentions

that: (a) the judge should have instructed the jury about lesser-included offenses;

(b) the judge should have instructed on self-defense; (c) Luciano's testimony

that his home was invaded by U.S. Marshals substantially outweighed its

minimal probative value; (d) the judge's Gross analysis was flawed and that

Terrell's prior statements should not have been admitted; (e) the prosecutor

engaged in misconduct in her opening and closing statements; and (f) reversal

is required due to cumulative error. We find insufficient merit in these

arguments4 to warrant further discussion in a written opinion, R. 2:11-3(e)(2),

adding only the following comments about each.

A

Torres argues, for the first time, that the trial judge erred by failing to

instruct the jury on the lesser-included offenses of aggravated manslaughter,

manslaughter, and passion-provocation murder, and that he failed to instruct the

4
We also note that Torres filed a pro se brief in support of his appeal. We find
any arguments presented in his pro se brief that may be discernibly different
from those contained in his attorney's brief are of insufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(2).
A-5864-17
32
jury on self-defense. Torres concedes he and the other defendants asked that

these charges not be given, adopting instead an "all or nothing" strategy.

Nevertheless, he argues the trial judge "had an independent obligation" to issue

instructions about these lesser-included offenses notwithstanding.

Torres asserts there was sufficient evidence to suggest that Fullman

possessed a gun at the time of the crime, got into an argument with Augustin,

and "may have fired the first shot." He contends that, based on the record, the

jury could have found he: "recklessly shot Fullman, either in response to

Fullman's actions or a fight between Fullman and [Augustin]; shot his gun in

reaction to Fullman first shooting his gun; accidentally shot Fullman; shot

Fullman in the heat of passion; or shot Fullman justifiably in self-defense." He

argues that instead, the jury was given the "unreasonably limited choice" of

either convicting him of murder or acquitting him. Torres further argues that this

error was "exacerbated" by the judge's failure to properly charge the jury on

accomplice liability, specifically by not instructing that Torres may have acted

as an accomplice and "could have had a purpose to commit a different, lesser

crime" than the principal or principals.

"It is axiomatic that appropriate jury instructions are essential for a fair

trial," State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993), and erroneous

A-5864-17
33
jury instructions are "poor candidates for rehabilitation under a harmless -error

analysis," State v. Rhett, 127 N.J. 3, 7 (1992), and "excusable only if they are

harmless beyond a reasonable doubt," State v. Vick, 117 N.J. 288, 292 (1989).

But, when a defendant does not request an instruction or object to the lack of

one, a trial judge's actions are reviewed under a plain-error standard. State v.

Cole, 229 N.J. 430, 455 (2017); R. 1:7-2; R. 1:8-7(b). So, the judge's decision

"not to charge the jury sua sponte" on an issue does not merit reversal unles s

"clearly capable of producing an unjust result." R. 2:10-2.

Turning first to the argument about the judge's failure to sua sponte charge

lesser-included offenses, we recognize that a defendant may be convicted of an

offense which is "included" in a charged offense. N.J.S.A. 2C:1-8(d). Relevant

here, an offense is included if it "is established by proof of the same or less than

all the facts required to establish the commission of the offense charged" or if it

"differs from the offense charged only in the respect that . . . a lesser kind of

culpability suffices to establish its commission." Ibid.

Torres was charged with "purposely" or "knowingly" causing death or

serious bodily injury resulting in death. N.J.S.A. 2C:11-3. Aggravated

manslaughter occurs when the actor "recklessly causes death under

circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-

A-5864-17
34
4(a)(1). And manslaughter occurs if the death is caused "recklessly." N.J.S.A.

2C:11-4(b)(1). Additionally, a homicide which would otherwise constitute

murder is manslaughter if "committed in the heat of passion resulting from a

reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Torres argues that the judge

should have instructed the jury on these lesser-included types of homicide in

addition to purposeful or knowing murder for which he was charged.

A trial judge, however, must not instruct a jury that it may find a defendant

guilty of a lesser-included offense "unless there is a rational basis for a verdict

convicting the defendant of [that] offense." N.J.S.A. 2C:1-8(e). The rational

basis test "sets a low threshold." State v. Carrero, 229 N.J. 118, 128 (2017). If a

defendant requests a charge on a lesser-included offense, the trial judge "is

obligated, in view of [the] defendant's interest, to examine the record

thoroughly" to determine if the test has been satisfied. State v. Crisantos, 102

N.J. 265, 278 (1986). But "sheer speculation does not constitute a rational basis."

State v. Brent, 137 N.J. 107, 118 (1994). "In the absence of a request or an

objection," a "higher standard" is employed, "requiring the unrequested charge

to be 'clearly indicated' from the record." State v. Alexander, 233 N.J. 132, 143

(2018). The trial judge is obligated to instruct the jury on a "clearly indicated"

lesser-included offenses even if this is "'at odds with the strategic decision of

A-5864-17
35
counsel.'" Ibid. (quoting State v. Garron, 177 N.J. 147, 180 (2003)). The "clearly

indicated" standard does not require trial judges to "scour the statutes to

determine if there are some uncharged offenses of which the defendant may be

guilty," Brent, 137 N.J. at 118, or to "meticulously sift through the entire record

. . . to see if some combination of facts and inferences might rationally sustain"

a lesser charge, State v. Choice, 98 N.J. 295, 299 (1985). Instead, "the evidence

supporting a lesser-included charge must 'jump[] off the page' to trigger a trial

court's duty to sua sponte instruct a jury on that charge." Alexander, 233 N.J. at

143 (quoting State v. Denofa, 187 N.J. 24, 42 (2006)). For example, in State v.

