State of New Jersey v. Jamil Hilton

NOT FOR PUBLICATION WITHOUT THE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-3664-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIL HILTON, a/k/a
TWEETY,

Defendant-Appellant.
_______________________

Argued October 16, 2023 – Decided December 11, 2023

Before Judges Sabatino, Mawla, and Vinci.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 19-06-0350.

Stefan Van Jura, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Stefan Van Jura, of counsel
and on the briefs).

Alycia Irene Pollice-Beyrouty, Assistant Prosecutor,
argued the cause for respondent (Angelo J. Onofri,
Mercer County Prosecutor, attorney; Samantha Eaton,
Assistant Prosecutor, and Laura Sunyak, Assistant
Prosecutor, of counsel and on the briefs).
PER CURIAM

Tried by a jury, defendant Jamil Hilton was found guilty of armed robbery

of a car dealership, carjacking, and other offenses. In this direct appeal,

defendant argues several grounds for reversal of his conviction. For the reasons

that follow, we affirm.

I.

The State's charges arise out of an armed robbery and carjacking that

occurred at the Ewing Auto Outlet on August 12, 2015. Thomas Armitage, a

car salesman, was working at the outlet that day along with another employee,

Frank Dinatale.

At approximately 4:00 p.m., Armitage observed a man perusing the

vehicles on the lot. According to Armitage, the man had a full beard and was

wearing glasses, a bluish-gray hat, a dirty and ripped hooded sweatshirt, bluish-

gray pants, and black and white sneakers.

Believing the man to be a customer, Armitage went out to speak to him,

at which point the man stated that he was there to buy a car. Armitage showed

him a 1995 black Lexus LS 400, which the man expressed interest in purchasing.

Armitage then led the man inside the dealership to fill out the necessary

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paperwork. Armitage placed the keys on his desk and grabbed a financing

application, and when he turned around, the man was pointing a gun at his head.

The gun-pointing culprit forced Armitage into a back room, where

Dinatale was already located. The culprit then took some money from a drawer

in the back room as well as Armitage's wallet. As the culprit backed out of the

room, he continued to point his gun at Armitage. As he left the building, the

culprit took the keys to the Lexus that Armitage had left in the front office. He

left the building and drove away in the Lexus. Dinatale then called 9-1-1.

The Lexus was recovered by Sergeant Frederick Dow of the Ewing Police

Department about half a mile from the car dealership, with the keys left in the

ignition. Forensic testing of the vehicle failed to yield any sufficient fingerprints

or DNA evidence. Security footage from the dealership showed the culprit as

he entered the building and began pointing his gun at Armitage.

Two days after the robbery, on August 14, Detective Timothy Long of the

Trenton Police Department went to a residence on Daymond Street,

approximately an eleven-minute drive from Ewing Auto Outlet, at around 10:00

a.m. Long was aware of the robbery that occurred two days earlier due to a

"TRAKS" bulletin containing a description of the suspect issued by the Ewing

Police Department.

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 Linda Dismukes, defendant's fiancée, answered the door of the residence.

She was conversing with Detective Long when defendant descended the stairs.

Long testified that he recognized defendant from the TRAKS bulletin, although

defendant was not wearing his eyeglasses and had shaved his beard. When asked

by Long about his beard and his eyeglasses, defendant replied that he had shaved

two days earlier and that his glasses were on his bed. Long told defendant that

he believed defendant was "a robbery suspect," to which defendant responded

"yeah, you got me." Defendant was then arrested.

While in police custody but before his interrogation, defendant told

detectives that the gun used in the robbery was hidden underneath a bush on a

grassy lot across the street. Upon inspection of that site, police recovered a bag

containing two BB guns and some clothing.

During his interrogation, a video recording of which was played for the

jury at trial, defendant confessed that he walked to the dealership and, holding

a BB gun, stole $200 and drove away in the Lexus. As defendant admitted to

the police, he disposed of the glasses and sweatshirt he was wearing during the

robbery and shaved his beard.

