STATE OF NEW JERSEY VS. VINCENT G. SMITH (13-12-3157, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3030-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT G. SMITH, a/k/a
VINCENT WARNER and
VINCENT GLASCO,
Defendant-Appellant.
____________________________
Submitted January 8, 2018 – Decided July 12, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
13-12-3157.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Vincent Smith appeals his convictions and sentence
following a jury trial for aggravated assault and burglary. Based
on our review of the record and defendant's arguments under the
applicable legal principles, we affirm defendant's convictions,
vacate the court's order imposing consecutive sentences and
denying defendant an award of jail credits, and remand for
reconsideration of the imposition of consecutive sentences and the
denial of jail credits.
I.
Defendant was charged in an indictment with second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-degree
terroristic threats, N.J.S.A. 2C:12-3(a), second-degree burglary,
N.J.S.A. 2C:18-2(a)(1), fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The court
dismissed count two prior to trial.
Co-defendant Shahid Salaam was charged in the indictment with
third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count
three), and third-degree burglary, N.J.S.A. 2C:18-2 (count five).
Salaam pleaded guilty to two criminal charges, a violation of
probation on two burglary charges, and a motor vehicle offense.
As part of his plea agreement, he agreed to "cooperate in any
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future proceedings against" defendant in exchange for the State's
recommendation that he receive a time-served sentence.
The evidence at defendant's trial showed that on June 14,
2013, Salaam and defendant went to the former United Hospital, a
building in disrepair that was no longer in use. They went to the
building to steal copper and brass pipes from its interior because
of the metal's resale value.
Salaam had previously entered and stolen scrap metal from the
building. He testified that he entered the building through holes
he made in windows, and other points of entry and egress in the
building, so he could "get out from various positions." He
explained the holes had boards placed over them so it appeared
there were boarded windows when "it really ain't boarded. You
just pull the board up."
The building was protected by a twenty-four hour security
force, cameras and no trespassing signs. The security force
included armed uniformed guards who had a marked security vehicle.
The security force's protocol required that the guards attempt to
apprehend anyone found inside the building.
Salaam was aware the building was guarded by a security force,
and considered its presence when planning the timing of his
attempts to take metal from the building. He would arrange for a
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driver and a vehicle to be readily available when he exited the
premises.
According to Salaam, one week prior to June 14, 2013, he and
defendant entered the building together to steal metal for resale.
Salaam used his tools to extract a few hundred dollars worth of
metals, and left the metals in bags he and defendant intended to
retrieve at a later time. However, Salaam fell asleep in the
building, and when he awoke defendant and the bags containing the
stolen metal were gone. Salaam believed defendant took the bags
and his tools.
By June 14, 2013, Salaam located defendant, who explained the
bags had been placed in another location within the building.
Defendant agreed to go back to the building with Salaam to retrieve
the bags. According to Salaam, he and defendant agreed to go to
the building, where he would retrieve the bags with the stolen
metals and hand them to defendant as he stood outside of the
building. Their plan was that defendant would place the bags in
the driver's vehicle, which would then transport defendant and
Salaam from the scene. Salaam testified defendant and the driver
were going to receive "their rightful share" of the proceeds from
the sale of the stolen metals.
In accordance with the plan, on June 14, 2013, Salaam entered
the building alone through a boarded hole while defendant remained
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outside. Security guard Todd Thompson patrolled the grounds and
noticed a truck circling the property. Aware of past break-ins
at the building, Thompson positioned himself in front of the
building to investigate. At the same time, Kassim Riddick, the
head of security from an adjoining property, called Thompson and
told him to respond immediately because there were two men inside
of the building.
Riddick and Carl Pemberton, an information technology
technician for the adjoining property's security cameras, saw
defendant outside of the building, and ran after him. Salaam,
while still in the building, noticed people pursuing defendant,
and told defendant to come inside of the building. Salaam opened
a double-door and defendant ran inside.
Once defendant entered the building, Salaam heard someone
attempting to pick the lock from the outside and open the door.
Salaam told defendant: "[D]on't let none of them grab you. If
they try to grab you, you better pick up something and hit one of
them upside the head with it."
When Thompson arrived at the building, defendant and Salaam
were inside and Riddick and Pemberton were yelling at them through
the double-door. Thompson called for backup, and entered the
building from another entrance to pursue defendant and Salaam.