Rose, 112 N.J. 454, 482-85 (1988), the Court found that a person firing a gun

into the mid-section of another at close range "necessarily is aware that 'it is

practically certain' that such conduct will cause the victim's death" and, so,

found no rational basis for the trial judge there to have instructed the jury on

aggravated manslaughter where the defendant did just that. See also State v.

Mendez, 252 N.J. Super. 155, 161-62 (App. Div. 1991) (no rational basis to

instruct the jury on reckless manslaughter as a lesser-included offense to murder

where defendant fired a machine gun into a crowd, because a person taking such

action "would be aware that it is practically certain his conduct will cause death"

or "serious bodily injury" resulting in death).

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36
 In State v. Funderburg, 225 N.J. 66, 77-84 (2016), the Court found that

the trial judge did not err in failing to sua sponte instruct the jury on

passion/provocation manslaughter when the evidence of reasonable provocation

did not "jump[] off the page" and where such an instruction would have

potentially contradicted the defendant's theory of the case that he did not intend

to injure the victim. See also State v. Galicia, 210 N.J. 364, 373-86 (2012)

(holding the trial judge erred by instructing on passion/provocation

manslaughter when there was no evidence of reasonable provocation and

because the defendant's theory of the case was that victim's death was

accidental).

In applying these principles, we first note that Torres's counsel stated that

his client was not asking for any lesser-included offenses to be charged to the

jury because there was "no rational basis" to do so. On the other hand, the State

asked for an instruction on aggravated manslaughter, to allow jurors to find that

even if only one defendant intended to kill Fullman, the others may have been

reckless or intended only to cause bodily harm. The judge denied the State's

request to charge on aggravated manslaughter, finding that because the sole

eyewitness account was that the gunmen stood close to Fullman and shot at him,

the record "rationally support[ed] no finding" other than that they "acted

A-5864-17
37
deliberately and intentionally in causing or attempting to cause" his death . The

judge instructed only on murder and, after the charge, counsel for Torres stated

he was "satisfied" with the instructions.

As for passion/provocation, it has been held that while "a threat with a

gun or knife might constitute adequate provocation" to support an instruction on

passion provocation manslaughter, State v. Mauricio, 117 N.J. 402, 414 (1990),

words alone do not, State v. Darrian, 255 N.J. Super. 435, 448 (App. Div. 1992).

Dozier's testimony included evidence to the effect that Fullman had a gun in his

possession when he was gunned down. Dozier stated: (1) he had seen Fullman

carrying a .45 caliber gun "a lot" as protection while he sold drugs; (2) when he

heard the first sound of a gunshot in the vestibule he thought Fullman might

have been "playing with" his weapon and accidentally fired it or fired it "just for

the hell of it"; and (3) he saw Thompkins and Terrell take a gun out of Fullman's

pocket after the shooting. But Dozier never said he saw a gun in Fullman's hand

when he looked over and saw Fullman get shot. Forensic examination

established that all the shell casings found at the crime scene matched the two

types of bullets found in Fullman's body, suggesting that the only shots fired at

the scene were those directed at Fullman and not fired by him. Moreover, while

there was testimony that Torres may have been present in the downstairs hallway

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38
of Pierce Manor when Fullman quarreled with Augustin, no evidence was

submitted by the State or defendants that Torres had any part in that argument,

and mere antagonistic words from Fullman would not justify a

passion/provocation instruction in any event. There is no evidence in the record

that Fullman made any threat of violence toward Torres or did anything else on

the evening of December 12, 2014, to "reasonably" provoke Torres to shoot him

on the spot as a jury would need to find to convict Torres of passion/provocation

manslaughter instead of murder.

As for aggravated manslaughter and manslaughter, we find the case

similar to Rose, 112 N.J. at 482-85, and Mendez, 252 N.J. Super. at 161. Like

the testimony in those two cases, Dozier testified he saw defendants fire guns

directly at Fullman. In addition, Terrell told police that Torres told him Fullman

was "gonna go tonight." Terrell's statement, if believed, does not comport with

a theory that Torres "recklessly" caused Fullman's death. And there is nothing

in the record that would provide a rational basis for the judge to charge the jury

on aggravated manslaughter. N.J.S.A. 2C:1-8(e). Any instruction on these

lesser-included offenses would have invited the jury to speculate. 5

5
Because we find no merit in the argument that the judge should have instructed
the jury on lesser-included offenses, we also find no merit in Torres's argument

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39
 B

Torres argues that the trial judge erred by not sua sponte instructing the

jury about the elements of self-defense. He argues the record was "replete" with

testimony that "Fullman not only possessed and used a gun that evening, but that

he may have fired the first shot." In support of this argument, Torres argues that

Dozier testified Fullman had "a lot of different guns" and often carried a gun.

