STATE OF NEW JERSEY VS. S.B. (14-03-0417, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3705-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
S.B.,
Defendant-Appellant.
___________________________
Submitted January 22, 2018 – Decided June 27, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
14-03-0417.
Miller, Meyerson & Corbo, attorneys for
appellant (Gerald D. Miller, of counsel and
on the briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant S.B. was charged in an indictment with first-degree
kidnapping, N.J.S.A. 2C:13-1(b) (count one); third-degree criminal
restraint, N.J.S.A. 2C:13-2 (count two); third-degree aggravated
assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four);
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count five); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); third-
degree aggravated assault with an attempt to cause significant
bodily injury, N.J.S.A. 2C:12-1(b)(7) (count fourteen); third-
degree terroristic threats, N.J.S.A. 2C:12-3(a) (count fifteen);
and eight counts of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a) (counts three, seven, eight, nine, ten,
eleven, twelve, and thirteen).
Following a February 2015 jury trial, defendant was found not
guilty of count four and count fourteen. The jury could not reach
a verdict on the remaining charges, and defendant was retried in
September 2015.
The record of the re-trial shows that in August 2013, twenty-
six-year-old K.G. went to the Hudson County Social Services office
in Jersey City. She locked her keys in her car and encountered
defendant, who assisted her in gaining entry to her vehicle.
Defendant said he was a supervisor at Social Services and that he
had employment positions he needed to fill. In fact, defendant
worked in a nearby office's mailroom. K.G. gave defendant her
phone number.
2 A-3705-15T4
The next morning, defendant sent K.G. a text message
requesting her resume. K.G. then met defendant in the parking
garage where she encountered him the previous day, and gave him
her resume in an envelope. Defendant told K.G. he would attempt
to set up an interview for her the following day.
The next day, defendant sent a text message to K.G. advising
that he had "good news." Defendant spoke to K.G. over the phone,
said he scheduled her interview for the following week, and asked
if she would meet him at a bowling alley to talk about the position
and "hang out." K.G. agreed.
When K.G. later arrived at the bowling alley, defendant said
he did not have any cash and needed to return to his apartment.
K.G. agreed to accompany him, and they went to defendant's
apartment together.
Once inside of the apartment, K.G. observed that defendant
had a knife in his hand. According to K.G., defendant struck her
in the face, said "shut up, bitch," put the knife to her back, and
guided her to the bedroom. Defendant told K.G. that she and her
brother had robbed him, and directed that she remove her clothes
so that he could look for a tattoo. K.G. removed her clothes, and
defendant said she was not the person who had robbed him and told
her to put her clothes back on. Moments later, defendant told
3 A-3705-15T4
K.G. he did not like the way she looked at him, and ordered her
to remove her clothes again.
K.G. testified that defendant continued to threaten her with
the knife, forced her to perform fellatio, and tied her hands and
feet to the bed with belts. Over the course of the following six
hours, defendant struck and punched K.G., threatened her, and
repeatedly penetrated her vaginally and anally. K.G. also reported
defendant performed cunnilingus against her will.
When defendant fell asleep in the bed with the knife in his
hands, K.G. wriggled free from the restraints and stabbed defendant
in the neck and chest, believing it would slow him down if he
pursued her. Defendant awoke, and ran to the bathroom. K.G. fled
the apartment.
K.G. knocked on the door of a nearby apartment and screamed
for help. Defendant pursued K.G., and attempted to pull her back
into his apartment. Still armed with the knife, K.G. stabbed
defendant, who punched K.G. in the mouth. K.G. continued stabbing
defendant until the blade broke apart from the knife's handle.
K.G. ran to another apartment, where Lucius Williams answered
the door and called 9-1-1. Williams testified that K.G. was naked,
covered in blood, and appeared "hysterical" and "terrified." After
the police arrived, K.G. was transported to the hospital where a
4 A-3705-15T4
nurse photographed her injuries and conducted a sexual assault
rape kit examination.
Jersey City Police Officer Patrick Kenneth Egan testified he
was dispatched to the scene, and observed that K.G. had scrapes
and scratches on her body, a bruised face, a cut on her lip, a
bruised wrist and a laceration on her left arm. Egan found
defendant lying face-down in the hallway. Defendant was also
transported to the hospital.
