STATE OF NEW JERSEY VS. ANDREW HOWARD-FRENCH (18-10-0872, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2456-19
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 5, 2021
v.
APPELLATE DIVISION
ANDREW HOWARD-FRENCH,
Defendant-Appellant.
____________________________
Submitted March 10, 2021 – Decided August 5, 2021
Before Judges Sumners, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Criminal Division, Hudson County, Indictment No.
18-10-0872.
Miller, Meyerson & Corbo, attorneys for appellant
(Gerald D. Miller, on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Erin M. Campbell, Assistant
Prosecutor, on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D.
Tried by a jury, defendant Andrew Howard-French was found guilty of
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and third-degree
endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The offenses arose from
the death of a twenty-three-month-old child who was under defendant's care.
Defendant was sentenced to an aggregate prison term of life subject to an
eighty-five percent parole ineligibility followed by a consecutive five-year
prison term.
Defendant argues:
POINT I
IT WAS ERROR TO HAVE PERMITTED
EVIDENCE CONCERNING WRONGFUL ACTS
WHICH [DEFENDANT] WAS NOT CHARGED IN
THE INDICTMENT.
A. There Was No Clear and Convincing
Evidence That [Defendant] Had Committed A
Wrongful Act on July 11, 2018.
B. Evidence Relating to Injuries On July 16,
2018 Should Not Have Been Admit[t]ed Into
Evidence Because It Had Not Been Part of the
Rule 404[1] Hearing. (Not Raised Below).
C. The Doctor's Speculative Testimony
Concerning July 16, 2018 Injuries Should
1
N.J.R.E. 404(b).
2 A-2456-19
[Have] Been Stricken Because It Was Not Based
on Reasonable Med[i]cal Certainty. (Not
Raised Below).
D. Dr. Sultana's Testimony About July 16,
2018 Did Not Meet the Clear and Convincing
Test. (Not Raised Below).
POINT II
WHEN EVIDENCE OF THE JULY 11, 2018
CONDUCT AND WHEN EVIDENCE BY DOCTOR
SULTANA CONCERNING ABUSE ON JULY 16,
2018 WAS PRESENTED[,] LIMITING
INSTRUCTIONS SHOULD HAVE BEEN GIVEN.
(Not Raised Below).
POINT III
IT WAS ERROR FOR THE JUDGE IN HIS
CHARGE TO THE JURY TO FAIL TO GIVE ANY
LIMITING INSTRUCTION CONCERNING DR.
SULTANA'S TESTIMONY OF EARLIER CHILD
ABUSE INJURIES. (Not Raised Below).
POINT IV
THE TESTIMONY THAT THE MANNER OF
DEATH WAS HOMICIDE SHOULD HAVE BEEN
STRICKEN AND THE JURY TOLD TO
DISREGARD IT. (Not Raised Below).
POINT V
THE RECORDED STATEMENT OF THE
DEFENDANT SHOULD HAVE BEEN SANITIZED
TO ELIMINATE IMPROPER COMMENTS BY THE
3 A-2456-19
INTERROGATING POLICE OFFICER. (Not Raised
Below).
POINT VI
THE COURT ERRONEOUSLY ADVISED THE
JURY THAT THE DEFENDANT HAD FLED THE
SCENE. (Not Raised Below).
POINT VII
THE COURT ERRONEOUSLY INSTRUCTED THE
JURY ON THE CRIME OF ENDANGERING AN
INJURED PERSON. (Not Raised Below).
POINT VIII
THE COURT FAILED TO CHARGE THE
AFFIRMATIVE DEFENSE OF SUMMONING
MEDICAL TREATMENT. (Not Raised Below).
POINT IX
THE COURT SHOULD HAVE GRANTED THE
MOTION TO DISMISS THE CHARGE OF
ENDANGERING AN INJURED PERSON.
POINT X
[DEFENDANT] WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL. (Not Raised Below).
We conclude there is no merit to any of defendant's arguments and affirm.