He also testified that Fullman was in possession of a gun the day he was killed,

as he had shown it to Dozier, and that the gun was stolen from Fullman after he

was shot. Luciano also testified that Torres told him Fullman had a gun at the

time of the shooting and that Torres said to him that it "was either him or me."

Others testified Fullman was in possession of a gun at the time, and that

Augustin and Fullman had argued. According to Brockington, Fullman told her

"he was hot at [Augustin]." Brockington said that Fullman said "[Augustin]

keeps fucking with me. He keep fucking with me since I got here. I'm tired and

I want to fight him."

that the judge erred "in not sua sponte charging the jury as to accomplice liability
for the lesser-included offenses of murder," argued for the first time in this
appeal. We note that the judge correctly charged the jury on the law applicable
when considering whether Torres, Augustin or Mosby were guilty of murder as
an accomplice. By convicting only Torres of murder, the jury clearly found
beyond a reasonable doubt that he was the principal in the commission of that
crime.
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40
 N.J.S.A. 2C:3-4 provides that the use of force toward another person may

be justifiable if certain conditions are met. "Self-defense requires an actual,

honest, reasonable belief by the defendant in the necessity of using force ." State

v. Burks, 208 N.J. Super. 595, 604 (App. Div. 1986). The justification may only

be found when the force was used to protect the defendant against unlawful force

by another. Ibid. (citing N.J.S.A. 2C:3-4(a)). The use of deadly force, however,

is not justifiable "unless the actor reasonably believes that such force is

necessary to protect himself against death or serious bodily harm." N.J.S.A.

2C:3-4(b)(2).

If no request for a self-defense charge is made, a trial judge must sua

sponte instruct the jury on this justification only if the evidence "clearly

indicates or clearly warrants such a charge." State v. Rivera, 205 N.J. 472, 490

(2011). A judge need not "scour the record in detail to find such support." Ibid.

But a judge must "carefully refrain from preempting defense counsel's strategic

and tactical decisions and possibly prejudicing [the] defendant's chance of

acquittal." State v. Perry, 124 N.J. 128, 162 (1991).

Rule 3:12-1 obligates the defendant to serve written notice of an intent to

rely on the self-defense justification no later than seven days before the initial

case disposition conference. When a defendant fails to comply, a judge may take

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"such action as the interest of justice requires," including refusing to allow the

defendant to present evidence supporting the defense. Ibid.

Torres never served such a notice. And when the trial judge discussed the

proposed jury instructions with the attorneys, Torres's counsel twice said his

client did not want the judge to give the jury a self-defense instruction. The

judge adhered to those requests. Because the evidence did not clearly indicate

the need for such an instruction and because the omitted instruction ran counter

to Torres's strategic and tactical decision, we find no error in the judge's failure

to sua sponte give such an instruction.

C

Torres also argues for the first time on appeal that the trial judge should

have excluded Luciano's testimony about the manner in which U.S. Marshals

rushed into his Virginia home with guns drawn to arrest Torres. He asserts this

evidence was irrelevant, "inflammatory," and unduly prejudicial. To understand

why we find no error in what occurred, some background is required.

Prior to Luciano's testimony, the defense sought and obtained a ruling that

evidence that guns and bullets were found in Luciano's house when Torres was

arrested would be inadmissible. During Luciano's testimony, the prosecutor

asked how Torres's visit to his home ended, and Luciano replied that "it ended

A-5864-17
42
with U.S. Marshals." The prosecutor then asked, "[a]nd when you say, 'with U.S.

Marshals,' what happened?" Mosby's counsel objected, arguing that the

"generalness" of the question "[left] an opening" for Luciano to "possibly talk

about things that . . . have been deemed inadmissible," and Torres's counsel

added that he "[didn't] want the issue of guns to come out," referring to the guns

found in Luciano's home not the guns wielded by marshals. The judge agreed

these concerns were well taken and allowed the prosecutor to ask leading

questions to make sure Luciano did not volunteer unwanted information. Neither

Torres's counsel nor any other party objected when the prosecutor elicited the

following testimony from Luciano:

Q. [W]hen you say, [t]he U.S. Marshals, . . . just say
yes or no, they came to your house, right?

A. Yes, ma'am.

Q. And they came in and went into your home, right?

A. Yes, ma'am.

....

Q. And they held you at gunpoint, right?

A. Yes, ma'am.

Q. And your wife had to grab your child – right?

A. Yes.

A-5864-17
43
 Q. – who was coming out of a bedroom – right?

A. Yes.

Q. – when the marshals rushed in, right?

A. Yes, ma'am.

Q. And they arrested Gregory Torres, right?

A. Yes, ma'am.

On appeal, a judge's evidential rulings are evaluated under an abuse of

discretion standard. Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012).

Such a ruling must be upheld "unless it can be shown that [it] . . . was so wide

of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J.

86, 106 (1982). And when, as here, a defendant raises the argument for the first

time on appeal, the matter is reviewed in search of plain error, meaning the

decision will not be upset unless it was "of such a nature as to have been clearly

capable of producing an unjust result." R. 2:10-2.

