STATE OF NEW JERSEY VS. JARRELL SWEET (16-01-0042, HUDSON COUNTY AND STATEWIDE) ( 2019 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE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-4454-16T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JARRELL SWEET,
    Defendant-Appellant.
    ___________________________
    Submitted on September 16, 2019 – Decided October 17, 2019
    Before Judges Sabatino and Sumners.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Indictment No. 16-01-0042.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Robert C. Pierce, Designated Counsel, on the
    brief).
    Esther Suarez, Hudson County Prosecutor, attorney for
    respondent (Erin M. Campbell, Assistant Prosecutor,
    on the brief).
    PER CURIAM
    A jury found defendant Jarrell Sweet guilty of second-degree aggravated
    assault of his ex-girlfriend, second-degree burglary, N.J.S.A. 2C:18-2(a)(1),
    second-degree endangering the welfare of children through abuse, N.J.S.A.
    2C:24-4(a)(2), fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3, and
    third- and fourth-degree weapons charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.
    2C:39-5(d).    He was sentenced to an aggregate fourteen-year prison term,
    subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
    Defendant, appeals contending:
    POINT I
    [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL
    BECAUSE DETECTIVE BOTELLO TESTIFIED
    THAT A STILL PHOTOGRAPH OF THE ALLEGED
    PERPETRATOR AT THE FERRY STATION WAS
    "ABSOLUTELY IN FACT [DEFENDANT]" WHEN
    THE IDENTITY OF THE PERSON WAS A
    QUESTION FOR THE JURY.     (NOT RAISED
    BELOW).
    POINT II
    THE TRIAL COURT COMMITTED PLAIN ERROR
    BY FAILING TO INSTRUCT THE JURY WITH A
    SPECIFIC     IDENTIFICATION      CHARGE
    CONCERNING       THE      IDENTIFICATION
    TESTIMONY FROM G.J. AND DETECTIVE
    BOTELLO    THAT    CAME    FROM    THEIR
    OBSERVATIONS OF A STILL PHOTOGRAPH
    FROM THE FERRY STATION. (NOT RAISED
    BELOW).
    A-4454-16T2
    2
    POINT III
    [DEFENDANT] WAS DEPRIVED OF EFFECTIVE
    ASSISTANCE OF COUNSEL DUE TO COUNSEL'S
    FAILURE TO OBJECT TO DETECTIVE BOTELLO'S
    LAY OPINION IDENTIFICATION TESTIMONY,
    AND HIS FAILURE TO REQUEST A JURY
    INSTRUCTION ON IDENTIFICATION. (NOT
    RAISED BELOW).
    POINT IV
    THE TRIAL COURT ERRED BY ADMITTING INTO
    EVIDENCE THE SURVEILLANCE VIDEO FROM
    . . . 78TH STREET BECAUSE IT WAS NOT
    AUTHENTICATED,      WHICH     DEPRIVED
    [DEFENDANT] OF A FAIR TRIAL.
    POINT V
    THE PROSECUTOR COMMITTED MISCONDUCT
    DURING SUMMATION BY (1) STATING THAT
    THE PERSON IN THE FERRY STATION VIDEO
    WAS [DEFENDANT] WHO "STOPPED FOR A
    MINUTE TO DRINK WATER" BECAUSE HE WAS
    "TIRED AFTER BEATING THE CRAP OUT OF
    G.J[,]" (NOT RAISED BELOW)[,] AND (2) THE
    PROSECUTOR'S COMMENT THAT YOU HEARD
    THE TAXI DRIVER SAY "DUFFEL BAG," WHICH
    VIOLATED A PREVIOUS RULING BY THE TRIAL
    COURT[,] (PARTIALLY RAISED BELOW)[,]
    WHICH DEPRIVED [DEFENDANT] OF A FAIR
    TRIAL. (NOT RAISED BELOW).
    POINT VI
    THE TRIAL COURT COMMITTED PLAIN ERROR
    BY NOT STRIKING THE TESTIMONY AND
    A-4454-16T2
    3
    CHARGING THE JURY WITH A CURATIVE
    INSTRUCTION,    SUA    SPONTE,    AFTER
    DETECTIVE DOWD STATED, "WHY DIDN'T
    YOUR CLIENT CONSENT TO A SEARCH OF HIS
    HOUSE TO AVOID THE POLICE HAVING TO GET
    A SEARCH WARRANT IF HE WAS SO WILLING
    TO COOPERATE?" (NOT RAISED BELOW).
    POINT VII
    THE TRIAL COURT COMMITTED PLAIN ERROR
    BY FAILING TO GIVE THE JURY A CURATIVE
    INSTRUCTION, SUA SPONTE, IMMEDIATELY
    AFTER DETECTIVE RECINOS STATED THAT G.J.
    OBTAINED A RESTRAINING ORDER AGAINST
    [DEFENDANT] AND THAT A JUDGE PROVIDED
    THE POLICE WITH PROBABLE CAUSE TO
    GENERATE ARREST WARRANTS. (NOT RAISED
    BELOW).
    POINT VIII
    THE SENTENCE IMPOSED WAS MANIFESTLY
    EXCESSIVE.
    For the reasons that follow, we affirm in part, reverse in part, and remand
    for retrial.
    I
    Pertinent to the issues before us, the trial revealed the following.
    A-4454-16T2
    4
    Defendant and G.J.'s Relationship
    Defendant and G.J. 1 were co-workers for about six to eight months, who
    became friends. On an evening in September 2013, defendant invited G.J. to his
    house. She accepted the invitation, which resulted in them having consensual
    sex. Thinking she could not become pregnant because of a medical condition,
    their sex was unprotected. Nonetheless, when they had sex again weeks later,
    defendant used protection. At some point, G.J. realized she was pregnant from
    their first liaison, which upset defendant and he wanted her to have an abortion.
    G.J. refused.
    After the child was born on May 4, 2014, defendant paid child support.2
    Beyond this, defendant minimally engaged in a fatherly role, having sporadic
    contact with his son.
    On June 15, 2015, defendant visited G.J. and his son at her North Bergen
    apartment where the three had a pleasant evening. Defendant traveled from his
    New York residence via ferry, supposedly, the only way he knew how to get to
    1
    We use initials to protect the identity of the victim.