During the subsequent investigation, the police recovered the
knife handle and blade from the scene, as well as gray and black
belts, a Viagra pill, two condom wrappers and two used condoms
from defendant's apartment. Investigators also recovered security
camera recordings from the parking garage where K.G. and defendant
first met and from the mailroom in which defendant was employed.
The recordings showed K.G. and defendant together in the garage.
Hudson County Prosecutor's Office Detective David Abromaitis
testified that the recordings, which were played for the jury,
also showed defendant holding the envelope in the garage and later
opening a manila envelope and placing the envelope on a table in
the mailroom. Abromaitis testified without objection that he
"believed" the envelope contained K.G.'s resume.
The trial evidence also showed the results of a forensic
analysis of swabs and samples recovered from the rape kit
5 A-3705-15T4
examination, and a buccal swab obtained from defendant. New Jersey
State Police Laboratory forensic scientist Linnea Schiffner was
qualified as an expert in the area of forensic DNA analysis.
Schiffner explained that the DNA tests and analysis she performed
established that defendant was the source of the blood found on
K.G.'s back and right leg, and that he was a possible DNA
contributor to what may have been saliva taken from K.G.'s vaginal
swabs. Schiffner's testified in detail concerning her report
describing the results of the DNA analysis, and the report was
admitted in evidence without objection.
The jury found defendant guilty of: count one, first-degree
kidnapping, N.J.S.A. 2C:13-1(b); count two, third-degree criminal
restraint, N.J.S.A. 2C:13-2; count three, first-degree aggravated
sexual assault during a kidnapping, N.J.S.A. 2C:14(a)(3); count
thirteen as amended, second-degree sexual assault by force,
N.J.S.A. 2C:14-2(c)(1); count fourteen as amended, simple assault,
N.J.S.A. 2C:12-1(a); and count fifteen, third-degree terroristic
threats, N.J.S.A. 2C:12-3(a). Defendant was acquitted of the
remaining charges.
Following the merger of the offenses at sentencing, the court
imposed a sentence of life without parole subject to the
requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, on
the first-degree kidnapping charge, and concurrent sentences on
6 A-3705-15T4
the remaining charges. The court ordered that defendant serve the
special sentence of parole supervision for life, N.J.S.A. 2C:43-
6.4, and comply with the requirements of Megan's Law, N.J.S.A.
2C:7-1 to -23.
Defendant appealed, and presents the following arguments for
our consideration:
POINT I
THE TESTIMONY OF A STATE'S WITNESSES INVADED
THE PROVINCE OF THE JURY AND DEPRIVED THE
DEFENDANT OF HIS RIGHT TO HAVE HIS GUILT
DETERMINED BY THE JURY[.]
POINT II
THE REPORT OF [THE] STATE'S FORENSIC EXPERT
WAS ERRONEOUSLY ADMITTED INTO EVIDENCE[.]
POINT III
[] [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL
BECAUSE OF ERRORS IN THE VERDICT SHEET
SUBMITTED TO THE JURY[.]
POINT IV
[DEFENDANT] WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL[.]
a. TRIAL COUNSEL FAILED TO OBJECT TO
TESTIMONY OF A STATE'S WITNESS [WHICH] INVADED
THE [PROVINCE] OF THE JURY AND
DETERMIN[ATIONS] BY THE JURY[.]
b. TRIAL COUNSEL DID NOT OBJECT TO THE
REPORT OF STATE'S FORENSIC EXPERT ADMITTED
INTO EVIDENCE[.]
7 A-3705-15T4
[c.] TRIAL COUNSEL FAILED TO OBJECT TO AN
ERRONEOUS VERDICT SHEET WHICH WAS SUBMITTED
TO THE JURY[.]
[d.] TRIAL COUNSEL FAILED TO MAKE A MOTION FOR
A NEW TRIAL THAT THE VERDICT OF THE JURY WAS
CONTRARY TO THE WEIGHT OF THE EVIDENCE[.]
Defendant's supplemental brief raises the following
arguments:
POINT I
THE COURT SHOULD NOT HAVE DELIVERED A
SUPPLEMENTAL INSTRUCTION WHEN THE JURY STATED
IT WAS DEADLOCKED ON SOME CHARGES.