4 A-2456-19
I.
In July 2018, Monique Sparrow, mother of twenty-three-month-old
Bryce and a seven-year-old daughter, worked weekdays from 2:00 p.m. to
10:30 p.m. While Sparrow worked, either her brother, or defendant and his
girlfriend, Monique Dugan, would care for the children.
On July 11, 2018, defendant was caring for Bryce when he claimed that
Bryce fell down the stairs of Dugan's apartment building while running after
his mother. Later that day, defendant sent Sparrow a text message regarding
the alleged fall, stating: "I know you're mad[,] but it wasn't my intention, of
course, it just happened, too bad." At trial, the State refuted defendant's claim
by showing a surveillance video from the apartment building's lobby depicting
defendant and Bryce walking into the building, followed by defendant taking
Bryce out of the stroller and carrying him up the stairs without Bryce falling at
any point. The video was admitted into evidence by the motion judge, who did
not preside over the trial, in response to the State's pretrial N.J.R.E. 404(b)
motion.
Five days later, on July 16, when Sparrow dropped Bryce off at daycare
at approximately 8:30 a.m., the daycare teacher described Bryce as happy and
affectionate, and she did not notice any bruising or injuries on him when
5 A-2456-19
changing his diaper. In the afternoon, Dugan picked up Bryce from daycare
and claimed that he was not acting normal; he was hot, and he had a cut on his
ear. Between 11:40 p.m. and 11:50 p.m., Sparrow picked up Bryce from
defendant and Dugan's apartment. When she got home, Sparrow noticed Bryce
had a swollen and bruised white lip, and bruises on the back of his left ear and
head, so she took him to the emergency room at the Jersey City Medical
Center (JCMC).
In the early morning of July 17, Bryce was treated at JCMC by Dr.
Noushin Sultana. According to Sparrow, the doctor believed the bruising was
"self-inflict[ed]," caused by "kids [being] clumsy" and "probably . . .
bump[ing] into something." Dr. Sultana testified she also noticed "several
scratch marks" on Bryce's stomach but could not recall if she examined
Bryce's leg and back. She stated that if she had seen injuries on Bryce's body
suggestive of abuse, she would have reported it to the state authorities. Based
on Dr. Sultana's assessment, Sparrow had no concern with defendant
continuing to care for Bryce and left him with defendant that afternoon before
she went to work.
Later that afternoon, defendant took Bryce to a local playground. He
testified that while walking back to his apartment building, he noticed that
6 A-2456-19
Bryce hurt his leg and was having difficulty walking, which he attributed to
Bryce refusing to go down a slide, and instead jumping off the slide. With
Bryce both walking on his own and being carried by defendant, they returned
to the apartment at approximately 1:17 p.m. Defendant stated he gave Bryce
some water, put a cool rag on his head, and noticed that his breathing was
abnormal. Defendant then telephoned Dugan and gave Bryce cardiopulmonary
resuscitation (CPR); Bryce threw up water and a moving organism. Defendant
also called Sparrow, but she did not answer her phone.
Surveillance video revealed that at 1:40 p.m., defendant left the
apartment building alone, and returned at 2:24 p.m. He left again, alone, at
2:32 p.m. He paced in front of the apartment building while talking on his cell
phone, and returned inside at 2:34 p.m. At 2:41 p.m., he exited for a third
time, this time with another person––another child in his care 2––and returned
inside a minute later. At 2:47 p.m., defendant was in the building lobby when
Dugan arrived.
Dugan testified she could not remember if Bryce was breathing when she
first arrived, so she slapped his back to see if he would respond. She stated
2
The child was D.M., who was unrelated to anyone involved in this matter.
7 A-2456-19
she then put Bryce into the bathtub with cool water and got into the tub with
him. He was breathing heavily, and his eyes rolled back.