    2
    Initially, defendant and G.J. reached a private child support agreement but
    when he failed to make timely payments, G.J. obtained a court-ordered support
    payment.
    A-4454-16T2
    5
    New Jersey to visit G.J.'s apartment. Defendant's entry and departure of the
    apartment was recorded on the building's surveillance camera system. During
    his visit, defendant told G.J. that he did not harbor any negative feelings toward
    her for not having an abortion and "was over it." Before defendant left, G.J.
    called a taxi service to take him to the Port Imperial Ferry Station (the Ferry
    Station) in Weehawken, so he could take the ferry back to New York. Defendant
    was never violent or abusive to her, or their son, that evening or any time prior,
    according to G.J.
    The Attack
    The evening after defendant's visit, June 16, G.J. was walking up the steps
    to her fourth floor apartment with her son and six-year-old niece when she
    noticed a black duffel bag and a pair of beige Timberland boots on the second
    landing fire escape. Undeterred, G.J. entered her apartment. When G.J.'s sister
    arrived to pick up G.J.'s niece, G.J. walked her niece to the second floor and
    watched as she continued down the stairs to meet her mother.
    As G.J. was returning to her apartment, she heard her son crying and
    rushed up the stairs. Upon entering the apartment, she saw a black male, about
    five foot, eight inches tall, dressed in all black, emerge from her bedroom. He
    demanded, "where's the money?" then began attacking her by repeatedly
    A-4454-16T2
    6
    punching and shocking her with a Taser. G.J. fought back and screamed for help
    during the attack, which she recalled lasting approximately five or ten minutes.
    At some point, G.J.'s neighbor, E.A., heard her screams from his
    apartment on the same floor. He ran to G.J.'s apartment and attempted to open
    the door, but someone inside promptly shut it. E.A. then forced the door open,
    stuck his head in, and was immediately punched in the face by the assailant. He
    testified the assailant was a dark skinned male, about five foot, ten inches tall,
    wearing a hooded sweatshirt, gloves, and dark clothing, with a bandana over his
    face. E.A. saw G.J. on the ground screaming, visibly in pain, and "very frantic."
    Once the assailant unveiled a Taser and E.A. heard a "crackling" sound, he
    retreated to his apartment to call the police.
    After the attack was finished, G.J. made her way to the bedroom to check
    on her son. G.J. testified that she could not make out the assailant's features,
    but knew it was defendant based on her "intuition" and his "size and stature."
    Police Investigation
    North Bergen Police Officers Santiago Hernandez and Nelson Roman
    responded to E.A.'s domestic assault call around 9:30 p.m. After E.A. met them
    and explained what he witnessed, they went to G.J.'s apartment where they saw
    that she was severely injured. G.J.'s face was completely swollen, her eyes
    A-4454-16T2
    7
    partially forced shut, and "blood [was] everywhere." They also observed an
    apartment that was in disarray, a Taser on the ground, and an open kitchen
    window.
    G.J and E.A. gave similar descriptions of the assailant. G.J was more
    definitive, stating that despite the assailant's covered face, she was one hundred
    percent sure he was defendant, and showed them a picture of him she had saved
    on her cell phone. She repeated her accusations on later dates and, under cross-
    examination, stated no relative or friend suggested she should identify the
    defendant as her assailant.
    None of the numerous witnesses interviewed were able to identify
    defendant as the assailant, each giving varying accounts of his appearance. One
    witness stated the assailant wore a cap, light gray button down shirt, gray pants,
    and carried a duffel bag. Another witness said he saw a dark-skinned man in a
    hood, and a third witness said he was wearing a "light blue surgical mask." A
    taxi driver, who also testified at trial, stated the individual, who he drove to the
    Ferry Station the night of the incident, was a black male with a "little bag . . .
    Like a suitcase."
    Surveillance video from various businesses, a residence near G.J.'s
    apartment building, and the Ferry Station, also aided the police in identifying a
    A-4454-16T2
    8
    suspect. They depicted an African-American male wearing a long sleeve red t-
    shirt, dark shorts, and boots, holding a duffel bag.
    There was no forensic evidence from the crime scene that suggested
    defendant committed the assault. None of the various DNA samples taken from
    G.J.'s apartment matched defendant. 3       Smudged fingerprints found on the
    kitchen windows could not be used to identify anyone. Detectives also traced
    defendant's cell phone records, which only revealed two calls made from New
    York City: one at 6:33 p.m. and another at 10:33 p.m. There was no indication
    from cell phone records that defendant's cell phone was near G.J.'s apartment.
    The Trial
    During his testimony, North Bergen Police Detective Hector Botello
    stated that a still photograph of the Ferry Station surveillance footage the night
    of the assault, was "a still shot of the suspect." When asked what he learned
    from the video footage, the detective replied that "the person there entering was
    [defendant]."     Later, when asked on cross-examination how he identified
    defendant as the man in the still photograph, he stated, "I know for a fact that's
    [defendant] . . . can I explain why I know? . . . You don't want me to ." Defense
    3
    When defendant was arrested, he consented to a buccal swap to collect his
    DNA.
    A-4454-16T2
    9
    counsel suggested the witness tell the prosecutor on re-direct, and neither
    objected nor requested that the statement be stricken from the record.
    Several days later, the court sustained defendant's objection to Detective
    Robert Maldonado's identification of defendant in a surveillance video from the
    Ferry Station on June 15, the day he visited his son. At sidebar, the court
    instructed the State that Maldonado needed to use a description of the person
    and not identify him as defendant. The court rejected the State's contention that
    Maldonado could identify defendant in the video even though there was no
    dispute that defendant traveled by ferry to G.J.'s apartment.         Maldonado
    subsequently identified the person as the same person matching the description
    of the man who was seen earlier in a video leaving G.J.'s apartment building.
    Despite the court's directive, when Maldonado later discussed the June 16
    Ferry Station video, he stated, "[t]he image we got . . . from the exit – entrance
    to [the Ferry Station] is the defendant sitting here." Defendant objected, which
    the court sustained. The court instructed the jury "whether or not the defendant
    is seen in the video is for you the jury to determine . . . please disregard the
    officer's last response."