The testimony now in question was offered by the prosecution to show

Torres was in Virginia to avoid apprehension and it thus had "a logical

connection [with] a fact in issue." State v. Hutchins, 241 N.J. Super. 353, 358

(App. Div. 1990); see also State v. Bakka, 176 N.J. 533, 545 (2003). The details

of the arrest, however, had no probative value. Nevertheless, we find no harm

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44
in the admission of those aspects of the examination quoted above because there

was no objection – suggesting the defense also saw no harm – and because these

minor aspects of the Virginia circumstances did not go anywhere near the heart

of the matter. Moreover, the testimony elicited was not otherwise expanded upon

nor did any party dwell on it thereafter. The testimony that federal marshals had

their guns drawn when they entered Luciano's home did not have the capacity

to generate an unjust result.

D

Torres argues that the judge erred by allowing the State to play recordings

of Terrell's prior statements to police, claiming the judge did not properly apply

or weigh the factors for admitting a witness's prior out-of-court statement under

Gross, 121 N.J. at 10. We do not agree.

Under N.J.R.E. 803(a), a witness's prior statement is not excluded by the

hearsay rule if the witness "testifies and is subject to cross-examination" about

the statement and the statement "is inconsistent with the declarant-witness's

testimony at the trial." If the statement is offered by the party calling the witness,

there is a further requirement that the statement "(A) is contained in a sound

recording or in a writing made or signed by the declarant-witness in

circumstances establishing its reliability; or (B) was given under oath at a trial"

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or other similar proceeding. N.J.R.E. 803(a)(1). Here, only subsection (a)(1)(A)

is relevant.

In Gross, the Court provided fifteen factors to be considered in

determining whether a prior inconsistent statement of a testifying witness was

made in "circumstances establishing its reliability," 121 N.J. at 7, under N.J.R.E.

803(a):

(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 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, inducement or coercion for making 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.

[Gross, 121 N.J. at 10.]

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The Court held that the burden is on the party offering the statement to show its

reliability by a "fair preponderance of the evidence." Id. at 15. The Court

declined to adopt a higher standard for admissibility, stating that under N.J.R.E.

803(a), the declarant must be subject to cross-examination, a process which "can

be relied on to explore and to expose most, if not all, relevant circumstances

surrounding the prior inconsistent statement." Id. at 13. It is "not critical that the

fact-finder have observed first-hand a witness's statement in order to evaluate

its credibility and probative worth." Id. at 14. As a result, a prior inconsistent

statement is admissible so long as there are "sufficient indicia of antecedent

reliability." Id. at 15.

The Gross Court further held that if a statement is admitted under N.J.R.E.

803(a), the jury should be instructed to consider the same kinds of factors as

enumerated above when "assessing its credibility and probative worth." 121 N.J.

at 16-17. For example, a jury "could be instructed that the witness' prior

inconsistent statement under police interrogation must be carefully scrutinized

and assessed in light of all the surrounding circumstances, including [the

witness's] interest in giving the statement at that time." Id. at 17.

At trial, the State sought to play Terrell's two statements to detectives for

the jury. At the start of the Gross hearing, the prosecutor asked Terrell whether

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Torres told him that Fullman has "got to go" and later that he, Torres, had shot

Fullman; Terrell said, "no." When questioned about the night Fullman died,

Terrell responded that he "[did] not recall." He said he remembered giving a

statement to police, but it was "all a lie." Terrell also said he did not remember

whether he told officers that defendants were in the hallway of Pierce Manor on

December 12, 2014, or any other information he gave them.

Terrell also repeatedly said his answers to the detectives' questions were

lies, stating that he "was making it up as [he] went along." He claimed that

Detective Sergeant Ho told him that if he identified defendants as the shooters,

he would "help" him by getting drug charges against him dropped. Terrell also

said that Detective Sergeant Ho told him to identify Torres as one of the

shooters, and then directed him to "say stuff about [Augustin]." Terrell also

claimed that he "tried to recant," but Detective Sergeant Ho would not allow him

to make another statement. Ultimately, Terrell asserted, "[t]he truth is, I don't –

I really don't know what happened to Bilal Fullman. I don't know. I don't

remember if I was there or not. I don't know who shot that man."

Detective Sergeant Ho testified at the hearing and explained he became

interested in talking to Terrell because other witnesses mentioned he was at the

crime scene. He testified that during the statement on January 5, 2015, Terrell

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was "slightly hesitant, but cooperative," that there was no time when Terrell

appeared not to understand the questions he was being asked, that Terrell never

appeared to be in any kind of mental or physical distress or under the influence

of any substance, that Terrell was provided with food during the interview, and

that the conversation between the officers was "normal" and not "contentious."

Detective Sergeant Ho testified that he never told Terrell what information he

wanted him to give during his statements and never told Terrell he could get any

charges against him dropped or help him in any other way if he assisted with

this case.

Following the hearing and Terrell's direct examination before the jury, the

judge discussed the fifteen Gross factors. Among other things, the judge found

that Terrell's testimony during the hearing and direct examination was

"inconsistent," since at some points Terrell said he did not remember anything

about what he said during his statements but at other times said he remembered

Detective Sergeant Ho telling him to identify defendants and he remembered

that he lied; the judge found that Terrell, "has selective recall. It is feigned

selective recall in this court's conclusion." By contrast, the judge found

Detective Sergeant Ho credible, and that his testimony that he did not make any

promises to or apply any pressure upon Terrell was "believable." Ultimately, in

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applying the Gross factors, the judge found the State met its burden and

"established by a preponderance of the evidence that the statements were

provided in circumstances establishing their reliability." The judge held that

because the statements were inconsistent with Terrell's "feigned lack of recall"

during direct examination, they were admissible under N.J.R.E. 803(a). Videos

of the statements were played for the jury.