POINT II
[DEFENDANT] WAS DEPRIVED OF DUE PROCESS BY NOT
HAVING THE DOCTOR WHO TREATED HIM CALLED AS A
DEFENSE WITNESS.
Defendant makes the following arguments in his pro se brief:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ALLOWING
DEFENDANT TO TAKE THE STAND TO SHOW K.G.
VOLUNTARILY CAME TO DEFENDANT'S PLACE OF
RESIDENCE.
POINT II
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
INFORMING DEFENDANT A POTENTIAL CONFLICT OF
INTEREST [THAT] EXISTED SINCE TRIAL COUNSEL
REPRESENTED THE COUNTY OF HUDSON IN [A] LEGAL
MATTER AND WAS AN EMPLOYEE OF JERSEY CITY.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE WAY THE TRIAL COURT HANDLED THE
8 A-3705-15T4
JURY NOTE THAT SAID JURORS AGREED ON SOME
COUNTS BUT WERE AT AN IMPASSE ON OTHERS.
POINT IV
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
REQUEST TO SHOW THE VIDEO FOOTAGE OF K.G.
INTERVIEW SHOWING [] K.G.'S DEMEANOR WAS
CONSISTENT WITH A PERSON WHO DID NOT TAKE
THEIR PRESCRIBED MEDICATION.
I.
We consider each of the trial court's alleged errors under
the plain error standard, R. 2:10-2, because defendant did not
object to the admission of the evidence or the court's jury
instructions concerning errors in the verdict sheet. Under the
plain error standard, defendant must demonstrate the alleged
errors were "clearly capable of producing an unjust result." R.
2:10-2. That is, the errors must be "sufficient to raise a
reasonable doubt as to whether [they] led the jury to a result it
otherwise might not have reached." State v. R.B., 183 N.J. 308,
330 (2005) (quoting State v. Bankston, 63 N.J 263, 273 (1973));
see also State v. Macon, 57 N.J. 325, 336 (1971).
A.
Defendant first argues it was plain error to admit
Abromaitis's testimony that he "believed" the folder defendant
held in the security recordings contained K.G.'s resume. He argues
9 A-3705-15T4
the testimony constituted an impermissible lay opinion which
invaded the province of the jury's fact-finding function.
"Lay witnesses may present relevant opinion testimony in
accordance with Rule 701, which permits 'testimony in the form of
opinions or inferences . . . if it . . . is rationally based' on
the witness' 'perception' and 'will assist in understanding the
witness' testimony or in determining a fact in issue." State v.
Lazo, 209 N.J. 9, 22 (2012) (alteration in original) (emphasis in
original) (quoting N.J.R.E. 701).
In State v. McLean, 205 N.J. 438, 460 (2011), the Court
discussed the parameters of permissible lay opinion testimony from
a police officer, explaining that "lay opinion testimony is limited
to what was directly perceived by the witness and may not rest on
otherwise impermissible hearsay."
The Court held that an officer is permitted to provide "fact
testimony," based on "what he or she perceived through one or more
of the senses." Ibid. However, "[t]estimony of that type includes
no opinion, lay or expert, and does not convey information about
what the officer 'believed,' 'thought' or 'suspected,' but instead
is an ordinary fact-based recitation by a witness with first-hand
knowledge." Ibid. Lay opinion testimony "is not a vehicle for
offering the view of the witness about a series of facts the jury
can evaluate for itself . . . ." Id. at 462.
10 A-3705-15T4
More recently, in Gonzales v. Hugelmeyer, 441 N.J. Super.
451, 459 (App. Div. 2015), we determined a police officer gave
inadmissible lay opinion testimony when he opined about which
driver was at fault in a motor vehicle accident. We found that
because the officer "had no personal observation or recollection
of the accident . . . his opinions . . . failed the foundational
requirements of Rule 701," and determined that "a police officer
cannot provide an opinion at trial when that opinion is based
primarily on the statements of eyewitnesses." Id. at 460 (citation
omitted).
