State of New Jersey v. Wendell Johnson

NOT FOR PUBLICATION WITHOUT THE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-2503-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WENDELL JOHNSON,
a/k/a LAMAR HILL,

Defendant-Appellant.
_______________________

Argued December 18, 2023 – Decided January 12, 2024

Before Judges Mawla and Chase.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 18-12-0746.

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

Debra Grace Simms, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Attorney
 General, attorney; Debra Grace Simms, of counsel and
on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Tried by a jury, defendant Wendell Johnson was convicted of aggravated

arson. In this direct appeal, defendant argues for reversal of his conviction and

sentence. We affirm.

I.

In August 2018, a fire occurred at the Kiss of Ink Tattoo Shop in Trenton.

On the day of the fire, at approximately 5:00 a.m., Joseph Matisa, the owner was

alerted of the fire and immediately drove to the shop. Matisa found the fire

department on the scene and the front of the building completely burnt. The rear

area was damaged by smoke and water damage. Matisa was unable to connect

to his own security cameras, so he asked a nearby business if he could review

their security footage.

The footage showed the same man appearing in the adjacent alleyway and

at the front door of the parlor multiple times throughout the early morning hours.

The man was wearing a red shirt, long denim shorts, a black cloth cap, and a

lanyard around his neck. The footage showed the individual gathering items

from trash piles, placing them at the front of the building, carrying a gasoline

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can, bending over the gathered pile with the gas can, and then running away

shortly before smoke emerged and the fire began.

The Trenton Police Department issued a press release along with still

frames from the video footage. Michael Traendly, defendant's parole officer,

and Trenton Police Officer Corey McNair, defendant's cousin, both responded

to the press release, identifying defendant as the person in the photograph.

Additionally, defendant called Officer McNair and told him that the police were

looking for him because of the photograph.

On December 13, 2018, defendant appeared before the trial court on this

complaint and three other pending indictments. After referencing an October

proceeding in which defendant had asked to be represented pro se, the trial court

and defendant discussed proceeding in that regard.

The court began by ensuring defendant knew the penalties for the most

serious charge he was facing, aggravated arson. Defendant correctly responded

that if he lost at trial, he would be facing up to ten years in prison with up to five

years without parole. Defendant also stated that depending on the damage

caused by the fire, he could also face fines and penalties. Regarding charges on

which he had already been indicted, defendant correctly stated that for his

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violations of third-degree failure to register under Megan's Law1, he was facing

five years in prison and up to three years without parole. The court explained,

for the separate indicted fourth-degree cases, defendant would be facing an

additional eighteen months in prison.

The court then asked defendant about his education, and defendant replied

that he had a GED and "had been practicing law for some time now." When the

court inquired how defendant practiced law without a license, he explained he

had represented himself many times. He described that he "had two of [his]

motions granted here in Mercer County Court" and he "went through the appeal

process and got the [No Early Release Act ("NERA")]2 eliminated" on prior

armed robbery and aggravated assault charges. When the judge asked about

NERA, defendant explained the eighty-five percent sentence was eliminated by

this court and "remanded back for resentencing to substitute it by the Graves

Act."3

1
N.J.S.A. 2C:7-19.
2
N.J.S.A. 2C:43-7.2.
3
N.J.S.A. 2C:43-6 (imposing mandatory minimum sentencing for certain
offenses involving firearms).
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 The court queried defendant's knowledge of the elements of aggravated

arson, with defendant stating, "All right. I allegedly purposely set a fire onto a

structure of private property." The court explained defendant was entitled to

statutory defenses. Defendant replied that he was not indicted yet, but after the

State submitted the matter to the grand jury, he would read the defenses and

understand them. After defendant identified the lesser-included charge of third-

degree arson, the court clarified there were other defenses he could raise.

Defendant then correctly explained the reasonable doubt standard to the trial

court.

When the court started to inform defendant on being bound by the Rules

of Evidence, defendant interrupted and explained that he also had to follow the

Code of Criminal Justice, and the Rules of Court, which he "read all the time."

The trial court made clear that it was specifically concerned about the evidence

rules because defendant would be bound by evidence rulings even if he did not

understand them. The court went on to try and simplify what sections of the

Court Rules applied to criminal proceedings, and defendant corrected the court,

stating there are eight sections to the rules, but in criminal cases only "[o]ne

through three and seven is municipal. Some municipal can be applied."