The judge later instructed the jurors on how they could use the statements

as evidence. The judge advised that when deciding whether Terrell's statements

were credible, the jurors should consider "any relevant factors" and provided the

fifteen Gross factors for them to consider.

We find no error in the procedures and rulings that led to the admission

of Terrell's statements and no error in the instructions provided to the jury in

how to consider that evidence.

E

Torres argues, for the first time on appeal, that the prosecutor committed

misconduct in her opening and closing statements. He asserts that the prosecutor

"pronounced him guilty" in her opening, thus invading the province of the jurors ,

and that she engaged in name calling and made inaccurate factual assertions

during her closing.

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 When a defendant does not object to a prosecutor's remarks when made,

any asserted error must be evaluated for plain error. State v. Tilghman, 345 N.J.

Super. 571, 575 (App. Div. 2001). A failure to object suggests that counsel did

not believe at trial that the prosecutor's remarks were prejudicial and deprives

the trial judge of a chance to take curative action. State v. Frost, 158 N.J. 76,

83-84 (1999).

We start with the premise that prosecutors are afforded "considerable

leeway" in their statements when "their comments are reasonably related to the

scope of the evidence presented," and they are expected to make "vigorous and

forceful" arguments. Id. at 82. And, while a prosecutor must also "refrain from

improper methods," State v. Smith, 167 N.J. 158, 177 (2001), it has been

recognized that even when utilizing improper methods, reversal does not follow

unless it can be said that the prosecutor's misconduct deprived defendant of a

fair trial, State v. Hawk, 327 N.J. Super. 276, 281 (App. Div. 2000). Instead, the

prosecutor's misconduct must have been "so egregious," State v. Ramseur, 106

N.J. 123, 322 (1987), that it "substantially prejudiced [the] defendant's

fundamental right to have a jury fairly evaluate the merits of his defense ," State

v. Timmendequas, 161 N.J. 515, 575 (1999). And statements that would

otherwise be prejudicial "may be deemed harmless if made in response to

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

2011).

We assess a prosecutor's comments in the context of the entire record,

State v. Nelson, 173 N.J. 417, 472 (2002), including whether the trial was

lengthy and the prosecutor's remarks short or "errant," State v. Engel, 249 N.J.

Super. 336, 382 (App. Div. 1991). When remarks are "only slightly improper,"

a jury charge that an attorney's opening and closing arguments are not evidence

and should be disregarded if they conflict with jurors' recollection of events

"may serve to ameliorate potential prejudice." Frost, 158 N.J. at 86-87; Ramseur,

106 N.J. at 323.

At the trial's outset, the judge informed the jury that "what is said in an

opening statement is not evidence. The evidence will come from the witnesses

who will testify and from whatever documents or tangible items that are received

in evidence." He gave similar instructions a few days later, just before the

prosecutor commenced her opening statement.

In her opening, the prosecutor made statements to which Torres now

objects:

• Defendants "entered into the vestibule of [Pierce
Manor] and killed Bilal Fullman."

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 • "It's very common to see certain people in that
hallway and that's why it was very easy for
Firicin Augustin, Gregory Torres, and Jamar
Mosby to walk into that hallway, walk up to Bilal
Fullman, pull out three guns, and fire at him,
killing him."

• "[W]hat you're going to find out through the
testimony is that not only was [Fullman] well
known [at Pierce Manor] and that people knew
him there, but that everyone involved in this case
knew each other and that's how these defendants
could so brazenly and boldly and with purpose
walk into that hallway and corner Bilal and
execute him."

• Dozier "was in the hallway on the night that Bilal
was killed by [defendants]," and that Dozier
"watched the defendants as they cornered Bilal,
as they shot Bilal, and as they ran away."

• Because defendants were known by Pierce Manor
residents, they "were able to walk in and shoot
Bilal in a crowded hallway."

The prosecutor also described and emphasized Dozier's various statements to

police, briefly mentioned that other witnesses saw defendants at Pierce Manor

on the evening in question, stated Brockington saw a "dispute" between

Augustin and Fullman "shortly before the shooting," and argued that Torres left

town to stay with Luciano in Virginia until his arrest. And, near the end of the

opening, the prosecutor said,

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53
 [A]t the end of the day, all of the evidence, every step
along the way that the investigators put this case
together . . . all of the evidence points to the defendants,
all of the evidence takes us to where we are today right
now, to this courtroom where we seek the truth. And
after all that evidence is presented, you're going to have
some questions that you're going to have to answer.
You're going to have to decide what happened that
night. You're going to have to decide what were the
facts of that night. The questions you're going to have
to ask yourself are this: "Am I firmly convinced that
Firicin Augustin murdered Bilal Fullman?" "Am I
firmly convinced that Gregory Torres murdered Bilal
Fullman?" "Am I firmly convinced that Jamar Mosby
murdered Bilal Fullman?"

We find nothing inappropriate in any of these statements.