Here, Abromaitis's testimony that he believed the document
defendant was seen holding was K.G.'s resume constituted an
impermissible lay opinion, was not based on personal knowledge,
and was dependent on what others told him about K.G.'s resume.
Moreover, the jury was able to view the recordings and make its
own determination, based on competent testimony, as to whether
defendant held K.G.'s resume. We therefore agree the officer's
testimony about what he believed defendant was holding constituted
inadmissible lay opinion testimony.
Nevertheless, we are convinced that introduction of the
testimony was not clearly capable of producing an unjust result.
R. 2:10-2. Defendant failed to object to the testimony and we
therefore assume that counsel did not consider it to be significant
11 A-3705-15T4
in the context of the trial. See State v. Ingram, 196 N.J. 23,
42 (2008). Moreover, the jury was correctly instructed concerning
its role as the finders of fact, and we assume the jury followed
the court's instructions. State v. Loftin, 146 N.J. 295, 390
(1996).
Moreover, the overwhelming evidence showed defendant and K.G.
together in the parking garage and at his apartment. The
surveillance camera recordings show them together at the parking
garage, and later the police found K.G. naked and bloody at
defendant's apartment building, with defendant lying nearby after
being stabbed numerous times. K.G. admitted to stabbing defendant,
and defendant's blood was found on K.G.'s back and right leg. K.G.
reported she watched the movie Scarface in defendant's apartment,
and the police recovered a recording of the movie in defendant's
bedroom. Indeed, as defendant acknowledges in his brief, he argued
to the jury that he was attacked by K.G. and thus was the victim.
In our view, the detective's opinion about the contents of
the envelope was of virtually no probative value. The primary
issue in this case was who was the aggressor during the
interactions between defendant and K.G. The testimony concerning
the resume added little to the resolution of that issue. In
addition, K.G. independently testified the envelope defendant held
in the surveillance recording contained her resume. In any event,
12 A-3705-15T4
the admission of the testimony was not clearly capable of producing
an unjust result, and defendant fails to make a showing there is
a reasonable doubt that admission of the testimony may have "led
the jury to a result it otherwise might not have reached." R.B.,
183 N.J. at 330.
B.
Defendant next argues that because Schiffner testified in
detail concerning the findings supporting her forensic analysis
of the DNA evidence, it was error to admit her report. Relying
on our decisions in Schneiderman v. Strelecki, 107 N.J. Super. 113(App. Div. 1969), and Corcoran v. Sears Roebuck, 312 N.J. Super.
117, 126 (App. Div. 1998), defendant argues that "[w]hen a person
fully testifies her report is not also permitted to be introduced
into evidence."
Our decision in Schneiderman provides no support for
defendant's argument. In Schneiderman, 107 N.J. Super. at 118,
we determined that a police report concerning an automobile
accident may constitute an admissible business record under
N.J.R.E. 63(13) (now codified as N.J.R.E. 803). We explained that
although it may have been prejudicial to admit the report "where
its contents had been fully developed by the oral testimony," its
probative value greatly outweighed any prejudice and the court did
13 A-3705-15T4
not abuse its discretion by admitting the report in evidence. Id.
at 120.
Our decision in Corcoran also does not support defendant's
argument. In Corcoran, we considered whether an expert's report
was admissible under N.J.R.E. 803(b)(2) as a party's adoptive
admission. 312 N.J. Super. at 125-28. We also determined that an
expert cannot be cross-examined with a report prepared by a
different expert, where the testifying expert did not rely on the
secondary report as a basis for his or her opinion. Id. at 130.
Our decision in Corcoran, however, is inapposite here because
there is no contention that Schiffner's report constituted an
adoptive admission under N.J.R.E. 803(b)(2), or was improperly
used to cross-examine a witness. Thus, this case presents none
of the circumstances extant in Corcoran.
Defendant argues that Schiffner's detailed testimony
concerning her analysis of the DNA test results rendered admission
of her report unnecessary and prejudicial because it provided the
State with "two bites of the apple."1 Thus, defendant essentially
1
We limit our analysis concerning the admission of the lab report
to the arguments asserted in defendant's brief. Any issue not
briefed on appeal are deemed waived. Jefferson Loan Co. v.
Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick
v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
14 A-3705-15T4
contends the report was inadmissible under N.J.R.E. 403 because
its "probative value is substantially outweighed by the risk of
. . . undue prejudice."
We find no merit to this contention. The jury heard detailed
testimony from Schiffner concerning the DNA testing and results,
and her report. Defendant makes no showing that admission of the
report created a risk of undue prejudice, nor could he. The report
showed little more than defendant's blood was found on K.G.'s back
and right leg, and there was no dispute K.G. stabbed defendant
multiple times and was bloodied as a result. The report also
showed defendant's saliva may have been found on K.G.'s vagina,
but defendant did not dispute he had sexual relations with K.G.,
and he was acquitted of the aggravated sexual assault charge based
on the claim he performed cunnilingus by force. Admission of the
report created no risk of undue prejudice to defendant.
Defendant does not claim the report constituted inadmissible
hearsay, and we therefore need not address the issue or consider
whether the report was admissible under an exception to N.J.R.E.
802. See, e.g., State v. Matulewicz, 101 N.J. 27, 28-32 (1985)
(explaining the application of the business records exception,
N.J.R.E. 803(c)(6), and the public records exception, N.J.R.E.
803(c)(8), to the admission of a "State Police chemist's"
laboratory report); State v. Oliveri, 336 N.J. Super. 244, 249-
15 A-3705-15T4
251 (App. Div. 2001) (finding a State laboratory report admissible
under N.J.R.E. 808); see also State v. Miller, 170 N.J. 417, 426-
27 (2002). Based on our review of the record, even if it was
error to admit the report, defendant fails to make any showing the
error was clearly capable of producing an unjust result. R. 2:10-
2.
C.
Defendant next claims he was deprived of a fair trial because
of errors in the initial verdict sheet submitted to the jury. He
contends the errors were not corrected until after the jury first
reported it had resolved "most of the charges but remain[ed] at
an impasse on others," and that the court never determined if the
errors caused any confusion.
The initial verdict sheet included questions that were
numbered to match the corresponding counts of the indictment. 2
Thus, questions beginning with the number one pertained to the
charge in count one, and so on.
2
In his brief, defendant quotes from certain portions of the
initial verdict sheet and cites to a verdict sheet in his appendix
that does not show the quoted language. Although the verdict
sheet about which defendant complains is not included in the
appendix, it is of no moment. We glean the verdict sheet errors
from the trial record and briefs submitted, and the parties do not
dispute the nature of the error contained in the initial verdict
sheet.
16 A-3705-15T4
The court charged the jury on lesser-included offenses for
certain offenses charged in the indictment. For the counts that
included lesser-included offenses, the verdict sheet first asked
how the jury found on the charged count, and directed the jury to
respond to the verdict sheet question concerning the lesser-
included offense if it found not guilty of the charged offense.
For example, question four on the verdict sheet first asked how
the jury found on the charge contained in count four. The verdict
sheet also instructed that if the jury found defendant guilty of
the charge in count four, the jury should proceed to question
five, which addressed the charge in count five. However, the
verdict sheet instructed that if the jury found defendant not
guilty of count four, it should proceed to question "4A," which
asked for the jury's verdict on the lesser-included offense charged
under count four.
The same framework was employed for the questions related to
the charges in counts six through twelve, and the lesser-included
offenses for each. The error in the initial verdict sheet on
those counts occurred as the result of mis-numbering. For example,
question six, which was intended to address count six and its
lesser-included offense, directed that if the jury found defendant
not guilty of count seven, it should proceed to question "7A," and
if it found defendant guilty of count seven it should proceed to
17 A-3705-15T4
count eight. The questions for counts seven through twelve
suffered from the same infirmity, with each incorrectly numbering
the counts and questions count next above that which was intended.
After two days of deliberations, the jury sent a note to the
court stating it "resolved most of the charges but remain[ed] at
an impasse on others. We do not believe we will get resolved
without jurors going against their honest conviction. How to
proceed?" Without objection, the court then instructed the jury
in accordance with the relevant Model Jury Charge to continue its
deliberations. See Model Jury Charges (Criminal), "Judge's
Instructions on Further Jury Deliberations" (approved Jan. 14,
2013). The jury then retired to the jury room to continue its
deliberations.