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 The court explained that by representing himself, defendant may not be

able to get certain evidence admitted and the court could not help him with

evidence or with presenting questions in the proper format. The court reiterated

it was still concerned defendant may be waiving some defenses he was not aware

of. Defendant then asked the court for standby counsel to help him with

subpoenas and the filing of motions, which defendant acknowledged would

depend on what happened at grand jury proceedings. The trial court again

explained to defendant the pitfalls of representing himself, including that it can

be difficult to choose whether or not to testify and the challenges that might

present. Defendant was also informed that if convicted, he would not be able to

raise any ineffective assistance of counsel claims on appeal or post-conviction

relief.

Throughout the proceeding, the trial court suggested numerous times that

defendant have counsel and warned of the drawbacks he would face in

representing himself because he was not trained in the law. The court explained

an attorney was trained in the law, but defendant had only "jailhouse

knowledge[,]" and would be better represented by an attorney. Although he was

told multiple times it was not a good idea to represent himself, defendant

remained steadfast in his quest. The court then granted defendant's motion.

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 Afterwards, the State pointed out defendant was eligible for an extended

term as a persistent offender.4 The court asked defendant if he was concerned

about being sentenced to those enhanced penalties, to which defendant replied,

"No, I've been in trial three times already." The court concluded by telling

defendant, "I'm not satisfied that you're making the correct decision, but that's

your decision to make[,]" and appointed standby counsel. On December 21,

2018, a grand jury indicted defendant on one count of second-degree aggravated

arson, N.J.S.A. 2C:17-1(a)(2).

Defendant engaged in extensive pre-trial motion practice. He challenged

the legitimacy of the complaint warrant and corresponding indictment, including

allegations the prosecutor presented evidence of defendant's prior convictions

to the grand jury. He moved for a new detention hearing, arguing a material

change in his circumstances. He tried to dismiss the indictment for the

prosecution's alleged failure to instruct the grand jury on defenses and

justifications. He moved for dismissal for prosecutorial misconduct through

selective prosecution.

4
N.J.S.A. 2C:44-3(a) (permitting imposition of an extended sentence where
defendant has been previously convicted on at least two other separate crimes
within the last ten years).
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 At one pre-trial hearing, defendant asked to speak with the State's attorney

without his standby counsel. The court advised defendant, "That's fine and what

I'm going to caution you, again, which I cautioned you at the time of the hearing

where I said that you could represent yourself, is that anything you say may

impact on your ability to, let's say, cross examine yourself." Defendant

responded, "Absolutely. I could be incriminating in the pitfalls and all and the

dangers and all that good stuff. I'm aware of that."

The trial began in March 2020. The State's first witness was Matisa. He

testified when he reviewed the security footage, he saw the same person multiple

times. The man was wearing a red shirt, long denim shorts, a black cloth cap,

and a lanyard around his neck. Matisa did not recognize the individual but

observed him "stop[ping] in front of [Matisa's] business multiple times,

bring[ing] objects to and from and all that . . . ." To Matisa, "[i]t looked like the

person was taking–right away in the video you watch cardboard and–or wood

directly from where the trash was in the sidewalk and in front of the business

and then there's footage of the person leaving with a gas can as well." During

Matisa's testimony, still photographs from the surveillance footage were entered

into evidence without objection.

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 Detective Gregory Hollo also testified for the State about the surveillance

footage that was retrieved. When Detective Hollo was asked to describe a

portion of the footage, the following occurred:

[DETECTIVE HOLLO]: Basically, the individual,
Wendell Johnson, again walking from the area of
Franklin Street towards the –

[STANDBY COUNSEL]: Excuse me, I— Judge, I
didn't quite hear what the witness was saying.

[DETECTIVE HOLLO]: The individual is—known
as—we knew as Wendell Johnson walking from
Franklin Street towards the tattoo shop.

[STATE]: Okay.

[STANDBY COUNSEL]: I'm going to object to the
reference of Wendell Johnson.

THE COURT: Sustained.

[STANDBY COUNSEL]: I didn't hear him the first
time. It might have been said two or three different
times (indiscernible) reference to the individual
standing—sitting to my right as well (indiscernible)[.]

THE COURT: Sustained.