5 A-3030-15T1
When Thompson entered the building, he could be seen by
defendant and Salaam. They each took bags containing the stolen
metals and ran down a hallway away from Thompson. According to
Salaam, he ran ahead of defendant because defendant "was[ not] in
that good [] of shape." When Salaam arrived at an exit, he waited
for defendant to reach him.
Thompson confronted defendant before defendant reached the
exit. Thompson had his gun drawn. Defendant "took a swing at
Thompson and it looked like [defendant] swung and swung himself
around[.]" Thompson fired his gun and shot defendant in the leg.
When Salaam saw the gun flash, he left the bags, "[j]umped
through the makeshift window[,]" and fled the scene, leaving
defendant with Thompson, Pemberton, and Riddick. Thompson
handcuffed defendant, and called the police and an ambulance.
Defendant did not testify at trial. He presented one witness,
Dr. Zhongxue Hua, an expert in forensic pathology. Dr. Hua
testified concerning his examination of defendant's gunshot wounds
and review of defendant's medical records. He opined that "the
gunshot entrance wound was in the back of the thigh," and the exit
wound was "in the front of the leg." The testimony supported
defendant's argument that he was shot from behind as he fled from
Thompson, and was not shot from the front in response to his
alleged assault on Thompson.
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The jury found defendant guilty of a lesser-included offense
under count one of third-degree aggravated assault by attempting
to cause significant bodily injury to Thompson, and second-degree
burglary as charged in count four. Defendant was found not guilty
of the weapons offenses.
The court imposed a four-year year sentence on defendant's
conviction for aggravated assault and a concurrent eight-year
sentence subject to the requirements of the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, on defendant's second-degree burglary
conviction. The court directed that the sentences be served
consecutive to a five-year custodial term defendant was serving
on an unrelated burglary charge. The court awarded 346 days of
gap time credit, but did not award any jail credits. See N.J.S.A.
2C:44-5(b)(2).
Defendant appealed, and offers the following arguments for
our consideration.
POINT I
BECAUSE THE CIRCUMSTANCES OF DEFENDANT'S ENTRY
INTO THE HOSPITAL BUILDING WERE AMBIGUOUS, THE
COURT ERRED IN FAILING TO TAILOR THE BURGLARY
CHARGE TO THE CRITICAL ISSUE OF WHETHER THE
DEFENDANT ENTERED WITH THE INTENT TO EVADE A
POSSIBLE ASSAULT BY HIS PURSUERS OR WITH THE
INTENT TO COMMIT AN OFFENSE. THE FLAWS IN THE
CHARGE WERE COMPOUNDED BY THE ACCOMPLICE
CHARGE, WHICH OMITTED LANGUAGE STATING THAT
THE DEFENDANT'S INTENT MAY HAVE DIFFERED FROM
THAT OF HIS CO-DEFENDANT.
7 A-3030-15T1
A. The Burglary Charge Was Insufficient, As
It Failed to Adequately Focus the Jurors'
Attention on [Defendant's] Intent at the Time
of His Entry Into the Hospital Building And
to Instruct Jurors That There Were Potential
Non-Criminal Explanations For His Entry.
B. The Accomplice Charge Was Inadequate,
Because It Omitted the Language Contained in
the Model Charge That Explained How
[Defendant's] Intent May Have Differed From
That of His Co-defendant in a Case Where the
Prosecutor Incorrectly Told Jurors in
Summation That the Co[-]defendant had the Same
Intent.
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE
REPEATEDLY AND UNFAIRLY DISPARAGED THE DEFENSE
FORENSIC EXPERT AND BOLSTERED THE CREDIBILITY
OF THE STATE'S WITNESSES IN A CASE WHERE THE
CREDIBILITY OF THE WITNESSES WAS ESSENTIAL TO
THE ISSUES OF AGGRAVATED ASSAULT AND SECOND-
DEGREE BURGLARY.
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE COURT FAILED TO PROVIDE ANY
REASONS FOR RUNNING THE SENTENCE CONSECUTIVE
TO THE ONE [DEFENDANT] WAS ALREADY SERVING,
AND THE COURT FAILED TO AWARD PROPER JAIL
CREDIT.
II.
Defendant contends he was deprived of a fair trial and due
process because the court erred in its jury instructions on
burglary and accomplice liability. He first claims the court
failed to instruct the jury with particularity concerning
8 A-3030-15T1
defendant's intent at the time he entered the building, and should
have instructed the jury to consider evidence showing a possible
non-criminal purpose for his entry into the building – to protect
himself from physical harm from Pemberton and Riddick's pursuit.