    During cross-examination, North Bergen Police Sergeant David Dowd
    was questioned regarding defendant's voluntary consent to various searches and
    A-4454-16T2
    10
    tests, including a DNA test, and the failure to obtain a search warrant for
    defendant's New York City residence. At one point, Sgt. Dowd remarked, "[i]f
    your client – why didn't your client consent to [a] search of his house to avoid
    [us] having to get a search warrant if he was so willing to cooperate?" The court
    stated, "[defense counsel] is not here to answer questions" before cross-
    examination continued.
    Later, during direct examination of the taxi driver, the prosecutor asked
    whether he remembered if the man who took his cab on the night of the incident
    was carrying anything. Through an interpreter, the taxi driver responded, "[h]e
    had a little bag with him. . . . Like a briefcase." Immediately following this
    statement, the prosecutor stated, "I believe I heard the witness say duffel bag a
    couple times. I'm not sure[]"; to which defense counsel objected. Following a
    sidebar hearing, the judge gave a curative instruction that is detailed below.
    Lastly, during summation, the prosecutor stated, "you'll have an
    opportunity if you want, if you choose, to hear the testimony again of [the taxi
    driver]. The State submits to you[,] if you listen to it again, you will hear him
    say duffel bag." Defense counsel did not object to this statement. Prior to this
    statement, the prosecutor also stated:
    Well, you saw the video from the night of June 16[,]
    2015. You saw that video and you saw [Defendant] in
    A-4454-16T2
    11
    the video walking straight into the terminal. He didn't
    stop to buy a ticket, he walked – actually he did stop.
    He stopped for about a minute to drink water. He must
    have been tired. He must have been tired after beating
    the crap out of [G.J.]
    Again, defense counsel did not object.
    Following deliberations, the jury was deadlocked on count three, the
    charge of assault against E.A., but returned a verdict of guilty as to all other
    counts of the indictment. The court granted the State's motion to dismiss count
    three.
    The court later denied defendant's motion for a new trial and sentenced
    him. After merger, defendant was sentenced to an aggregate fourteen-year
    prison term subject to the NERA; based upon a seven-year NERA term for
    second-degree burglary, a ten-year NERA term for second-degree aggravated
    assault, a four-year term for third-degree aggravated assault, and an eighteen-
    month term for fourth-degree unlawful possession of a weapon, all to be served
    concurrent to each other followed by a consecutive four-year term for third-
    degree aggravated assault.
    II
    With the exception of defendant's contentions in Points III, IV, and VIII,
    defendant's remaining merit brief points were not raised before the trial court,
    A-4454-16T2
    12
    thus our plain error standard of review applies. R. 2:10-2.         "Any error or
    omission shall be disregarded by [this court] unless it is of such a nature as to
    have been clearly capable of producing an unjust result . . . ." 
    Ibid. In a jury
    trial, the possibility of such an unjust result must be "sufficient to raise a
    reasonable doubt as to whether the error led the jury to a result it otherwise might
    not have reached." State v. Macon, 
    57 N.J. 325
    , 336 (1971). Defendant carries
    the burden of showing plain error. State v. Morton, 
    155 N.J. 383
    , 421 (1998).
    We conclude plain error applies to defendant's identification arguments in
    Point I, Det. Botello's lay opinion testimony identifying defendant in the still
    photo outside the Ferry Station, and in Point II, the court's failure to give a
    specific identification jury charge, which together warrant a reversal of
    defendant's convictions and a new trial. This, in turn, negates any need to
    address defendant's contention in Point III that counsel was ineffective due to
    his failure to: (1) object to Det. Botello's lay opinion identification testimony;
    and (2) request a jury instruction on identification. In addition, because of our
    reversal, we need not address the excessive sentence claim made in Point VIII.
    Before discussing our reasons for reversal, we first address defendant's
    arguments that we reject: (1) the trial court erred in its admission of a
    surveillance video (Point IV); (2) there was plain error regarding prosecutorial
    A-4454-16T2
    13
    misconduct (Point V); (3) there was plain error regarding the State's witness's
    remark about defendant's failure to consent to a search warrant (Point VI); and
    (4) there was plain error regarding the State's witness's remark on the issuance
    of a restraining order against defendant (Point VII).
    A.
    In Point IV, defendant contends the court committed reversible error
    because it permitted the State to introduce video footage from a surveillance
    system located at a residence near G.J.'s apartment building that was not
    authenticated by the owner and operator of the surveillance system. The video
    displayed a black male wearing a light gray shirt and carrying a duffel bag, who
    according to the State was G.J.'s assailant. Defendant stresses the video was in
    contrast to the surveillance video footage recovered from other nearby
    businesses that depicted a black male wearing shorts and a red shirt. A still
    picture of the suspect was taken from the video.
    Defendant argues five conditions that apply to audio-recordings, State v.
    Driver, 
    38 N.J. 255
    , 287 (1962), also apply to video recordings, and were not
    satisfied by the State to support admission of the surveillance video footage in
    question. These conditions are:
    The speakers should be identified and it should be
    shown that[:] (1) the device was capable of taking the
    A-4454-16T2
    14
    conversation or statement[;] (2) its operator was
    competent[;] (3) the recording is authentic and
    correct[;] (4) no changes, additions or deletions have
    been made[;] and (5) in instances of alleged
    confessions, that the statements were elicited
    voluntarily and without any inducement.
    
    [Driver, 38 N.J. at 287
    (1962).]
    Defendant contends these conditions were not fulfilled by the testimony of
    North Bergen Police Det. Jason Apello because he failed to testify that before
    placing the video onto a flash drive, he personally reviewed the video "in real
    time," and that the time and date were accurate.
    It is well-settled that a videotape "qualifies as a writing[ ]" under N.J.R.E.
    801(e) and must be "properly authenticated" before being admitted. See State
    v. Wilson, 
    135 N.J. 4
    , 17 (1994). Under N.J.R.E. 901, "[t]he requirement of
    authentication or identification as a condition precedent to admissibility is
    satisfied by evidence sufficient to support a finding that the matter is what its
    proponent claims." The authentication rule "does not require absolute certainty
    or conclusive proof." State v. Mays, 
    321 N.J. Super. 619
    , 628 (App. Div. 1999).
    "The proponent of the evidence is only required to make a prima facie showing
    of authenticity." 
    Ibid. (citations omitted). "Once
    a prima facie showing is made,
    the [item] is admissible, and the ultimate question of authenticity of the evidence
    is left to the jury." 