Detective Hollo then testified the video depicted an individual walking

along the alleyway, carrying an item that looks like a "[r]ed plastic gas can with

a black spigot—a plastic spigot." Detective Hollo stated based on the subject's

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clothing, size, shape, and relative features, it seemed to be the same person that

passed in front of that same camera angle two times earlier in the morning.

Detective McNair also testified for the State and explained defendant was

his cousin and he had known defendant for his entire life. He knew him by two

names: Lamar Hill and Wendell Johnson. He testified that in a photograph

taken during the summer of 2018, defendant was wearing clothing like that seen

in the still frame from the security footage.

Detective McNair further testified to receiving a phone call from

defendant, who stated he knew the police were looking for him based on the

circulated photographs. Defendant asked Detective McNair to accompany him

and his attorney to the police station so defendant could turn himself in. After

the call ended, Detective McNair immediately contacted his supervisor and

reported the phone call. On cross-examination, defendant asked Detective

McNair about their family relationships, establishing defendant's mother,

Detective McNair's aunt, also used the surnames Hill and McNair.

Parole Officer Traendly also testified for the State. Officer Traendly did

not reference his job as a parole officer, but testified he had known defendant

for approximately a year, had interacted with him "ten times[,]" which would

last "[a]nywhere from a few minutes to upwards [of] an hour or two." Traendly

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testified he responded to the press release after identifying defendant, noting the

clothing, hat, and lanyard in the photograph were the same defendant wore

during Traendly's most recent interaction with him.

Detective Marc Masseroni from the Mercer County Prosecutor's Office

testified for the State. The detective testified to reviewing the security footage,

which was already in evidence. Detective Masseroni testified the individual on

the surveillance video was "walking up with, what appears to be, some kind of

container in his right hand, walking across the street towards [the parlor]."

Detective Masseroni testified the footage showed the individual leaning over the

front door of the parlor and its stoop and later standing towards the iron gate to

the alleyway. The following testimony then ensued:

[STATE]: Can you describe what you just observed
that individual doing?

[DETECTIVE MASSERONI]: That individual
extended his arm, turned his arm upside down, with his
thumb facing down, almost indicating that he was either
pouring something out, or turning his hand upside
down, with the container that was in his hand.

As the video continued, Detective Masseroni testified, it "[l]ooked like he

attempted to ignite something towards the base of the front door, as well as,

possibly, towards the middle, a couple times, pulled away from it quickly, and

started running . . . ." Defense counsel objected to this testimony as speculative,

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and at sidebar argued it was the jury's place to determine what the individu al in

the video was doing. The court instructed, "I think you just need to — just have

him keep his responses strictly to what action he observes." Defense counsel

did not request, and the court did not give, any curative instruction.

Defendant re-called Detective Hollo and presented him with a report

showing Wendell Johnson's and Lamar Hill's phone numbers were different.

After the defense rested, the court reviewed the final jury charge and the jury

sheet with the parties. Defendant stated he had no objection to either.

After summations, the court charged the jury. At sidebar, the court asked

if there were any objections to the jury charge, and there were none. The court

also offered for counsel to make sure all the evidence was in order.

During deliberations, the jury requested playback of the video, including

pausing on specific frames and enlarging portions showing the individual

walking and running. The jury returned a unanimous guilty verdict on the

charge of aggravated arson.

After the jury was dismissed, Juror Number Two contacted the court's

chambers. With defendant and State's attorney's present, and standby counsel

on the telephone, the court called the juror in for discussion on the record. The

following exchange ensued:

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 THE COURT: —was there any outside influence that
would have—that created . . . —your phone call to my
chambers after you agreed with the verdict, as it was
announced by the foreperson?

JUROR NO. 2: No. I actually, all along going in, they
kind of swayed me to, in a way, in there. I was the only
one who said not guilty, and it was kind of a swayed
decision and then I wanted to come out and feel—

THE COURT: But did —nobody twisted your arm or
forced you—

JUROR NO. 2: No.

THE COURT: —to do anything—

JUROR NO. 2: No, no, no.

THE COURT: —that you didn't want to do?

JUROR NO. 2: No, no.

THE COURT: And there was no outside influence—

JUROR NO. 2: No, no.

THE COURT: —from outside of the courtroom

JUROR NO. 2: No.