He also claims the court erred by failing to include in the charge
on accomplice liability an instruction that defendant's intent may
have differed from Salaam's.
"[A]ppropriate and proper charges [to a jury] are essential
for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016)
(first alteration in original) (quoting State v. Reddish, 181 N.J.
553, 613 (2004)). A trial court has an "independent duty . . .
to ensure that the jurors receive accurate instructions on the law
as it pertains to the facts and issues of each case, irrespective
of the particular language suggested by either party." Id. at 159
(alteration in original) (quoting Reddish, 181 N.J. at 613).
"Because proper jury instructions are essential to a fair trial,
'erroneous instructions on material points are presumed to'
possess the capacity to unfairly prejudice the defendant." Ibid.
(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).
We consider each of the alleged errors under the plain error
standard, R. 2:10-2, because defendant did not object at trial to
the jury charges. Under the plain error standard, defendant must
demonstrate the alleged errors were "clearly capable of producing
9 A-3030-15T1
an unjust result." R. 2:10-2. In the context of a jury charge,
plain error is a "[l]egal impropriety in the charge prejudicially
affecting the substantial rights of the defendant and sufficiently
grievous to justify notice by the reviewing court and to convince
the court that of itself the error possessed a clear capacity to
bring about an unjust result." State v. Camacho, 218 N.J. 533,
554 (2014) (alteration in original) (quoting State v. Adams, 194
N.J. 186, 207 (2008)). We consider the jury instructions "as a
whole" to determine if an error constitutes plain error. State
v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183
N.J. 554, 564 (2005)). Where, as here, there was no objection to
the charges, "there is a presumption that [a] charge was not [in]
error and was unlikely to prejudice the defendant's case." State
v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57
N.J. 325, 333-34 (1971)).
A.
We first consider defendant's claim the court erred by failing
to sua sponte advise the jury during the burglary instruction that
defendant was entitled to an acquittal if it determined defendant
entered the building to protect himself from Pemberton or Riddick
or to visit a then-operating business within the building.
Defendant contends the evidence supported such a charge, and the
court erred by failing to tailor the jury instruction based on the
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evidence as required under State v. Robinson, 289 N.J. Super. 447,
449-50 (App. Div. 1996). We are not persuaded.
In Robinson, we considered the defendant's challenge to a
jury instruction on the offense of burglary that did not "define
the specific offense defendant intended to commit after he entered
the building." Id. at 455. We held that under the circumstances
presented, it was not plain error for the court to fail to identify
the specific offense it was alleged defendant intended to commit
because "the jury was not confronted by conflicting explanations
as to defendant's purpose in entering the building," and the
"unequivocal nature of [the defendant's] conduct . . . suggest[ed]
only a criminal purpose." Ibid. We held that
where the circumstances surrounding the
unlawful entry do not give rise to any
ambiguity or uncertainty as to a defendant's
purpose in entering a structure without
privilege to do so, so long as those
circumstances lead inevitably and reasonably
to the conclusion that some unlawful act is
intended to be committed inside the structure,
then specific instructions delineating the
precise unlawful acts intended are
unnecessary.
Id. at 458 (alteration in original).
In contrast, in State v. Marquez, 277 N.J. Super. 162, 169
(App. Div. 1994), we reversed the defendant's burglary conviction
because the circumstances surrounding the defendant's entry into
an apartment were ambiguous and, based on the evidence and the
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jury charge, it was not possible to determine if the jury convicted
the defendant of entering the apartment to commit an offense
therein as required under N.J.S.A. 2C:18-2, or for a purpose
insufficient to support a burglary conviction.
Here, the court instructed the jury on the charge of burglary
in accordance with the model jury instruction, see Model Jury
Charge (Criminal), "Burglary in the Second Degree (N.J.S.A.
2C:18(b))" (rev. March 14, 2016), and also instructed the jury
that defendant was charged with burglary as Salaam's accomplice.
The court explained that the State alleged defendant was guilty
of the burglary committed by Salaam and must find defendant guilty
of the offense if the State proved beyond a reasonable doubt that
Salaam committed the offense of burglary, and defendant aided
Salaam in the planning or commission of the burglary while
possessing the same criminal state of mind that is required to
prove the offense against Salaam.