At trial, defendant retracted his confession, claiming that he was not the

person who robbed the dealership and stole the Lexus. Defendant asserted that,

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when he spoke with police, he was under the influence of ten bags of heroin he

had ingested earlier, which had affected his judgment. He also claimed to have

confessed to the crime only because Detective Long had angrily threatened to

arrest Dismukes.

As we will discuss in more depth, Armitage identified defendant at trial

as the culprit, but Armitage had not participated in any identification procedure

(such as a photo array) in the five years between the robbery and the trial.

Dinatale, meanwhile, was unable to confirm at trial whether he recognized

defendant as the culprit. He likewise had not participated in a pretrial

identification procedure.

The other identification testimony linking defendant to the culprit in the

surveillance footage came from Detectives Long, Scott Peterson, and William

Wolverton. Long is the only one of those detectives who responded to the scene

of the robbery.

Defendant was charged by indictment with first-degree robbery, N.J.S.A.

2C:15-1(a)(2) (counts one and three); fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4) (counts two and four); first-degree carjacking, N.J.S.A. 2C:15-

2(a)(3) (count five); second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of a

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firearm, N.J.S.A. 2C:39-5(b) (count seven); first-degree unlawful possession of

a firearm, N.J.S.A. 2C:39-5(b) (count eight); and second-degree certain persons

not to possess a firearm, N.J.S.A. 2C:39-7(b) (count nine).

Before trial, the court granted the State's motion to dismiss counts two,

four, six, seven, eight, and nine. The remaining three counts were the two counts

of first-degree robbery and one count of first-degree carjacking.

The jury trial on counts one, three, and five was conducted in February

2020. The jury returned a guilty verdict on all three counts.

In November 2020, the court sentenced defendant to an aggregate term of

thirty-five years with an 85% period of parole ineligibility pursuant to the No

Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Pursuant to the State's motion

for a mandatory extended term under the Three Strikes Law, the court

resentenced defendant in January 2021 to life imprisonment without the

possibility of parole. N.J.S.A. 2C:43-7.1. In May 2021, he was resentenced

again to a seventy-five-year term of incarceration, with an 85% period of parole

ineligibility on May 14, 2021.1

On appeal, defendant raised the following points in his brief:

POINT I

1
Defendant has not appealed his sentence.
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THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS THE
CARJACKING CHARGE AT THE CLOSE OF THE
STATE'S CASE BECAUSE THE STATE
PRESENTED NO EVIDENCE THAT THE VICTIM
WAS IN CONTROL OF THE VEHICLE OR NEAR
THE VEHICLE OR KEYS WHEN THEY WERE
TAKEN.

POINT II

DEFENDANT WAS DENIED HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL BY THE
ADMISSION OF TESTIMONY FROM THREE
INVESTIGATING DETECTIVES THAT
DEFENDANT LOOKED LIKE THE PERPETRATOR
DEPICTED ON SURVEILLANCE VIDEO WHERE
THE DETECTIVES HAD NO FIRST-HAND
KNOWLEDGE OF THE INCIDENT, AND WHERE
IDENTIFICATION WAS A CRUCIAL AND
CONTESTED ISSUE. U.S. Const. amends. V and XIV;
N.J. Const. art. I, pars. 1, 9, and 10.

POINT III

DEFENDANT WAS DENIED HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL BY THE
PROVISION OF AN UNNECESSARY AND
LOPSIDED FLIGHT CHARGE THAT SUGGESTED
THAT DEFENDANT ACKNOWLEDGED HE WAS
THE ASSAILANT BUT DENIED THAT HIS
CONDUCT CONSTITUTED FLIGHT, WHEN, IN
FACT, IDENTITY WAS CONTESTED, NOT
FLIGHT. U.S. Const. amends. V and XIV; N.J. Const.
art. I, pars. 1, 9, and 10. (Not Raised Below)

POINT IV

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 DEFENDANT WAS DENIED HIS RIGHT TO A FAIR
TRIAL BY THE IMPERMISSIBLE
INDOCTRINATION OF THE JURY DURING JURY
SELECTION. U.S. Const. amends. V, VI, VII and XIV;
N.J. Const. art. I, pars. 1, 9, and 10. (Not Raised Below)

At this court's request, the parties also submitted pre-argument briefs

addressing the Supreme Court's recent opinions in State v. Watson, 254 N.J. 558

(2023), State v. Burney, 255 N.J. 1 (2023), and State v. Allen, 254 N.J. 530

(2023).