Post-trial, defendant continued motion practice, including that the

indictment should be dismissed for technical violations, that a new trial was

warranted because of various procedural and substantive violations,

prosecutorial misconduct, and that standby counsel was able to sit too close to

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him in violation of covid protocols, which delayed his sentencing date multiple

times. The court denied defendant's motions, stating, "None of these allegations

separate or together diminish the evidence . . . upon which [d]efendant . . . was

convicted." Defendant had not "offered sufficient newly discovered evidence

upon which the court could grant a new trial[,]" and the motion was untimely

under Rule 3:20-2. The trial court wrote it "carefully considered [defendant's]

nine points presented both in his moving papers and reiterated during oral

argument[,]" but found they were "not sufficient to overcome the evidence and

the rational inferences drawn from the evidence which were presented to the

grand jury."

Prior to sentencing, defendant was ordered to undergo a psychological

examination for the purposes of mitigation for sentencing, which defendant

refused. At defendant's March 4, 2022 sentencing hearing, his remaining post -

trial motions were dismissed. The State argued for an extended sentence as a

persistent offender. Defendant argued his prior convictions should not be

considered because they either had procedural defects, were a result of a guilty

plea, or were pending appeal. Defendant also argued his mental illness should

protect him from receiving an extended term. The State responded defendant's

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illness appeared to be self-reported and only raised selectively. The State

emphasized defendant was found competent to represent himself at trial.

Although the court found defendant eligible for an extended term as a

persistent offender, it declined to sentence him in that manner. The judge did

consider defendant's proffered mental health records, stating, "defendant may

have some psychological disorder or ailment that might affect his ability to make

decisions." After careful review of the presentencing report, aggravating and

mitigating factors, and the weight accorded to each, defendant was sentenced to

ten years, subject to NERA, and a subsequent three years of parole supervision,

plus fines and penalties. At sentencing, defendant's three other indictments were

dismissed by the State.

On appeal, defendant raises the following issues:5

POINT I: THE TRIAL COURT ERRED BY
CONCLUDING [DEFENDANT] KNOWINGLY

5
After defense counsel filed their appellate brief, defendant asked to represent
himself at oral argument while still relying on the attorney's brief, maintaining
that his December 2018 waiver of counsel before the trial court should apply to
his appellate proceedings. On November 23, 2022, we denied defendant's
motions to waive representation and proceed pro se at oral argument. On
January 5, 2023, defense counsel moved to be relieved. On January 9, 2023, we
ordered a limited remand for a hearing pursuant to State v. Coon, 314 N.J. Super.
426 (App. Div. 1998), on the validity of defendant's waiver of right to counsel
on appeal. On February 16, 2023, at the Coon hearing, defendant withdrew his
motion to waive appellate counsel. We then vacated the order for limited
remand, and the matter proceeded.
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 WAIVED HIS RIGHT TO COUNSEL BECAUSE IT
QUIZZED HIM ABOUT HIS LEGAL KNOWLEDGE
AND DID NOT EXPLICITLY TELL HIM THE
NECESSARY INFORMATION.

A. The Court Quizzed [Defendant] about
His Knowledge of Criminal Procedure
Rather than Tell Him about the Required
Topics

B. The Court Did Not Tell [Defendant]
about the Nature of the Charge: Its
Elements and Lesser Included Offenses.

C. The Court Did Not Tell [Defendant]
about Statutory Defenses He Could Raise.

POINT II: DETECTIVE MASSERONI'S
NARRATION OF SECURITY FOOTAGE AND
DETECTIVE HOLLO'S IDENTIFICATION OF THE
PERSON IT DEPICTED IMPERMISSIBLY
INFRINGED ON THE JURY'S FUNCTION.

In his pro se brief, defendant raises the following additional points:

POINT I:
A: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION

B: THE PROSECUTOR COMMITTED
MISCONDUCT AND ABUSED ITS PROCESS

C: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION

D: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION

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 POINT II
A-S: THE TRIAL COURT ABUSED ITS
DISCRETION.

T-Z6: THE TRIAL COURT ERRORED AT
SENTENCE.

II.

We begin with defendant's contention that the trial court erred by not

ensuring his waiver of his right to counsel satisfied the mandates of State v.

Outland, 245 N.J. 494, 506 (2021). Defendant maintains the colloquy was "like

a quiz or a bar examination," rather than a provision of necessary information.