The court was not required to modify the burglary instruction
to specify that defendant may have had a lawful purpose for
entering the building because it was Salaam's entry into the
building, and defendant's actions as an accomplice, that supported
defendant's burglary conviction. The evidence showed Salaam had
only one purpose in entering the building on June 14, 2013: he
testified he entered the building to complete the theft of the
12 A-3030-15T1
pipes he and defendant harvested, but did not remove, one week
earlier. The evidence further showed defendant went to the
building with Salaam pursuant to their plan to retrieve the stolen
pipes from the building's interior, with defendant waiting outside
to receive the stolen metal from Salaam and supervise the getaway
driver.
The court was not obligated to instruct the jury about
alternative purposes for entry into the building because unlike
in Marquez, 277 N.J. Super. at 169, the evidence here did not
suggest any ambiguity in Salaam's purpose for which defendant was
legally responsible because he planned and assisted Salaam in the
unlawful entry and theft as an accomplice. The evidence showed
Salaam and defendant shared a singular purpose – Salaam's
unauthorized entry into the building to commit a theft of the
stowed bags of metal. The evidence did not give rise to any
ambiguity of purpose and, therefore, it was unnecessary for the
court to inform the jury to consider other purported lawful
purposes for defendant's entry into the building. See Robinson,
289 N.J. Super. at 458.
Defendant also contends the court erred by omitting language
from the model jury charge on accomplice liability that explained
a defendant's "responsibility as an accomplice may be equal and
the same as [the person] who actually committed the crime[] or
13 A-3030-15T1
there may be responsibility in a different degree depending on the
circumstances as you may find them to be." Defendant further
argues the court erred by failing to instruct the jury that if he
was found not guilty of acting as Salaam's accomplice on the
burglary charge, it could find him guilty as an accomplice on a
lesser included offense if he acted as an accomplice with a purpose
to commit the lesser included offense. See Model Jury Charge
(Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)"
(rev. May 22, 1995).
Defendant's arguments are without merit sufficient to warrant
a discussion in a written opinion, R. 2:11-3(e)(2), other than to
note that the record is bereft of any evidence showing defendant
acted with a purpose other than to assist Salaam in the unlawful
entry into the building to complete the theft of the metal they
unlawfully undertook one week before. See State v. Wilder, 193
N.J. 398, 413-18 (2008) (the trial court has no obligation to
provide instructions for which there is no support in the
evidence).
III.
Defendant next argues the prosecutor engaged in prosecutorial
misconduct that deprived him of his right to a fair trial. More
particularly, he asserts the prosecutor made inappropriate
comments and personal attacks during his cross-examination of Dr.
14 A-3030-15T1
Hua and, during his summation, "repeatedly and ruthlessly
attacked" Dr. Hua, demeaned the defense, offered improper opinions
concerning witness credibility, and made arguments that were not
supported by the evidence.
"A prosecutor must 'conscientiously and ethically undertak[e]
the difficult task of maintaining the precarious balance between
promoting justice and achieving a conviction,' ensuring that at
all times his or her 'remarks and actions [are] consistent with
his or her duty to ensure that justice is achieved.'" State v.
Jackson, 211 N.J. 394, 408 (2012) (alterations in original)
(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). "Whether
particular prosecutorial efforts can be tolerated as vigorous
advocacy or must be condemned as misconduct is often a difficult
determination to make. In every instance, the performance must
be evaluated in the context of the entire trial, the issues
presented, and the general approaches employed." State v. Negron,
355 N.J. Super. 556, 576 (App. Div. 2002).
In reviewing a claim of prosecutorial misconduct, we
consider: "whether 'timely and proper objections' were raised;
whether the offending remarks 'were withdrawn promptly'; . . .
whether the trial court struck the remarks and provided appropriate
instructions to the jury . . . [and] whether the offending remarks
were prompted by comments in the summation of defense counsel."
15 A-3030-15T1
State v. Smith, 212 N.J. 365, 403-04 (2012) (internal citations
omitted). Moreover, "[g]enerally, if no objection was made to the
improper remarks, the remarks will not be deemed prejudicial."
State v. R.B., 183 N.J. 308, 333 (2005) (citation omitted).
"Failure to make a timely objection indicates that defense counsel
did not believe the remarks were prejudicial at the time they were
made," and "deprives the court of the opportunity to take curative
action." State v. Timmendequas, 161 N.J. 515, 576 (1999)
(citations omitted).