Having considered these arguments in light of the record and the applicable law,

we affirm defendant's convictions. We reorganize the sequence of the arguments

for ease of discussion.

II.

We begin with defendant's contention that the trial court erred in denying

his motion to dismiss the carjacking charge at the end of the State's case in chief.

Pursuant to Rule 3:18-1, a defendant may move for a judgment of acquittal

"if the evidence is insufficient to warrant a conviction." The applicable test is

whether a reasonable jury could, based on the evidence presented at trial, find

the defendant guilty of the charge beyond a reasonable doubt. State v. Reyes,

50 N.J. 454, 458-59 (1967); State v. Fiorello, 36 N.J. 80, 90-91 (1961). As a

reviewing court, we apply this same standard.

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 The pertinent language of the carjacking statute reads as follows:

(a) A person is guilty of carjacking if in the course of
committing an unlawful taking of a motor vehicle . . .
[that person]:

(1) inflicts bodily injury or uses force upon an
occupant or person in possession or control of a
motor vehicle;

(2) threatens an occupant or person in control
with, or purposely or knowingly puts an occupant
or person in control of the motor vehicle in fear
of, immediate bodily injury;

(3) commits or threatens immediately to commit
any crime of the first or second degree; or

(4) operates or causes said vehicle to be operated
with the person who was in possession or control
or was an occupant of the motor vehicle at the
time of the taking remaining in the vehicle.

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

Defendant was convicted pursuant to N.J.S.A. 2C:15-2(a)(3), which

required the State to prove that, in the course of unlawfully taking a motor

vehicle, he committed, or immediately threatened to commit, any crime of the

first or second degree. Notably, subsection (3) is the only subsection of the

carjacking statute that does not require proof of the presence of an occupant of

the motor vehicle, or a person in possession or control of the motor vehicle.

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 On defendant's motion to dismiss the carjacking charge, both the State and

defendant focused on whether Armitage or Dinatale could be considered

"occupants" or "persons in possession or control of" the Lexus. In that vein, the

trial judge emphasized the proximity of the car keys to defendant pointing a gun

at Armitage's head when ruling that the State had produced sufficient evidence

to allow a reasonable jury to find defendant guilty of carjacking beyond a

reasonable doubt.

Defendant relies on State v. Jenkins, 321 N.J. Super. 124 (App. Div. 1999),

in support of his argument that he was entitled to a directed verdict on the

carjacking charge. In Jenkins, the defendant approached the victim in a

graveyard and robbed him of his money before taking his car keys and driving

away. Id. at 126. The defendant was charged with carjacking under subsection

(2) of the statute, N.J.S.A. 2C:15-2(a)(2), which requires the presence of an

occupant or a person in possession or control of the vehicle. Id. at 129. This

court noted in Jenkins that the State, for whatever reason, chose not to prosecute

the defendant under subsection (3). Ibid. We reversed the defendant's

carjacking conviction because the evidence did not substantiate any sort of

proximity between the victim and the vehicle. Id. at 131.

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 Because defendant in the present case was convicted under subsection (3)

of the carjacking statute, proximity was not at issue, despite the focus of the

parties and the trial court on that subject. The only fact the State needed to prove

under this subsection was whether defendant took the Lexus unlawfully in the

course of committing a first- or second-degree offense. The analysis in Jenkins

is not pertinent here because it involved a different subsection of the statute.

Here, viewing the record in a light most favorable to the State, there was

abundant evidence to support defendant's convictions of first-degree robbery.

Those proofs supported the jury's finding that he took the Lexus unlawfully in

the course of committing the robbery. Consequently, we affirm the denial of

defendant's motion for acquittal on the carjacking count, albeit for analytically

different reasons than those stated by the trial court.

III.