    Ibid. (citations omitted). A-4454-16T2
                                             15
    Authentication of a videotape is similar to the authentication of a
    photograph.    State v. Loftin, 
    287 N.J. Super. 76
    , 98 (App. Div. 1996).
    "[T]estimony must establish that the videotape is an accurate reproduction of
    that which it purports to represent and the reproduction is of the scene at the
    time the incident took place."    Ibid. (citing 
    Wilson, 135 N.J. at 15
    ). The
    photographer or videographer need not testify "because the ultimate object of an
    authentication is to establish its accuracy or correctness." 
    Wilson, 135 N.J. at 14
    . Thus, "any person with the requisite knowledge of the facts represented in
    the photograph or videotape may authenticate it." 
    Ibid. After reviewing the
    record, we conclude the court's decision to admit the
    video was not an abuse of discretion. See State v. Brown, 
    170 N.J. 138
    , 147
    (2001). Det. Apello provided the authenticity of the surveillance video footage
    without the necessity of the testimony of the camera system's owner.          He
    testified that a week after G.J was attacked, he observed a surveillance camera
    on the outside of a home near G.J.'s apartment building. He further explained
    that he and other officers watched the video, which covered the date around the
    time of G.J.'s attack, and saw a male with a duffel bag walking east. He
    determined the video footage's date and time was accurate by checking the
    video's time stamp against the time on his watch or cellphone, because
    A-4454-16T2
    16
    "occasionally, [the surveillance equipment is] not linked up with the internet so
    the times may be off, the dates could be off." He further verified the video
    depicted the area near G.J.'s residence. Accordingly, there was no unjust result
    by the court's admission into evidence of the video and the still photograph
    captured therefrom.
    B.
    In Point V, defendant contends the prosecutor committed misconduct in
    making two remarks during summation. Before specifying the remarks, we first
    mention the principles that govern our review.
    To warrant a new trial for prosecutorial misconduct, the conduct must
    have been "'clearly and unmistakably improper,' and must have substantially
    prejudiced defendant's fundamental right to have a jury fairly evaluate the merits
    of his defense." State v. Smith, 
    167 N.J. 158
    , 181-82 (2001) (quoting State v.
    Timmendequas, 
    161 N.J. 515
    , 575 (1999)).            While a prosecutor "in its
    summation may suggest legitimate inferences to be drawn from the record," a
    prosecutor "commits misconduct when [the summation] goes beyond the facts
    before the jury." State v. Harris, 
    156 N.J. 122
    , 194 (1998). In determining
    whether a prosecutor's actions were sufficiently egregious, we consider: (1)
    whether defense counsel made a timely and proper objection; (2) whether the
    A-4454-16T2
    17
    remarks were promptly withdrawn; and (3) whether the judge struck the remarks
    from the record and issued a curative instruction. State v. Frost, 
    158 N.J. 76
    , 83
    (1999). In our review, "we consider the tenor of the trial and the responsiveness
    of counsel and the court to the improprieties when they occurred."
    
    Timmendequas, 161 N.J. at 575
    . If no objection was made, the prosecutor's
    conduct generally will not be deemed prejudicial, as the failure to object
    indicates counsel did not consider the conduct improper and deprives the trial
    judge of the opportunity to take curative action. State v. Echols, 
    199 N.J. 344
    ,
    360 (2009).
    1. The First Remark
    The prosecutor urged the jury that defendant was the individual in the
    Ferry Station surveillance video and "stopped for about a minute to drink water
    . . . . he must have been tired after beating the crap out of [G.J.]" Defendant
    stresses the sole question for the jury was the identification of the man in the
    Ferry Station surveillance video, and any comments made inferring defendant
    was the individual – other than those by G.J. – constitute reversible plain error.
    Defendant points out that Det. Botello impermissibly identified defendant as the
    man in the video, which was repeated by Detective Maldonado, and the court
    attempted to remedy the issue with a curative instruction. He argues that despite
    A-4454-16T2
    18
    this curative instruction, the prosecutor made an unsupported comment
    implicating defendant as the man in the video, and therefore, reversal is
    necessary.
    We conclude the prosecutor's comment that it was defendant in the video
    does not constitute prosecutorial misconduct. Even though identification was
    the sole question for the jury, the prosecutor's argument during summation was
    essentially attempting to persuade the jury that defendant was the man in the
    video. The comment that it was defendant in the video does not constitute
    prosecutorial misconduct because it was supported in the record by G.J.'s
    admitted testimony.     As for Det. Botello's identification testimony, it is
    discussed below as impermissible lay opinion testimony in Section III. With
    respect to the "drinking water/beating G.J." comment, the prosecutor drew an
    inference, albeit a stretch, based upon the evidence. And, given the lack of an
    objection, no unjust result occurred.
    The record reveals this trial was fought zealously by both parties, and our
    courts "have recognized that criminal trials provoke strong feelings and that
    'rhetorical excesses . . . invariably attend litigation.'" State v. Smith, 
    212 N.J. 365
    , 409 (2012) (quoting State v. Williams, 
    113 N.J. 393
    , 456 (1988)). And it
    is well-settled that "such excesses . . . do not always justify reversing a jury's
    A-4454-16T2
    19
    verdict." 
    Ibid. (citing Frost, 158
    N.J. at 88). The prosecutor's remarks did not
    compromise the jury's ability as fact-finders. Moreover, the court instructed the
    jury that they are the sole judges of the evidence, summations are not evidence,
    and we presume the jurors followed the court's instructions.            State v.
    Montgomery, 
    427 N.J. Super. 403
    , 410 (App. Div. 2012).
    2. The Second Remark
    The prosecutor's alleged second inappropriate comment pertained to the
    bag carried by the male who was taken by taxi to the Ferry Station the night of
    the incident. The taxi driver, through an interpreter, stated the man had a
    "briefcase," not a duffel bag. The prosecutor declared, "I believe I heard [the
    taxi driver] say duffel bag a couple times, I'm not sure[,]" defense counsel
    objected and moved for a mistrial claiming there was a material
    misrepresentation of the taxi driver's testimony. The court denied the request,
    but agreed with defense counsel to give a curative instruction.
    The jury was told the statement was stricken from the record and
    cautioned them:
    Since we are using an interpreter, you are bound by
    what the interpreter says the witness sa[id], [alright]?