In addition, even if the prosecutor exceeds the bounds of
proper conduct, "[a] finding of prosecutorial misconduct does not
end a reviewing court's inquiry because, in order to justify
reversal, the misconduct must have been 'so egregious that it
deprived the defendant of a fair trial.'" State v. Smith, 167
N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83
(1999)). "To justify reversal, the prosecutor's conduct must have
been clearly and unmistakably improper, and must have
substantially prejudiced [the] defendant's fundamental right to
have a jury fairly evaluate the merits of his [or her] defense."
State v. Nelson, 173 N.J. 417, 460 (2002) (alterations in original)
(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
Our review of the record shows that the prosecutor conducted
an intense and relentless cross-examination of Dr. Hua, and
16 A-3030-15T1
challenged Dr. Hua's consideration of the evidence related to
defendant's injuries, his ability to make the observations upon
which his opinion was based, the thoroughness of his review of the
relevant medical records and the comprehensiveness of his report.
Although the prosecutor asked what might be properly characterized
as boorish and snide comments about Dr. Hua's vision based on his
testimony that he needed glasses to drive an automobile, the
questions directly challenged Dr. Hua's credibility. Dr. Hua
testified his opinion was based in part on his visual examination
of defendant's wound sites, and thus his ability to accurately
observe the sites was an appropriate subject of cross-examination.
Similarly, the prosecutor questioned the credibility and
comprehensiveness of Dr. Hua's report by pointing out, in a clearly
sarcastic manner, that the doctor may not have reviewed all of the
pertinent medical records and that his curriculum vitae was longer
than his report concerning defendant's injuries.
Prosecutors "may 'strike hard blows . . . [but not] foul
ones.'" State v. Echols, 199 N.J. 344, 359 (2009) (alteration in
original) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007)).
Although the tone of some of the cross-examination questions posed
by the prosecutor was harsh and shrouded with sarcasm, we are not
convinced the questions were "clearly and unmistakably improper."
Nelson, 173 N.J. at 460. To the contrary, they directly pertained
17 A-3030-15T1
to legitimate subjects for cross-examination – Dr. Hua's
credibility and the thoroughness of his analysis and medical
report. Moreover, defense counsel did not perceive the questions
to be prejudicial — he did not interpose an objection at the time,
see Timmendequas, 161 N.J. at 576, and defendant makes no showing
that the questions, even if improper, substantially prejudiced his
right to have a jury fairly evaluate the merits of his defense,
see Nelson, 173 N.J. at 460.
Defendant also argues that the prosecutor committed
prosecutorial misconduct by making improper attacks upon Dr. Hua
during his summation. "Prosecutors are afforded considerable
leeway in closing arguments as long as their comments are
reasonably related to the scope of the evidence presented." State
v. Cordero, 438 N.J. Super. 472, 489-90 (App. Div. 2014) (quoting
Frost, 158 N.J. at 82). "[I]n the prosecutor's effort to see that
justice is done, the prosecutor 'should not make inaccurate legal
or factual assertions during a trial.'" State v. Bradshaw, 195
N.J. 493, 510 (2008) (quoting Frost, 158 N.J. at 85). "Rather, a
prosecutor should 'confine [his or her] comments to evidence
revealed during the trial and reasonable inferences to be drawn
from that evidence.'" Ibid. (alteration in original) (quoting
Smith, 167 N.J. at 178).
18 A-3030-15T1
"Summation commentary, however, must be based in truth, and
counsel may not 'misstate the evidence nor distort the factual
picture.'" Adelson, 187 N.J. at 431 (citation omitted).
Prosecutors are afforded significant freedom as long as the
commentary is reasonably related to the evidence before the jury.
State v. Harris, 141 N.J. 525, 559 (1995). In fact, in a criminal
case, a prosecutor is entitled and expected to make his closing
arguments vigorously and forcefully. Frost, 158 N.J. at 82;
Harris, 141 N.J. at 559.
Here, during his summation the prosecutor commented twice on
Dr. Hua's examination of defendant's gunshot wound as
insufficient, sarcastically stating that Dr. Hua underwent "an
extra five, six year[s] of education so that he can look at an
external wound on an eye test[,]" and observing that Dr. Hua
conducted a visual examination of defendant's wounds but the
jurors' "eyes are just as good as his. By the way your eyes are
better than his. He doesn't – he can't even drive on the road,
but that's what he's relying on." The prosecutor twice remarked
on the length of Dr. Hua's report stating: "I was not going to let
him skate through with a report less than 500 pages[,]" and that
Dr. Hua "submit[ted] a report of one and a half pages, half the
length of his CV."