Defendant contends the trial court impermissibly allowed the prosecutor

to "indoctrinate" the jurors during the voir dire. This argument is founded upon

the following query the court posed to jurors at the State's request during voir

dire:

Do you believe that forensic evidence such as DNA and
fingerprints are necessary to find someone guilty
beyond a reasonable doubt even if there is other

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 evidence, either direct or circumstantial, that may
support a finding of guilt beyond a reasonable doubt?

Three potential jurors expressed reservations about convicting someone

in the absence of incriminating forensic evidence. The State excused all three

with peremptory challenges.

Although defendant did not object to this line of questioning during the

voir dire, he now argues on appeal that the question impermissibly indoctrinated

the jury to ignore the absence of forensic evidence, specifically, the lack of DNA

and fingerprint evidence in the stolen Lexus.

Because this issue was not raised below by defendant, the plain error

standard of review applies. R. 2:10-2. "The error claimed must be so egregious

that it 'rais[es] a reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached.'" State v. Tierney, 356 N.J. Super. 468, 477

(App. Div. 2003) (alteration in original) (quoting State v. Macon, 57 N.J. 325,

336 (1971)).

We also bear in mind that reviewing courts have generally given deference

to a trial court's decisions within the voir dire process "except to correct an error

that undermines the selection of an impartial jury." State v. Winder, 200 N.J.

231, 252 (2009). The Court's recent decision in State v. Andujar, 247 N.J. 275

(2021), although it sparked reform in jury selection practices that historically

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discriminated against certain categories of potential jurors, did not repudiate this

general custom of appellate deference to the trial court's handling of the voir

dire process.

We recognize that the right to a fair and impartial jury is guaranteed by

both the United States and New Jersey Constitutions. U.S. Const. amends. VI,

VII, and XIV, N.J. Const. art. 1, ¶¶ 9-10; see also State v. Simon, 79 N.J. 191,

199 (1979). In State v. Manley, the Supreme Court adopted Rule 1:8-3(a),

granting trial courts the authority to conduct voir dire while also allowing parties

to supplement the court's voir dire questions within the trial court's discretion.

54 N.J. 259, 282 (1969). The purpose of that change in the voir dire process

was to "eliminat[e] the efforts [of parties] to indoctrinate, to persuade, [or] to

instruct by favorable explanation of legal principles that may or may not be

involved" in the subject case. Id. at 280 (emphasis added). 2

In State v. Little, 246 N.J. 402 (2021), the Court addressed the subject of

whether voir dire questions may be directed at the State's inability to produce a

particular category of evidence at trial. In that case, the State was unable to

2
As the result of the Court's comprehensive post-Andujar jury selection
initiatives, pilot programs are underway in designated vicinages using what is
termed "attorney-directed voir dire." Sup. Ct. of N.J., Notice to the Bar: Jury
Reforms (Jul. 12, 2022). Those ongoing pilot programs are not at issue in this
appeal.
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produce the weapon with which the defendant had allegedly assaulted the

victim. Id. at 409. The trial court, over the defendant's objections, asked

potential jurors whether the State's inability to produce the weapon as evidence

would affect their ability to serve. Id. at 411. Jurors who indicated they might

be less likely to convict the defendant if the weapon was not produced were

excused. Id. at 407.

The Court in Little instructed that "[i]n appropriate cases, the State's

inability to present a particular category of evidence can be a legitimate subject

for the trial judge to address in voir dire." Id. at 417 (emphasis added). The

Court recognized that "[i]f a juror is unwilling to consider the State's proofs

absent a specific type of evidence, that juror may be incapable of following the

court's instructions or fairly deciding the case." Id. at 417-18.

At the same time, a jury is allowed to consider the State's failure to

produce a specific type of evidence when deciding whether the State has met its

burden of proof. Id. at 419. The Court ultimately ruled that the trial judge's

failure to explain this latter point to the jury in Little rendered the voir dire

question an abuse of discretion. Ibid. A voir dire question of this nature must

be presented in a balanced manner, so that potential jurors are aware that,

although the State is not required to present a certain type of evidence, they may

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still take the absence of that evidence into consideration when rendering a

verdict. Id. at 420.

Here, defendant argues that the voir dire question regarding forensic

evidence, as it was presented to the potential jurors in this case, was unbalanced.