    ....
    A-4454-16T2
    20
    So, let's say somebody in the jury does understand the
    Arabic language and you think the witness said
    something because you understand it . . . you have to
    disregard it because the record and what you can
    consider is only as interpreted by the interpreter.
    Now, we had an added issue here, where . . . the
    [prosecutor] said that [the taxi driver] said duffel bag.
    She is not a witness in this case. You are to completely
    disregard that comment. It is not proper for an attorney
    to tell you what the evidence is. The only thing an
    attorney can do is present the evidence to you by way
    of witnesses.
    So, with respect to this witness, whatever your
    recollection was as to the answers to what he was
    carrying, as stated by the interpreter, is the only thing
    you may consider as evidence in this case.
    During summation, this issue was raised again when the prosecutor
    remarked, "[t]he State submits to you if you listen to it again, you will hear him
    say duffel bag." There was no objection by defense counsel. Although the
    prosecutor essentially suggested to the jury that the interpreter was wrong,
    defendant now argues that the State misrepresented the taxi driver's testimony
    about the type of bag the man carried.
    In support of reversal, defendant cites State v. Ross, 
    249 N.J. Super. 246
    (App. Div. 1991), where we reversed a defendant's conviction because a
    prosecutor argued during summation that a ten-year-old sex abuse victim could
    not fabricate the details of her account of the incident, despite the prosecutor
    A-4454-16T2
    21
    being aware of the victim's prior history of 
    abuse. 249 N.J. Super. at 250-52
    .
    We held that "[f]or the prosecutor to have made that argument knowing it to be
    at least arguably contrary to the facts which defendant was precluded from
    adducing was improper, unfair, and, in view of the paramountcy of credibility
    issue, irremediably prejudicial." 
    Id. at 250.
    Although the prosecutor's summation remark was improper because it was
    a misstatement of the taxi driver's testimony as translated by the interpreter, we
    cannot conclude that it was capable of causing an unjust result.           We are
    unpersuaded that Ross demands a reversal of defendant's conviction. There was
    a basis for the prosecutor's assertion that the suspect was carrying a duffel bag
    because of the testimony by other witnesses and the surveillance videos that
    depicted what the suspect carried. Moreover, since the court gave a curative
    instruction to the jury, and also instructed them that summations are not
    evidence and they are the sole finders-of-fact, the comment was not "so
    egregious that it deprived the defendant of a fair trial," and thus, reversal is not
    warranted. 
    Frost, 158 N.J. at 83
    ; see State v. Ramseur, 
    106 N.J. 123
    , 322 (1987).
    There is no indication that the jury did not follow the court's instructions. See
    
    Montgomery, 427 N.J. Super. at 410
    .
    A-4454-16T2
    22
    C.
    In Point VI,    defendant argues Sgt. Dowd's comment during cross-
    examination, "[w]hy didn't your client consent to a search of his house to avoid
    the police having to get a search warrant if he was so willing to cooperate[,]"
    deprived him of a fair trial because it shifted the burden of proof onto him. In
    particular, he asserts the statement compromised his presumption of innocence,
    effectively requiring him to present evidence tending to rebut Sgt. Dowd's
    assertions. Had his counsel objected to the statement, the court would have
    given a curative instruction to the jury to remedy such an egregious error. We
    are unpersuaded.
    The comment by Sgt. Dowd was inappropriate because it suggested that,
    had defendant consented to a search of his residence, the police would not have
    had to obtain a search warrant. Defendant had no obligation to consent to a
    search of his residence. Yet, the comment, which was not objected to, did not
    shift the burden to defendant to prove his innocence. The prosecutor did not
    make the comment, which would imply the State's trial strategy. The comment
    was made by a witness in response to defense counsel's cross-examination that
    informed the jury that defendant voluntarily consented to: (1) being interviewed
    A-4454-16T2
    23
    by police; (2) providing a DNA and fingerprint sample; (3) turning over his
    cellphone; and (4) cooperating with DYFS workers.
    This is not like State v. Jones, 
    364 N.J. Super. 376
    (App. Div. 2003),
    which is cited by defendant to support reversal of his conviction. There, we
    reversed the defendant's conviction because the prosecutor, in response to the
    defendant's argument that a fingerprint analysis was never completed on the
    firearm allegedly used to commit the crime, summed-up stating, "[a]nd while
    the defense never has a burden of proof, when they put on a case[,] stop and ask
    yourself why isn't it they dusted the gun for prints to disprove that his
    fingerprints were on there? Maybe the defendant knows something we don't,
    that it is his gun." 
    Jones, 364 N.J. Super. at 382
    . Defendant did not object to
    the comments, but we determined they were "so clearly erroneous and so capable
    of affecting the jury's deliberations that we are constrained to reverse [the]
    defendant's conviction." 
    Ibid. We cannot agree
    with defendant that this fleeting comment made by a
    witness during a heated cross-examination was reversible error and created an
    unjust result that denied defendant a fair trial.
    A-4454-16T2
    24
    D.
    In Point VII, defendant contends plain error occurred when New Bergen
    Police Officer Carmen Recinos "testified that, based upon G.J.'s statement, she
    obtained a restraining order, coupled with her remark that a judge provided the
    police with probable cause to arrest [defendant] . . . ." Defendant further
    maintains the court failed to issue a curative instruction considering "the
    testimony is much more egregious because Officer Recinos stated that a family
    court judge found G.J.'s testimony credible and granted her a restraining order."
    Defendant reasons that plain error occurred because with Officer Recinos's
    "restraining order and arrest warrant testimony, the jury could infer that
    [defendant] committed the offenses and was a present danger to hurt or even kill
    G.J. and her young son."
    While on direct examination, Officer Recinos was discussing a statement
    he obtained from G.J. during an interview after defendant had given a statement
    at the police station, when the following colloquy ensued:
    Q: Based on the statement that you got from [G.J.],
    what did you do?
    A [(Recinos)]: She had requested a restraining order.
    So we called one of our judges on the scene being that
    she couldn't walk that much still. He granted her the
    restraining order.
    A-4454-16T2
    25
    Q: And what did you do after that?
    A [(Recinos)]: After that we headed back to
    headquarters and we advised the [j]udge . . . of her
    statement and what she said, and he provided us with
    probable cause to generate warrants to arrest
    [defendant].