When defendant was not able to answer his questions, the court just "accepted

his ignorance."

Criminal defendants have a constitutional right to self-representation

when the decision is made knowingly and intelligently. Id. at 505 (citing Faretta

v. California, 422 U.S. 806, 835 (1975)). Relinquishing one's right to counsel

requires the court to be satisfied the defendant understands the implications of

the decision. State v. Crisafi, 128 N.J. 499, 509 (1992) (citing Faretta, 422 U.S.

at 835). A defendant's right to self-representation "is about respecting

[defendants'] capacity to make choices for [themselves], whether to [their]

benefit or to [their] detriment." State v. Reddish, 181 N.J. 553, 585 (2004); see

also State v. Rose, 458 N.J. Super. 610, 627 (App. Div. 2019). In State v.

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DuBois, 189 N.J. 454, 468-69 (2007), the Court synthesized the requirements of

Crisafi and Reddish and provided sixteen topics about which the court must

inform a defendant wishing to proceed pro se. When a colloquy addresses the

topics in large part but not completely, such a failure to inform does not

necessarily render the waiver fatal. DuBois, 189 N.J. at 475.

A trial court's determination that a defendant knowingly and voluntarily

waived his right to representation is reviewed for abuse of discretion. Ibid. "A

court abuses its discretion when its 'decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State

v. R.Y., 242 N.J. 48, 65 (2020) (internal citations omitted)).

Specifically, defendant maintains the trial court failed to provide him with

the elements of an aggravated arson charge and the lesser-included offenses

besides third-degree arson. For example, he claims he was not informed the

State was required to prove that the fire was started with the purpose of

destroying the building and of the possible lesser-included charges such as

criminal mischief or disorderly conduct. Finally, he argues the court did not

inform defendant of the statutory defenses available to him. The State maintains

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the record reflects defendant's understanding of the ramifications of proceeding

pro se, and he made a knowing and intelligent waiver.

In its colloquy with defendant, the trial court addressed the nature of the

charges, the possible penalties, the difficulties posed by procedural and

evidentiary rules, possible complications with his own testimony, and that self-

representation did not lead to favorable outcomes. While it is true that the court

found defendant did not understand his statutory defenses, defendant testified

his intended trial strategy of misidentification would not require them.

Moreover, defendant appropriately acknowledged the case had not been

presented to a grand jury yet, so he did not know, but he would read up and

understand the available defenses and lesser-included crimes. Defendant also

testified as to his extensive prior history with the criminal justice system,

including earlier successful self-representation. Like the defendant in Outland,

defendant "did not waver in his desire to represent himself." 245 N.J. at 509.

Like the "court-wise criminal who fully appreciated the risks of proceeding

without counsel" in Crisafi, defendant proceeded "with his eyes open." 128 N.J.

at 513 (citing Faretta, 422 U.S. at 835).

Further, review of the record shows a defendant who was dogged in his

determination to self-represent, as evidenced by his conduct during pre-trial

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motions practice, at trial, and post-trial. Defendant was made aware of the

consequences of his self-representation at multiple points and still refused to

rely on his standby counsel in any meaningful way, let alone make any

indication that he was dissatisfied with his waiver. Since the focus of the

colloquy is to determine defendant's actual understanding of the implications of

waiver, which defendant repeatedly displayed both at the hearing and throughout

these proceedings, the record reflects defendant's steadfast desire to self-

represent would not have been impacted by any other colloquy.

III.

We next address defendant's argument that it was improper for Detective

Masseroni to narrate the video and for Detective Hollo to testify the person on

the video was later identified as defendant. Defendant distinguishes between

the admissibility of an objective description of the action on the screen and a

subjective commentary on the significance of that action. Defendant argues

narration testimony must satisfy N.J.R.E. 701(b) and "assist in understanding

the witness' testimony or determining a fact in issue," or otherwise it

impermissibly invades the province of the jury. He also emphasizes that a police

officer may not opine as to a defendant's guilt. He stresses neither officer was

present at the scene during the arson and thus their review of the footage was no

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different than the jury's, and their subjective opinions of the material facts and

events depicted in the video violated N.J.R.E. 701.

Decisions on the admission or exclusion of evidence are subject to review

for abuse of discretion. State v. Rochat, 470 N.J. Super. 392, 453 (App. Div.