He contends the phrasing of the question failed to inform jurors that they would

still be allowed to consider the absence of forensic evidence as a factor in

evaluating whether the State met its burden of proof.

In response, the State asserts that, unlike in Little, where the proof of a

gun was essential to crimes charged, the lack of forensic evidence in this case

was not an element of any of the counts against defendant. It was not necessary

for defendant's DNA or fingerprints to be found in the Lexus for him to be guilty

of the armed robbery and the other charged offenses.

The State further asserts that the voir dire question "[did] not shift the

burden [of proof] but again reminded the jury that the State, not the defendant,

carries the burden of proof." The query expressly referred, twice, to the State's

obligation to prove guilt "beyond a reasonable doubt."

Although the voir dire question about forensic evidence posed to the

prospective jurors in this case could have been enhanced with a fuller

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explanation, we do not discern plain error that requires this case to be retried on

that basis.

The lack of forensic evidence recovered from the Lexus, although a

factual point in defendant's favor, was not a critical facet of the case akin to the

unproduced firearm in Little. The heart of the dispute in this trial was whether

or not defendant was the culprit in the surveillance video from the car dealership.

What was or was not found in the Lexus after it had been driven away from the

dealership was of lesser importance than the video and the observations of the

two employees at the scene.

We conclude the alleged shortcomings of the trial court's voir dire query

about juror attitudes concerning forensic evidence do not rise to an error clearly

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

IV.

We now turn our attention to two of defendant's arguments that have

relatively greater merit: specifically, (a) his challenge to the lay opinion

testimony by the police detectives identifying him as the culprit in the

surveillance video, and (b) the court's improper issuance of a flight charge. As

we will discuss, those arguments prove to be inconsequential under principles

of harmless error.

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 A.

Defendant argues it was improper for Detectives Long, Peterson, and

Wolverton to testify that they believed he was the culprit shown on the

surveillance video. He stresses that none of the detectives was present at the

dealership during the robbery, thus they lacked personal knowledge under

Evidence Rule 701 that would enable them to present their lay opinions of

identification to the jurors.

The guiding principles on this issue have been elaborated in a series of

decisions by the Supreme Court, starting with State v. McLean, 205 N.J. 438

(2011), and culminating most recently with State v. Watson, 254 N.J. 558 (2023),

decided a few months ago. 3 In McLean, the Court made clear that to be admitted

under Evidence Rule 701, lay opinion testimony by police officers must be based

3
See also Allen, 254 N.J. at 543-49, (involving testimony that the defendant's
photo had been included in an identification array because the testifying
detective thought defendant closely resembled the culprit); State v. Higgs, 253
N.J. 333, 363-67 (2023) (involving police testimony that dashcam video
depicted a gun-shaped bulge in the defendant's waistband); State v. Singh, 245
N.J. 1, 12-20 (2021) (involving police testimony that sneakers observed in video
were similar to those the officer observed the defendant wearing when arrested);
State v. Sanchez, 247 N.J. 450, 464-77 (2021) (involving parole officer
testimony that a person in a surveillance photo was the defendant, a former
parolee under the testifying officer's supervision); and State v. Lazo, 209 N.J. 9,
17-28 (involving police testimony that a prior arrest photo of the defendant
closely resembled a composite sketch).

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(1) on the officers' firsthand perceptions, and (2) must be helpful to the jury

while not unduly prejudicial to a defendant. Id. at 456. Because the non-expert

opinions of a testifying officer in McLean about whether the events at issue were

indicative of a drug transaction did not satisfy those requirements, the Court

declared them inadmissible. Id. at 463.