    We find no merit to defendant's contention that Officer Recinos's
    testimony had the ability to influence the jury to find defendant guilty of
    attacking G.J. and the related offenses because a restraining order and arrest
    warrant were issued. Officer Recinos's brief testimony was merely an outline
    of the process that led to defendant's arrest. See State v. Marshall, 
    148 N.J. 89
    ,
    240 (1997), (holding there was no authority in support of a rule that "the jury
    should be shielded from knowledge that search warrants have been issued in a
    criminal matter because the prior judicial determination of probable cause may
    influence the jury to assume guilt."). The prosecutor did not harp on this process
    in her summation or, for that matter, have any other witness echo this testimony.
    No unjust result occurred in defendant's trial due to Officer Recinos's comments.
    III.
    Because defendant's respective arguments in Points I and II, concerning
    Det. Botello's lay opinion testimony identifying defendant in a still photo, and
    A-4454-16T2
    26
    the trial court's failure to give a specific identification jury charge , are
    interrelated, we address them together.
    A.
    Stressing that Det. Botello never actually met defendant and was only
    familiar with him in connection with the investigation and reviewing
    surveillance video footage, defendant argues the State improperly bolstered
    G.J.'s testimony that defendant was her masked assailant based upon her
    "intuition", by introducing the inadmissible lay opinion of Det. Botello that
    defendant was the individual in the still photograph from the Ferry Station
    surveillance video footage. G.J. testified that the man in the photograph, which
    she had never seen before, was defendant.4 Defendant maintains that because
    Det. Botello was not sufficiently familiar with him, he impermissibly
    encroached on the jury's responsibility of identifying defendant in the
    photograph.
    Defendant further argues the court committed reversible error because it
    failed to instruct the jury on identification, which was pertinent to the
    identifications made by G.J. and Det. Botello, thereby, denying defendant of his
    4
    According to G.J.'s grand jury testimony, the photograph was shown to her at
    her sister's house four days after the assault, and she identified the man as
    defendant. The jury was not made aware of this identification.
    A-4454-16T2
    27
    right to a fair trial. He submits the court had the duty "to instruct the jury as to
    fundamental principles of law which control the case," and that dut y was not
    extinguished by the failure to request a specific identification charge.
    We are guided by the following principles. Lay opinion testimony is
    permitted when it is "rationally based on the perception of the witness" and "will
    assist in understanding the witness' testimony or in determining a fact in issue."
    N.J.R.E. 701. Lay opinion testimony "is not a vehicle for offering the view of
    the witness about a series of facts that the jury can evaluate for itself or an
    opportunity to express a view on guilt or innocence." State v. McLean, 
    205 N.J. 438
    , 462 (2011). "[T]estimony in the form of an opinion, whether offered by a
    lay or an expert witness, is only permitted if it will assist the jury in performing
    its function." 
    McLean, 205 N.J. at 462
    . "The [r]ule does not permit a witness
    to offer a lay opinion on a matter . . . as to which the jury is as competent as he
    to form a conclusion[.]"     
    Id. at 459
    (internal quotation marks and citation
    omitted). Furthermore, a police witness is not permitted to offer an opinion
    regarding a defendant's guilt. State v. Frisby, 
    174 N.J. 583
    , 593-94 (2002)
    (disapproving police testimony that opined regarding innocence of one person
    and inferentially the guilt of the defendant); State v. Landeros, 
    20 N.J. 69
    , 74-
    A-4454-16T2
    28
    75 (1955) (holding that a police captain's testimony that defendant was "as guilty
    as Mrs. Murphy's pet pig" caused "enormous" prejudice warranting reversal).
    These principles apply to opinions regarding an offender's identity. "In
    an identification case, it is for the jury to decide whether an eyewitness credibly
    identified the defendant." State v. Lazo, 
    209 N.J. 9
    , 24 (2012).
    In Lazo, the issue was whether it was proper for a detective with no
    personal knowledge of the crime to testify at trial that he included the
    defendant's photo in a photo array because the defendant's photo resembled the
    composite sketch of the assailant. 
    Id. at 12.
    The issue in Lazo had been fully
    raised and argued at trial and, thus, was not raised as plain error as it is here.
    Our Supreme Court noted that "[t]he victim's identification was the only
    evidence linking defendant to the crime.        No physical evidence or other
    corroboration of the identification was presented." 
    Id. at 15.
    The jury in Lazo
    convicted the defendant of second-degree robbery and second-degree conspiracy
    to commit robbery. 
    Id. at 16.
    The Court held that the detective's testimony violated N.J.R.E. 701
    because his opinion was not based on personal knowledge, and the testimony
    only served to bolster the victim's identification, which was the sole basis of the
    defendant's conviction. 
    Id. at 24.
    The detective did not witness the crime, did
    A-4454-16T2
    29
    not know the defendant, and relied solely on the victim's description. 
    Ibid. "Nor was there
    a change in appearance that the officer could help clarify for the jurors;
    they could have compared the photo and the sketch on their own. Finally, the
    sole eyewitness told the jury what he observed firsthand." 
    Ibid. The Court reversed,
    holding that a police officer may not "improperly
    bolster or vouch for an eyewitness' credibility and thus invade the jury's
    province." 
    Ibid. Because the identification
    was the only evidence against the
    defendant, the Court could not "conclude that the error was harmless." 
    Id. at 27.
    The Lazo Court reviewed federal authority on whether a lay police witness
    may opine that a defendant is depicted in a crime scene photograph. The Court
    noted that one federal court held lay opinion "permissible where the witness has
    had sufficient contact with the defendant to achieve a level of familiarity that
    renders the lay opinion helpful." 
    Id. at 22
    (internal quotation marks and citation
    omitted). Whether the opinion is helpful in turn depends on the witness's
    knowledge of the defendant's appearance at the time of the crime, the defendant's
    dress, and "whether the defendant disguised his appearance during th e offense
    or altered her looks before trial, and whether the witness knew the defendant
    over time and in a variety of circumstances." 
    Ibid. (internal quotation marks
    and citation omitted). "[C]ourts recognize that when there is no change in
    A-4454-16T2
    30
    defendant's     appearance,   juries   can   decide   for   themselves—without
    identification testimony from law enforcement—whether the person in a
    photograph is the defendant sitting before them." 