It was not until 2:52 p.m. that defendant called 9-1-1 seeking aid for
Bryce. First responders Allan Pereira, a JCMC Basic Life Support certified
emergency medical technician (EMT), and his partner, Luis Rivera Ordaz, an
EMT, responded to the call. Defendant met them on the street and led them to
the apartment where Dugan was performing CPR on Bryce. According to
Pereira, Bryce was non-responsive to any stimuli, was not breathing, and had
no pulse. Pereira and Ordaz proceeded to ventilate him and administered CPR
for approximately half an hour. After that was unsuccessful, they then used a
defibrillator on Bryce but were unable to restore his heartbeat.
David Pernell, an advanced cardiac life support certified paramedic from
the JCMC, also arrived at the scene with his partner at 2:54 p.m. Pernell
noticed multiple bruises on Bryce and a broken, snapped in half femur. Bryce
was taken to JCMC, where he was later pronounced dead.
Two Jersey City Police Officers arrived at the scene at approximately
4:00 p.m. Twenty minutes later, Jersey City Police Juvenile Division
Detective Miguel Rivera arrived at the scene and asked defendant what
happened. Defendant told Rivera he was babysitting Bryce, and when they
8 A-2456-19
went to a park, Bryce fell off the slide but did not hit his head. He also said he
called 9-1-1 because Bryce was not responding to him.
The investigation was turned over to the Hudson County Prosecutor's
Office (HCPO). Defendant was taken to the HCPO to be interviewed. After
being read his Miranda 3 rights, he agreed to speak with Detective Brenton
Porter and his partner Detective Trillion. 4 Defendant repeated his account of
what he previously told Rivera. Defendant stated he did not notice any bruises
on Bryce. He also stated he never disciplined Bryce.
Multiple times during the recorded interview, Porter implied that he did
not believe defendant's account of what happened. Porter stated:
Well, what we're saying is like with that amount of
bruising, in my opinion, I think it's almost – you said
when you changed his diaper and you said you didn't
see any bruising, I don't – it's almost impossible not to
see that amount of bruising.
....
So at that point, what we're saying is you didn't notice
all this bruising. I mean it's pretty heavy bruising
even if you're trying not to be a creep because like, no,
I get it you're not like . . . . you know, fucking with
little kids, I understand that, I'm just saying that, you
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Detective Trillion's first name is not mentioned in the record.
9 A-2456-19
know, I gotcha. But you're going to notice . . . that's
what I'm kind of getting at.
....
[W]hen I stop and think about it and we step out of the
room and we sit there and you kind of think about it
for a second and we retell it [to] our bosses or
whatever, it doesn’t seem to be adding up.
....
[T]hat's another thing I'm saying like, oh, what – that's
part of what's not adding up, is like how can you
change the kid's diaper and [not] see it, like you're –
you change the child's diaper, you're going to see
those bruises. That's all. That's all I'm getting at is
there's a lot of bruises that are there.
After defendant completed his statement, the detectives took him home. Eight
days later, defendant was arrested and charged with Bryce's death.
At trial, the State presented forensic pathology expert testimony by
Jacqueline Benjamin, M.D., a forensic pathologist and neuropathologist at the
Bergen Region Medical Examiner's Office, who performed an autopsy on
Bryce before defendant's arrest. Dr. Benjamin testified that she found signs of
medical intervention on the body and detailed the many contusions and
abrasions she observed. She further described a fracture on the right femur
and stated that it takes a bit more force to fracture the bones of a child; she
also noted that a child with a fractured femur would typically be unable to
10 A-2456-19
walk. She also dissected the abdominal cavity and found bleeding in the rectus
muscle, the lining of the abdomen, and the abdominal cavity itself. There was
also a laceration in the fatty tissue that is attached to the transverse colon that
is typically caused by force or a blow.
Dr. Benjamin opined the cause of death was homicide caused by
multiple blunt force injuries. She determined the death was not natural,
indeterminate, a suicide, or an accident. She opined that if someone suffered
a subarachnoid cerebral hemorrhage at 12:30 p.m., the person could still
possibly be conscious and walking at 1:15 p.m. She acknowledged that some
of the injuries could have been caused by an inexperienced person performing
CPR, but she did not believe that the injuries were from a simple fall. Dr.