2022). This includes an evidentiary ruling on the admissibility and scope of

narration testimony. State v. Watson, 254 N.J. 558, 602 (2023) (citing State v.

Singh, 245 N.J. 1, 20 (2021)).

Lay witnesses may testify "in the form of opinions or inferences if [the

testimony]: (a) is rationally based on the witness' perception; and (b) will assist

in understanding the witness' testimony or determining a fact in issue." N.J.R.E.

701. In State v. McLean, 205 N.J. 438, 456 (2011),6 the Court explained that to

be admissible under N.J.R.E. 701, lay opinion testimony by police officers must

6
Starting with McLean and ending with Watson, our Court has developed
further principles in regard to "narration testimony." See also State v. Allen,
254 N.J. 530, 543-49 (2023) (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); Singh, 245 N.J. at 12-20 (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,
64-77 (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 a defendant closely resembled a composite sketch).
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be based (1) on the officers' firsthand perceptions, and (2) must be helpful to the

jury while not unduly prejudicial to a defendant. Additionally, lay opinion

testimony must not constitute "an expression of a belief in defendant's guilt" or

"an opinion on matters that were not beyond the understanding of the jury." Id.

at 463.

The Watson Court clarified 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. Synthesizing N.J.R.E. 701, 602, and 403, the

Watson Court provided a framework for such determinations. Id. at 600-02.

Narration testimony must not "offer opinions on the content of a recording or

comment on reasonably disputed facts." Id. at 602. While the perception prong

of N.J.R.E. 701 is satisfied when the witness' knowledge was acquired through

reviewing video footage, whether the helpfulness prong is satisfied "turns on the

facts of each case." Ibid. The Court also cautioned, "a witness cannot testify

that a video shows a certain act when the opposing party reasonably contends

that it does not." Id. at 603. The Court included "a reasonableness requirement

to prevent a party from disputing all facts in a recording in a manner that does

not reflect good faith." Ibid.

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 Defendant argues Detective Masseroni's testimony that the person in the

video was "pouring something out, or turning his hand upside down, with the

container that was in his hand," and later "attempting to ignite something,"

impermissibly infringed on the jury's role as factfinder. We are unpersuaded.

Detective Masseroni's testimony was largely a factual description of the

events on the screen. Further, defendant's theory of the case was one of mistaken

identity. It was not reasonably disputed that the man in the video carried a gas

can, gathered trash from the alleyway, bent over the pile, and smoke and fire

appeared shortly after he ran away. These were not facts defendant could

"reasonably contend" were disputed. Therefore, even to the extent that

Detective Masseroni's narration of the man's actions constituted a lay opinion

and not a recitation of his factual observations, under the facts of this case, his

testimony did not run afoul of Watson. Further, defendant elicited very similar

testimony from Matisa during cross-examination.

Defendant also argues Detective Hollo impermissibly identified the

individual on the screen as "Wendell Johnson," and "the individual we learned

to be Wendell Johnson." Detective Hollo's identification testimony was more

problematic than Masseroni's fact testimony because it amounted to an

impermissible "expression of a belief in defendant's guilt . . . ." McLean, 205

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N.J. at 463. However, we are unpersuaded that the admission of the officers' lay

opinion testimony requires a new trial. Where such an impermissible

identification is made during narration testimony, such an error may be harmless

"given the fleeting nature of the comment" and in context of other, proper

testimony. Singh, 245 N.J. at 17. Given the sustained objection and given the

quality of the video footage and still shots, the identifications provided by

Detective Matisa, Detective McNair, Parole Officer Traendley, and defendant's

phone call to Detective McNair, Detective Hollo's impermissible identification

testimony was not clearly capable of leading to an unjust result.

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 what was

depicted on a surveillance video). Further, neither defendant nor his standby

counsel requested the curative instruction defendant now maintains was

required. Our Supreme Court has cautioned that a new trial granted for an error

"easily . . . cured on request[] would reward the litigant who suffers an error for

tactical advantage . . . ." Singh, 245 N.J. at 13 (alteration in original) (citing

State v. Santamaria, 236 N.J. 390, 404-05 (2019)).

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 IV.

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 as the record either lacks factual support for, or blatantly contradicts,

defendant's assertions. R. 2:11-3(e)(2).

Affirmed.

A-2503-21
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