    Id. at 23.
    The Court cited a decision finding it error to admit an officer's opinio n
    that a defendant was depicted in a bank surveillance photo where the officer's
    opinion "was based entirely on his review of photographs . . . and witnesses'
    descriptions . . . ."   
    Ibid. (internal quotation marks
    and citation omitted).
    Another factor in determining whether to permit a lay opinion on identification
    is "whether there are additional witnesses available to identify the defendant at
    trial." 
    Ibid. The Court cited
    favorably to the Law Division's 1981 decision in Carbone.
    In Carbone, the defendant was charged with five armed bank robberies, and the
    State secured statements from individuals who knew the defendant and who
    identified him from photographs taken by the banks' surveillance 
    cameras. 180 N.J. Super. at 96-97
    . Citing cases from other jurisdictions, the Law Division,
    considered a number of factors in reaching its determination that the proposed
    identifications were admissible, including: (1) the fact that the defendant's
    appearance had changed since the time of the offense charged; (2) the lack of
    eyewitnesses to the offenses charged; (3) the extent of the potential witnesses'
    A-4454-16T2
    31
    familiarity with the defendant, particularly at the time of the offenses charged;
    and (4) the basis of the witnesses' knowledge of the defendant. 
    Id. at 97-100.
    Although New Jersey law is sparse on the subject of the admissibility of
    lay opinion testimony identifying a defendant from surveillance video or
    surveillance photographs, there is abundant case law from other jurisdictions on
    the subject. Those cases generally hold that such testimony may be admissible
    after considering a variety of factors, including a number of the factors set forth
    under New Jersey case law in Lazo and Carbone.5
    5
    See, e.g., United States v. White, 
    639 F.3d 331
    , 335-36 (7th Cir. 2011); United
    States v. Contreras, 
    536 F.3d 1167
    , 1170-73 (10th Cir. 2008); United States v.
    Beck, 
    418 F.3d 1008
    , 1013-15 (9th Cir. 2005); Nooner v. State, 
    907 S.W.2d 677
    ,
    684-86 (Ark. 1995); People v. Leon, 
    352 P.3d 289
    , 312-13 (Cal. 2015);
    Robinson v. People, 
    927 P.2d 381
    , 382-85 (Colo. 1996) (en banc); Young v.
    United States, 
    111 A.3d 13
    , 15-16 (D.C. 2015); Glenn v. State, 
    806 S.E.2d 564
    ,
    568-69 (Ga. 2017); State v. Barnes, 
    212 P.3d 1017
    , 1020-26 (Idaho Ct. App.
    2009); People v. Thompson, 
    49 N.E.3d 393
    , 402-09 (Ill. 2016); Gibson v. State,
    
    709 N.E.2d 11
    , 15-16 (Ind. Ct. App. 1999); Morgan v. Commonwealth, 
    421 S.W.3d 388
    , 391-92 (Ky. 2014); State v. Berniard, 
    163 So. 3d 71
    , 89-91 (La. Ct.
    App. 2015); State v. Robinson, 
    118 A.3d 242
    , 247-52 (Me. 2015); Moreland v.
    State, 
    53 A.3d 449
    , 453-56 (Md. Ct. Spec. App. 2012); Commonwealth v.
    Vacher, 
    14 N.E.3d 264
    , 278-79 (Mass. 2014); Lenoir v. State, 
    222 So. 3d 273
    ,
    276-78 (Miss. 2017) (en banc); State v. Gardner, 
    955 S.W.2d 819
    , 823-25 (Mo.
    Ct. App. 1997); Rossana v. State, 
    934 P.2d 1045
    , 1048-49 (Nev. 1997); State v.
    Sweat, 
    404 P.3d 20
    , 22, 24-27 (N.M. Ct. App. 2017); People v. Sanchez, 
    941 N.Y.S.2d 599
    , 606 (App. Div. 2012), aff'd, 
    991 N.E.2d 698
    (N.Y. 2013); State
    v. Patterson, 
    791 S.E.2d 517
    , 520-23 (N.C. Ct. App. 2016), review denied, 
    794 S.E.2d 328
    (N.C. 2016); State v. Fripp, 
    721 S.E.2d 465
    , 467-69 (S.C. Ct. App.
    2012); Woods v. State, 
    13 S.W.3d 100
    , 101-05 (Tex. Crim. App. 2000); State v.
    A-4454-16T2
    32
    A few courts from other states have concluded that lay opinion testimony is
    more likely to be admissible when the surveillance video is of passable quality,
    but is grainy or shows only a partial view of the person of interest. See, e.g.,
    
    Nooner, 907 S.W.2d at 685
    ; 
    Glenn, 806 S.E.2d at 569
    ; 
    Barnes, 212 P.3d at 1025
    ;
    
    Thompson, 49 N.E.3d at 404
    . In such cases, the lay witnesses' opinions become
    more valuable to the jury, based upon their superior knowledge of the
    defendant's appearance, particularly around the time of the crime.
    B.
    Defendant also argues as plain error that reversal should be granted
    because the trial court failed to give any instruction on identification.           In
    particular, he cites Model Jury Charge (Criminal), "Identification: In-Court and
    Out-of-Court Identifications" (Revised June 5, 2006), or Model Jury Charge
    (Criminal), "Identification: No In-Court and Out-of-Court Identifications Out-
    of-Court Identification Only" (Approved October 26, 2015).
    It is undisputed that "[a]ppropriate and proper charges to a jury are
    essential for a fair trial." State v. Green, 
    86 N.J. 281
    , 287 (1981). The trial court
    must guarantee that jurors receive accurate instructions on the law as it pertains
    George, 
    206 P.3d 697
    , 700-02 (Wash. Ct. App. 2009), review denied, 
    217 P.3d 783
    (Wash. 2009). But see State v. Finan, 
    881 A.2d 187
    , 191-94 (Conn. 2005);
    Ibar v. State, 
    938 So. 2d 451
    , 462 (Fla. 2006).
    A-4454-16T2
    33
    to the facts and issues of each case. State v. Smith, 
    210 N.J. Super. 43
    , 54 (App.
    Div. 1986).    A trial court is vested with discretion in delivering the jury
    instructions that are most applicable to the criminal matter before it." State v.