The court subsequently notified counsel of the error in the
verdict sheet, and provided counsel with a corrected version. The
parties agreed the court would provide a corrected verdict sheet
to the jury, and explain the error. The court informed the jury
of the error, gave the jury the corrected verdict sheet, explained
the corrected verdict sheet, and instructed the jury that its
verdict must be unanimous.
The jury later reported its verdict based on the corrected
verdict sheet. The foreperson reported the jury's verdict on each
count and lesser-included offense in response to the questions
18 A-3705-15T4
posed on the corrected verdict sheet. The jurors were polled and
affirmed their agreement with the verdict announced by the
foreperson.
Errors in jury verdict sheets not brought to the attention
of the trial court are reviewed for plain error. State v. Galicia,
210 N.J. 364, 386 (2012). We consider "[t]he verdict sheet, in
conjunction with the jury charges," in determining whether an
error in the verdict sheet constitutes plain error because they
"constitute[] the trial court's direction[s] to the jury." Ibid.Where the verdict sheet contains an error, "but the trial court's
charge has clarified the legal standard for the court to follow,
the error may be deemed harmless." Id. at 387.
In State v. Gandhi, 201 N.J. 161, 198 (2010), the Court
rejected the defendant's assertion that a typographical error in
the verdict sheet stating he was charged with committing the
offenses between June of 2003 and February of 2003, instead of
February of 2004, "misled or confused the jury." The Court noted
the defendant did not point to any evidence in the record showing
the jury was misled or confused. Ibid. The Court determined that
"[g]enerally, a mere, and obvious, typographical error would not
have the capacity to mislead the jury as to consideration of the
elements of the offenses." Ibid.19 A-3705-15T4
Moreover, in Gandhi, the trial court gave a jury charge
reflecting the correct date. Ibid. The Court held that "[b]ecause
the jury did not request clarification, it either understood the
correct date or did not deem the inaccuracy on the verdict sheet
to affect its determination based on the evidence presented and
the court's jury instruction[,]" and the error did not constitute
reversible error. Ibid.Similarly, here, the errors in the initial verdict sheet were
"obvious" typographical errors. See ibid. During its final jury
instructions, the court explained the verdict sheet in detail, and
provided specific directions concerning the verdict sheet's
requirements for reporting the jury's determination on counts
three and six through twelve, which included lesser-included
offenses. The court used count three as an example, explaining
the verdict sheet required that
[i]f your verdict is not guilty to Count
Three, then you go to question 3(a), which is
immediately below it. If your verdict is
guilty on Count Three, then you go to Count
Four, then Five and then once you pick up on
Six, it follows a – it follows a similar format
all the way through.
If you have any questions though, also, on the
verdict sheet, just send out a note and I'll
be happy to answer it.
20 A-3705-15T4
Informed by the judge's precise instructions, the jury never
questioned the initial verdict sheet and, in our view, the errors
were obvious and not capable of causing any confusion. See ibid.The errors in the initial verdict sheet were also clearly not
capable of producing an unjust result because the court found the
errors and corrected them. The court informed the jury about the
errors, and properly instructed the jury to report its verdict by
using the corrected verdict sheet. The verdict was reported based
on the corrected verdict sheet, and the record confirms there was
no confusion on the jury's part. The jurors each affirmed their
agreement with the verdict announced by the foreperson. Defendant
makes no showing that either the errors in the initial verdict
sheet or the court's correction of the errors was clearly capable
of producing an unjust result. R. 2:10-2.
II.
In counsel's brief and defendant's pro se brief, it is argued
that trial counsel provided ineffective assistance by failing to:
move for a new trial; object to Abromaitis's testimony concerning
the resume; call defendant's treating physician as a witness;
object to the admission of Schiffner's report; object to an
erroneous verdict sheet; allow defendant to testify; inform
defendant of a potential conflict of interest; object to the manner
in which the court responded to a note from the jury concerning
21 A-3705-15T4
the status of its deliberations; and present video footage at
trial showing K.G.'s demeanor was consistent with an individual
who did not take their medication. We choose not to address the
issues, leaving them for defendant to assert if he seeks post-
conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).
Affirmed.
22 A-3705-15T4