To be sure, it would have been better for the prosecutor to phrase some of

these comments with expressions like "the evidence will show that defendants

killed Fullman" rather than "defendants killed Fullman." But similar prefaces

were uttered by the prosecutor and, when considering the whole of the opening,

we are satisfied that it was undoubtedly clear to the jury that the prosecutor was

expressing what she believed the jury would hear in testimony, not her own

personal belief about defendant's guilt. And, as quoted above, the prosecutor

ended her opening by saying that the evidence in the case "point[s] to the

defendants" and that it was up to the jury to decide whether each defendant

"murdered Bilal Fullman."

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 Considering the judge's repeated comments that opening statements are

"not evidence" and that the jurors were to rely on their own understanding of the

evidence presented, we find the prosecutor did not exceed the bounds of proper

advocacy or, even if she did, we find no deprivation of defendant's due process

rights.

We reach the same conclusion with respect to Torres's arguments about

the prosecutor's summation. He first argues the prosecutor engaged in improper

"name-calling" and then argues the prosecutor misstated the evidence.

Although prosecutors are "expected to make vigorous and forceful closing

arguments to juries," they are "not permitted to cast unjustified aspersions on

the defense or defense counsel." Smith, 167 N.J. at 177. In State v. Williams,

113 N.J. 393, 455-56 (1988), the Court cautioned prosecutors that "derogatory

name-calling will not be condoned" and concluded that references to the

defendant as a "cancer" and "a parasite upon society" were "troubling." In other

cases, it has been determined that references to a defendant as an "animal," State

v. Wilson, 57 N.J. 39, 50 (1970), and a "thug[]," State v. Sheika, 337 N.J. Super.

228, 250 (App. Div. 2001), were not reversible but names like "young punk,"

State v. Stewart, 162 N.J. Super. 96, 102-03 (App. Div. 1978), and "hood,"

A-5864-17
55
"punk," and "bum," State v. Von Atzinger, 81 N.J. Super. 509, 516 (App. Div.

1963) were.

We find nothing troublesome here. Torres argues that the prosecutor

labeled him a "drug dealer," but she never directly made that statement. The

argument is based on an inference that because the prosecutor stated witnesses

walked through "a crowd of drug dealers," that Pierce Manor was "under the

control of the drug dealers," and that defendants were "known to this

neighborhood." This was hardly a direct reference to Torres as a drug dealer.

Moreover, during their closing statements, defense counsel made similar

statements, referring to individuals at Pierce Manor using and selling drugs.

Mosby's counsel said Dozier was "there every day or almost every day selling

drugs in Pierce Manor," and more generally that "the witnesses were pretty clear

that all day, all night people come in and out, people who live there, people who

hang out there, people who sell drugs there." Augustin's attorney said, "[i]t's sad

to say, but it seems that Pierce Manor was a place where a lot of people sold

drugs, used drugs," and urged the jury to consider whether any witnesses were

under the influence on December 12, 2014. And Torres's counsel argued to the

jury that Dozier testified there were "all kinds of people standing out there" at

Pierce Manor on December 12, 2014, "selling drugs, doing drugs," and "there

A-5864-17
56
were any number of people who were standing in that hallway, selling drugs,

doing drugs, walking around." Torres's counsel added: "I get the impression that

in Pierce Manor, with all the drug dealing going on, it's probably not beyond the

world of the extraordinary that someone has a gun and that that gun goes off ."

Considering that the prosecutor's summation with respect to what was

occurring at Pierce Manor was well-supported by the evidence, and considering

defense counsel made similar comments about individuals in and around Pierce

Manor, we find no merit in the argument that the prosecutor exceeded the bounds

of proper advocacy.

Torres lastly argues that the prosecutor made misstatements of fact in her

closing that prejudiced his right to a fair trial. Prosecutors, of course, "must

argue based on facts in the record," Timmendequas, 161 N.J. at 595, and must

not "make inaccurate legal or factual assertions during trial," Smith, 167 N.J. at

178. Instead, they are generally limited to commenting on the evidence and

reasonable inferences that may be drawn from the evidence, State v. Bauman,

298 N.J. Super. 176, 207 (App. Div. 1997); they must not imply to the jury that

they possess knowledge beyond that contained in the record, State v. Feaster,

156 N.J. 1, 59 (1998), and "may not invite the jury to speculate about facts not

in evidence," McGuire, 419 N.J. Super. at 146.

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 Torres argues the prosecutor incorrectly stated Sutton West "vouched for"

Dozier with defendants in summation. Whether that statement about what the

testimony revealed was accurate is debatable. Nevertheless, in the context of the

rest of the summation and the trial as a whole, this arguable misstatement of fact

was not "egregious" enough to "substantially prejudice" Torres's right to a fair

trial. Ramseur, 106 N.J. at 322; Timmendequas, 161 N.J. at 575.

We find all Torres's other arguments about the prosecutor's opening and

closing statements to be of insufficient merit to warrant further discussion in a

written opinion. R. 2:11-3(e)(2).

V

Both defendants argue their sentences are excessive. We discuss their

contentions separately, turning first to (a) Augustin's and Torres's arguments

about the judge's application of aggravating and mitigating factors in fixing the

prison terms imposed, and then (b) the judge's determination that the prison

terms run consecutively to prison terms on unrelated matters that defendants

were then serving.