19 A-3030-15T1
While we may not admire the tone of the prosecutor's
summation, we find nothing improper in these comments. Each is
founded on the evidence presented and supports a permissible
argument concerning Dr. Hua's credibility.
The prosecutor, however, crossed the line in certain other
statements concerning Dr. Hua during summation. He offered an
opinion that Dr. Hua "made a mockery of [the jury's] time,"
"completely disrespected the entire [judicial] system," and did
not "seem to have a moral conscience." A prosecutor cannot
properly express a personal belief regarding a witness's
truthfulness, State v. Staples, 263 N.J. Super. 602, 605 (App.
Div. 1993), but that is precisely what the prosecutor did here,
see State v. Marshall, 123 N.J. 1, 156 (1991) (finding it proper
for a prosecutor to argue that a witness's testimony is credible,
but improper to offer an opinion on the witness's credibility);
see also State v. Moore, 122 N.J. 420, 461-62 (1991) (holding it
was improper for the prosecutor to refer to defense expert as
"professional bleeding heart who was indeed duped by the
defendant"); Marquez, 277 N.J. Super. at 172 (finding it improper
for the prosecutor to comment, without any basis, that the
defendant's attorney had scripted the expert witnesses'
testimony).
20 A-3030-15T1
We are not, however, convinced the prosecutor's improper
comments deprived defendant of his right to have the jury fairly
evaluate the evidence and his defense. Nelson, 173 N.J. at 460.
Again, there was no objection to the prosecutor's statements and
we therefore deem the statements not to be prejudicial. R.B., 183
N.J. at 333. The court also properly instructed the jury that it
was the sole judge of witness credibility, and that counsel's
arguments or comments are not evidence. Accordingly, "[w]e assume
the jury followed the court's instructions." See State v. Little,
296 N.J. Super. 573, 580 (App. Div. 1997). Moreover, when the
prosecutor's brief comments are considered in the context of the
evidence presented and the prosecutor's otherwise proper
summation, they were not so egregious as to have deprived defendant
of a fair trial. Smith, 167 N.J. at 181.
Defendant also points to other comments made by the prosecutor
during his summation, and claims they were not based on the
evidence presented at trial, improperly bolstered witnesses'
credibility, demeaned the defense and misstated the applicable
law. We have carefully considered these contentions and they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add only that there was no objection
to any of the challenged statements, our review of the prosecutor's
summation reveals that the challenged statements did not
21 A-3030-15T1
constitute improper argument, and even if the statements were
improper, they did not substantially prejudice defendant's right
to have a jury fairly evaluate the merits of his defense. See
Nelson, 173 N.J. at 460.
IV.
Defendant also makes two arguments related to his sentencing.
He contends the court erred by failing to provide reasons for the
imposition of consecutive sentences. He further asserts the court
erred by failing to award jail credits for time he spent in custody
following his arrest and prior to his sentencing. The State agrees
with defendant's contentions and to a remand for resentencing to
correct the court's errors.
Imposition of consecutive sentences requires the sentencing
court's consideration of various factors detailed by the Court in
State v. Yarbough, 100 N.J. 627, 643-44 (1985). It is well-
established that a court imposing a consecutive sentence must
expressly state the reasons for the sentence or risk remand for
resentencing. State v. Marinez, 370 N.J. Super. 49, 59-60 (App.
Div. 2004); see also State v. Miller, 108 N.J. 112, 122 (1987)
(remanding because the court did not separately state the reasons
for imposing consecutive sentences).
Here, the court's imposition of consecutive sentences is
untethered to any analysis of the Yarbough factors or any findings
22 A-3030-15T1
supporting the court's decision. We are therefore constrained to
vacate the court's imposition of the consecutive sentences and
remand for the court to reconsider whether consecutive sentences
are appropriate, and to make the required findings under Yarbough.
Marinez, 370 N.J. Super. at 59-60.
We also remand for reconsideration of the award of jail
credits. Defendant was not awarded any jail credits by the court,
but the State agrees the court erred by failing to award jail
credits for the period defendant was in custody following his
arrest and prior to his sentencing date. See generally State v.
Hernandez, 208 N.J. 24 (2011). We do not have a sufficient record
before us to determine defendant's entitlement to jail credits,
and remand for the sentencing court to make that determination.
Defendant's convictions are affirmed. We vacate the court's
imposition of consecutive sentences and remand for further
proceedings in accordance with this opinion. We do not retain
jurisdiction.
23 A-3030-15T1