    Funderburg, 
    225 N.J. 66
    , 80 (2016) (citing State v. Ernst, 
    32 N.J. 567
    , 583-84
    (1960)). "An erroneous jury charge when the subject matter is fundamental and
    essential or is substantially material is almost always considered prejudicial."
    State v. Maloney, 
    216 N.J. 91
    , 104-05 (2013) (internal quotation marks and
    citation omitted).   We apply a presumption that improper instructions are
    reversible error in criminal cases. 
    Id. at 105.
    However, that presumption is
    overcome if the error is "'harmless beyond a reasonable doubt.'" 
    Ibid. (quoting State v.
    Collier, 
    90 N.J. 117
    , 123 (1982)).
    "Plain error in the context of a jury charge . . . [must be] sufficiently
    grievous . . . to convince the court that of itself the error possessed a clear
    capacity to bring about an unjust result." State v. Hyman, 
    451 N.J. Super. 429
    ,
    455 (App. Div. 2017) (alterations in original) (quoting State v. Torres, 
    183 N.J. 554
    , 564 (2005)). "Under the plain error standard, [the] 'defendant has the
    burden of proving that the error was clear and obvious and that it affected his
    [or her] substantial rights.'" State v. Koskovich, 
    168 N.J. 448
    , 529 (2001)
    (quoting State v. Morton, 
    155 N.J. 383
    , 421 (1998)). The plain error analysis of
    A-4454-16T2
    34
    an erroneous jury charge mandates that the reviewing court examine the charge
    as a whole to determine its overall effect. State v. McKinney, 
    223 N.J. 475
    , 494
    (2015).
    There is presently no New Jersey model jury charge on evaluating lay
    witness opinion testimony in this particular context. The model charges on
    identification evidence specifically address only identifications made by
    eyewitnesses to the crime; they do not address identifications made based upon
    surveillance video of a crime. Model Jury Charge (Criminal), "Identification:
    In-Court Identification Only" (rev. July 19, 2012, eff. Sept. 4, 2012); Model Jury
    Charge (Criminal), "Identification: Out-of-Court Identification Only" (rev. July
    19, 2012, eff. Sept. 4, 2012); Model Jury Charge (Criminal), "Identification: In-
    Court and Out-of-Court Identifications" (rev. July 19 2012, eff. Sept. 4, 2012).
    There is, however, a federal jury charge on lay witness opinion. See Modern
    Federal Jury Instructions – Criminal, 2.10, "Opinion Evidence (Lay Witnesses)
    (F.R.E. 701)" (2018). 6
    6
    Witnesses are not generally permitted to state their personal opinions abou t
    important questions in a trial. However, a witness may be allowed to testify to
    his or her opinion if it is rationally based on the witness's perception and is
    helpful to a clear understanding of the witness's testimony or to the
    determination of a fact in issue.
    A-4454-16T2
    35
    C.
    Applying these principles leads us to conclude that the combination of
    Det. Botello's testimony identifying defendant as the man in the still photograph
    at the Ferry Station on the night of the assault, and the absence of any
    identification jury instructions, were clearly capable of creating an unjust result
    requiring a new trial.
    In this case, defendant's guilt turned on identification. There was no
    physical evidence linking defendant to G.J.'s attack, such as DNA or
    fingerprints. Defendant's cell phone records did not indicate he was near the
    vicinity of G.J.'s apartment the night of the attack. Although witnesses gave
    physical descriptions of the assailant, only G.J testified that defendant was her
    assailant. Despite the fact that his face was covered, it was her "intuition," based
    upon knowing him from their work and personal relationship, which led her to
    conclude he was her attacker.
    In this case, I am permitting (name) to offer (his)(her) opinion based on
    (his)(her) perceptions. The opinion of this witness should receive whatever
    weight you think appropriate, given all the other evidence in the case and the
    other factors I will discuss in my final instructions for weighing and considering
    whether to believe the testimony of witnesses.
    Modern Federal Jury Instructions-Criminal 2.10 (2019)
    A-4454-16T2
    36
    There are no facts in the record to indicate that Det. Botello had any
    familiarity with defendant prior to or during his investigation into G.J. 's attack
    enabling him to identify defendant from a still photograph of the video. 7 The
    detective neither witnessed the crime nor knew defendant prior to the incident;
    apparently relying solely on the descriptions provided by G.J. and other
    witnesses regarding defendant's clothing and physical build. He seemingly had
    no more insight into the suspect's identity then members of the jury.
    Our concern regarding Det. Botello's testimony is highlighted by the fact
    that when Det. Maldonado subsequently identified defendant in the same Ferry
    Station video, the court struck it from the record based on defendant's timely
    objection. The court's instruction that it is the jury's role to decide whether the
    defendant is in the video (as well the still photograph taken therefrom) equally
    applies to Det. Botello's testimony. Clearly, the court was troubled about the
    impact of this lay opinion testimony.
    Consequently, it appears that Det. Botello's identification testimony
    served only to bolster G.J.'s testimony and was, therefore, inadmissible. This,
    however, is not the end of our analysis of his testimony's impact.
    7
    Since neither provided a dvd of the surveillance video nor a copy – not a
    photocopy – of the still photograph, we have no way of evaluating defendant's
    claim that it was a grainy and unclear image of the suspect.
    A-4454-16T2
    37
    The inadmissibility of Det. Botello's testimony is compounded by the jury
    not receiving any instructions on how it should evaluate identification
    testimony. Despite our state's absence of any model jury charge on evaluating
    lay witness opinion testimony, it is incumbent upon the trial court to fashion
    charges that address the law and facts of a particular case. The court should
    have developed charges by examining our model jury charges, and possibly
    considered adapting related jury charges from other jurisdictions that were in
    place at time of trial. In doing so, the jury would have been given guidance on
    how to evaluate Det. Botello's identification testimony of defendant in the still
    photograph.
    Considering both the allowance of Det. Botello's identification testimony
    and the lack of jury instructions on how to assess his testimony, we do not find
    these errors harmless. Identification of G.J's assailant was the only trial issue
    and given the limited evidence against defendant, the combination of these two
    errors were capable of producing an unjust result. Accordingly, we reverse his
    convictions and remand for retrial.
    Affirmed in part, reversed in part and remanded for retrial.
    A-4454-16T2
    38