A

Augustin argues that the trial judge erred by not considering mitigating

factor nine, because evidence showed he refused to fight Fullman and had

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58
obtained his GED while incarcerated, and that the judge should have considered

mitigating factors one and two, because his conduct did not cause or threaten

serious harm to anyone.

Torres argues that the judge should have considered the fact that he was

"only 20 at the time of the offense" as a mitigating factor, asserting that "young

adults" like himself "should be treated similarly to juveniles" at sentencing. He

further contends that the judge wrongfully considered the fact that he admitted

in another matter to being a gang member.

"Appellate review of sentencing decisions is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,

297 (2010). We first consider whether the judge followed the applicable

sentencing guidelines set forth in the Code of Criminal Justice. State v. Natale,

184 N.J. 458, 489 (2005); State v. Case, 220 N.J. 49, 63 (2014). Torres was

sentenced to a fifty-year prison term, with an eighty-five percent parole

disqualifier, for first-degree murder and a concurrent seven-year prison term,

with forty-two months of parole ineligibility, for second-degree unlawful

possession of a weapon. His conviction for possession of a weapon for an

unlawful purpose charge merged with the murder conviction. Augustin was

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sentenced to a nine-year prison term with a four-and-a-half-year period of parole

ineligibility for unlawful possession of a weapon.

N.J.S.A. 2C:11-3(b)(1) provides that a sentence for murder may be a term

of thirty years without parole, or a term of years between thirty years and life

with thirty years of parole ineligibility. Torres's sentence of fifty years subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, fell within these

parameters. N.J.S.A. 2C:43-6 dictates that a sentence for a second-degree

offense be between five and ten years. Torres's and Augustin's sentences for

second-degree unlawful possession of a weapon were also lawful.

We next consider whether the aggravating and mitigating factors found by

the trial judge are based on sufficient credible evidence in the record. State v.

Miller, 205 N.J. 109, 127 (2011). If the factors found by the trial judge are so

grounded, the sentence must be affirmed even if we would have reached another

result. State v. O'Donnell, 117 N.J. 210, 215 (1989). Whether a sentence will

"gravitate toward the upper or lower end of the [statutory] range depends on a

balancing of the relevant factors." Case, 220 N.J. at 64. A judge "must

qualitatively assess" the factors found, assign each an "appropriate weight," and

explain how the factors were balanced in arriving at the sentence. Id. at 65-66.

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 As for Torres, the judge found and applied three aggravating factors:

three, the risk that he would commit another crime; six, the extent of his criminal

history and the seriousness of his offenses; and nine, the need to deter him and

others from violating the law. N.J.S.A. 2C:44-1(a). In finding these factors, the

judge took note of Torres's history with the justice system, including two

adjudications of delinquency for distribution of a controlled dangerous

substance, prior convictions in three separate matters for possession of a

controlled dangerous substance, unlawful taking, conspiracy to engage in

racketeering, and multiple violations of probation. The judge observed that "for

a man of his age," Torres's record was "lengthy." He added that when providing

the factual basis for his guilty plea for the racketeering conviction, Torres

"admitted that he was a member of the Crips gang" and "was aware" of – and

"furthered" – that gang's illegal activities. The judge found that this criminal

history, a history with substance abuse, and a failure to respond to previous

sentences of probation and incarceration warranted a finding and application of

the three aggravating factors. He found no mitigating factors.

Torres argues that the judge should not have considered his admission of

being a gang member in that other matter. It appears, however, that the judge

viewed this fact only in the context of his assessment of Torres's criminal record

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and the likelihood that he would commit more offenses in the future. Torres's

gang involvement was a part of his prior criminal history, since it led to his

racketeering conviction, and a defendant's membership in an organized criminal

enterprise may increase the likelihood of recidivism. It does not appear that , in

uttering these facts, the judge intended to improperly punish Torres for

racketeering a second time.

Torres also argues the judge should have considered his youth as a

mitigating factor. In State v. Zuber, 227 N.J. 422, 451-53 (2017), the Court held

that a sentencing judge must take into consideration a set of factors set forth in

Miller v. Alabama, 567 U.S. 460, 478 (2012), when sentencing juveniles to life

without parole or a lengthy term-of-years sentence with a period of parole

disqualification that equates with a life sentence. These factors – the defendant's

immaturity, impetuosity, failure to appreciate risks and consequences, family

and home environment and family and peer pressures, and the possibility of

rehabilitation – are intended to "take into account how children are different,

and how those differences counsel against irrevocably sentencing them to a

lifetime in prison." Miller, 567 U.S. at 480.

But Torres was not a juvenile when he murdered Fullman. He was twenty

years old. In Roper v. Simmons, 543 U.S. 551, 574 (2005), the Court recognized

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that while "[t]he qualities that distinguish juveniles from adults do not disappear

when an individual turns [eighteen]," that age is nevertheless "the point where

society draws the line for many purposes between childhood and adulthood" and

categorical rules setting eighteen as a dividing line for sentencing purposes are

therefore appropriate. We reject Torres's argument that he was entitled to

application of the principles announced in Miller and Zuber, we reject his

contentions that the judge misapplied the aggravating factors, and we reject his

argument that the sentence was excessive.