In its most recent guidance concerning these lay opinion issues in Watson,4

the Court ruled that law enforcement officers who were not present when the

crime occurred generally were not permitted to offer the jury their subjective

opinions about the contents of surveillance videos that recorded the criminal

acts. 254 N.J. at 608. Nor could such officers lacking personal knowledge of

the actual events "narrate" the videos in a manner that opined about disputed

facts depicted on the videos. Id. at 603-05. Hence, a police detective who was

not present during a bank robbery in Watson violated these limitations—

specifically by opining to the jury that the robber shown on the video was "being

careful" not to leave fingerprints behind, and by expressing his interpretation of

4
At oral argument on appeal, defendant's counsel stated that the Court's separate
announcement of new procedures in Watson regulating first-in-time-in-court-
identifications, such as the identification spontaneously made by Armitage in
court, was not applicable to this case, which was tried before the opinion in
Watson was issued. We therefore do not comment on the issue.
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the factually disputed placement of the robber's fingers on a note that he

displayed to the bank teller. Id. at 607-08.

Applying these lay opinion restrictions here, we agree with defendant that

it was improper for the three detectives to testify that, in their opinion, the culprit

shown in the surveillance video looked like him. None of the detectives were

present when the robbery occurred. They were not personally familiar with

defendant. They only had a chance to observe defendant (shaved and without

eyeglasses) at a later time when he was located at the residence and

apprehended.

Unlike the parole officer in Sanchez, 247 N.J. at 461, who recognized the

defendant from previously meeting him in person about thirty times over a

period of fifteen months, the detectives here were not acquainted with defendant

until his arrest. Moreover, as Detective Wolverton himself stated, the

surveillance video in this case was of exceptional quality, which is why he did

not show the video or photos from it to the eyewitnesses. The jurors had no

need to hear the officers' opinions about what they could see for themselves on

the video. The court erred in admitting the officers' opinions.

That said, we are unpersuaded that the admission of the officers' lay

opinion testimony requires a new trial. The error was harmless given the

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surveillance video itself, the corresponding descriptions by Armitage and

Dinatale about what happened at the crime scene, the admissions of guilt by

defendant at his residence and in his formal interrogation at the police station,

and the discovery of the discarded bag of BB guns hidden under a bush where

defendant said he had left them. The compelling nature of this other

incriminating evidence rendered the improvident admission of the officers' lay

opinions harmless. Allen, 254 N.J. at 550 (holding that the "compelling" nature

of the State's evidence overcame the trial court's error in admitting an officer's

lay opinion testimony about of what was depicted on a surveillance video of the

shooting events).

B.

The trial court also erred in issuing a flight instruction to the jury. Because

the charge was not objected to by defendant at trial, we review this issue for

plain error. State v. Walker, 203 N.J. 73, 89-90 (2010).

A jury instruction on flight may be given where "circumstances present

and unexplained . . . reasonably justify an inference that [flight] was done with

a consciousness of guilt and pursuant to an effort to avoid an accusation based

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on that guilt." State v. Mann, 132 N.J. 410, 418-19 (1993) (quoting State v.

Sullivan, 43 N.J. 209, 238-39 (1964)).

Defendant argues on appeal that the flight charge was improperly given

because the issue of the robber's flight was never contested. Defendant concedes

that the culprit fled the scene in the Lexus; instead, he contests only the State's

contention that he is the culprit. According to defendant, by issuing a flight

charge, the trial court "distract[ed] the jury and risk[ed] conflation of issues that

were disputed with those that were not."

There was no plain error here because the jury, despite hearing the flight

charge, was well aware that defendant was contesting identity. The trial court

instructed the jury as such: "[f]or you to find the defendant guilty the [S]tate

must prove beyond a reasonable doubt that this person is the person who

committed the crimes." The State contends the flight charge did not distract the

jury from its primary task of determining defendant's guilt.

Here, the flight instruction was not clearly capable of producing an unjust

result. The flight charge did not distract the jury from its primary task of

determining defendant's guilt. As is evident from a reading of the entire jury

instructions and from defendant's testimony, the jury was well a ware that

identity was the main issue in this case. The fact that the individual in the

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surveillance video fled the scene does not contradict the issue of identity.

Defendant has presented no convincing arguments that, by reading the flight

charge to the jury, the court somehow conflated this issue with the core disputed

issue of identity. The error in giving the charge was harmless.

V.

We have duly considered all other points and sub-points raised by

defendant and conclude they lack sufficient merit to warrant discussion in this

opinion. R. 2:11-3(e)(2).

Affirmed.

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