In sentencing Augustin, the judge also found aggravating factors three,

six, and nine, in light of Augustin's significant prior criminal record, issues with

controlled dangerous substances and related offenses, and a sporadic

employment history. The judge found no applicable mitigating factors. Augustin

does not challenge the judge's findings on the aggravating factors; he argues

instead that the judge should have found and applied mitigating factors one, two,

and nine. He argued before the trial judge, as he does now, that he obtained a

GED while incarcerated. He also argued that he refused to fight Fullman, and

that this revealed a lack of intent to hurt anyone or to use the gun Brockington

claimed – and the jury found – he had in his possession.

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 We reject Augustin's arguments. Mitigating factors one and two may be

found if "the defendant’s conduct neither caused nor threatened serious harm,"

and if he did not contemplate his conduct "would cause or threaten serious

harm." N.J.S.A. 2C:44-1(b). While Augustin was only convicted of unlawful

possession of a weapon, it does not, a fortiori, follow that these factors must be

found; every defendant convicted of a crime that may not have directly led to a

violent result, such as unlawful possession of a weapon, cannot expect to receive

the benefit of these factors. Further, the fact that Augustin may have backed

down from a specific challenge by Fullman to fight does not necessarily mean

he did not intend to harm or threaten harm to anyone with the gun he carried at

any time in the future.

Mitigating factor nine requires a finding that "character and attitude"

suggest the defendant "is unlikely to commit another offense," which would

have been at odds with the judge's finding of aggravating factor three: a risk

Augustin would commit another crime. The judge's finding in this regard was

properly based on Augustin's past criminal history and other relevant factors.

We find no error in the judge's decision not to find or apply any mitigating

factors, and we cannot conclude that the sentence imposed on Augustin was

excessive.

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 B

Both defendants argue that the judge erred in imposing prison terms that

were ordered to run consecutively to other prison terms both were then serving.

When sentenced here, Augustin was serving a five-year prison term, subject to

forty-two months of parole ineligibility, for second-degree unlawful possession

of a weapon that was imposed by another judge on May 9, 2016. And Torres

was serving a four-year prison term for second-degree conspiring to engage in

racketeering that was imposed on August 11, 2017. The judge expressly directed

at the sentencing hearing – as memorialized in the judgments of conviction –

that both defendants' sentences here should run consecutively to the earlier

sentences. Both defendants argue that the judge was obligated to not only apply

but explain how he applied the factors set forth in State v. Yarbough, 100 N.J.

627, 643-64 (1985) in making that determination.6

N.J.S.A. 2C:44-5(a) provides that multiple sentences "shall run

concurrently or consecutively as the court determines at the time of sentence,"

6
We note also that Augustin argues – as he argued at the time of sentencing –
that at the time he pleaded guilty in the prior matter, the judge at the time was
"inclined to postpone sentence until this matter that was open had been resolved,
for the purpose of giving a comparent sentence" but nevertheless imposed
sentence on the earlier matter because he "was in [the] process of leaving the
bench" and "wanted to dispose of" the matter.
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65
there being "no overall outer limit on the cumulation of consecutive sentences

for multiple offenses." "[T]here is no presumption in favor of concurrent

sentences and therefore the maximum potential sentence authorized by the jury

verdict is the aggregate of sentences for multiple convictions." State v.

Abdullah, 184 N.J. 497, 513-14 (2005). Of course, these defendants had already

been sentenced on other matters when sentenced here. N.J.S.A. 2C:44-5(b)

provides that "[w]hen a defendant who has previously been sentenced to

imprisonment is subsequently sentenced to another term for an offense

committed prior to the former sentence," as here, the multiple sentences imposed

shall so far as possible conform to the requirements of N.J.S.A. 2C:44-5(a). It

further states that "[w]hether the court determines that the terms shall run

concurrently or consecutively, the defendant shall be credited with time served

in imprisonment on the prior sentence in determining the permissible aggregate

length of the term or terms remaining to be served." N.J.S.A. 2C:44-5(b)(2).

In short, the judge was obligated to consider the sentences imposed here

in light of the sentences defendants were then serving, a consideration that

required consideration of the Yarbough factors. See State v. Hudson, 209 N.J.

513 (2012). Yarbough requires that the judge's rationale for imposing a

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consecutive term be "separately stated" in the sentencing decision. 100 N.J. at

643. In making the determination, the judge must consider whether or not :

(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; [and]

(e) the convictions for which the sentences are to be
imposed are numerous.

[Id. at 644.]

These criteria are to be applied qualitatively, not quantitatively, and consecutive

sentences may be imposed even if most of the criteria support concurrent

sentences. State v. Carey, 168 N.J. 413, 427 (2001). 7

At this stage, it is not possible to deduce the judge's reasoning for

imposing consecutive terms when none was given. We, thus, remand for the

7
Yarbough also commands that there should be no double counting of
aggravating factors, and "successive terms for the same offense should not
ordinarily be equal to the punishment for the first offense." Id. at 644.
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judge's further consideration of the imposition of consecutive terms and his

findings in support of whatever decision is reached.

***

The judgments of conviction in A-5864-17 and A-2506-18 are affirmed,

except we remand for reconsideration and further findings on the trial judge's

decision to impose, on both defendants, prison terms to run consecutively to

prison terms they were then serving.

Affirmed in part, remanded in part. We do not retain jurisdiction.

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