Benjamin also stated it was possible that the injuries causing Bryce's
subarachnoid cerebral hemorrhage were incurred an hour and a half prior to
1:15 p.m. on the day of his death.
At the close of the State’s case, defendant unsuccessfully moved for a
judgment of acquittal on the charges of both murder and endangering an
injured victim. As for the latter charge, the judge found that, based upon the
State's evidence, the jury could reasonably find that he left the scene while
Bryce needed care.
11 A-2456-19
The jury found defendant guilty of murder, endangering the welfare of a
minor, and endangering an injured victim. Defendant was later sentenced to
life imprisonment subject to an eighty-five percent parole ineligibility for
murder, concurrent to ten years for endangering the welfare of a minor,
followed by a consecutive five-year prison term for endangering an injured
victim.
II.
We first address defendant's arguments related to the trial judge's
admission of: his prior bad acts; the opinion testimony of Dr. Sultana; the non-
sanitized statement by Porter accusing defendant of lying; and Dr. Benjamin's
testimony regarding Bryce's cause of death. Before analyzing each argument,
we start with the well-established principle that a trial judge's evidential
rulings are entitled to a strong degree of deference and are reviewed under an
abuse of discretion standard. See State v. Prall, 231 N.J. 567, 580 (2018).
Such rulings are therefore upheld unless "there has been a clear error of
judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown,
170 N.J. 138, 147 (2001)). "An appellate court applying this standard 'should
not substitute its own judgment for that of the trial court, unless the trial
12 A-2456-19
[judge's] ruling is so wide of the mark that a manifest denial of justice
resulted.'" Ibid. (quoting Brown, 170 N.J. at 147) (internal quotation omitted).
Furthermore, where a defendant––as in this case––did not object before
the trial judge to the admission of evidence, it must be shown that there was
"plain error clearly capable of producing an unjust result." State v. Bunch, 180
N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)); R.
2:10-2. A reversal based on plain error requires us to find that the error likely
led to an unjust result that is "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. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J.
325, 336 (1971)).
A. Prior Bad Acts
In Point I, defendant argues the motion judge improperly admitted the
July 11, 2018 surveillance video showing defendant and Bryce walking into
Dugan's apartment building and him taking Bryce out of the stroller and
carrying him up the stairs. The State showed the video to establish defendant
was lying when he claimed that Bryce fell down the stairs chasing after his
mother. Defendant contends the State failed to satisfy the third prong of the
13 A-2456-19
Cofield 5 test requiring proof that the video showed clear and convincing
evidence of prior bad acts. He contends he did not admit to harming Bryce on
July 11, and no expert testified that Bryce had pre-existing injuries prior to his
death that were the result of abuse. Defendant asserts that because there was
no testimony about what caused the injuries on July 11, a jury should not have
been allowed to infer that he lied about what occurred that date. He also
asserts that the jury should not have been allowed to infer that if he lied about
the July 11 incident, he also lied about what occurred when Bryce died on July
17. We are unpersuaded.
N.J.R.E. 404(b)(2) provides that evidence of other crimes or bad acts is
generally not admissible, unless used for "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." The apprehension in
admitting evidence of other crimes is that "the jury may convict the defendant
because he [or she] is a bad person in general." Cofield, 127 N.J. at 336
(internal quotation marks and citation omitted). The evidence is not required
to prove or disprove a fact at issue but need only support a desired inference.
State v. Swint, 328 N.J. Super. 236, 252-53 (App. Div. 2000).
5
State v. Cofield, 127 N.J. 328 (1992).
14 A-2456-19
In Cofield, our Supreme Court set forth a four-pronged test to govern the
admission of such evidence:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[127 N.J. at 338 (quoting Abraham P. Ordover,
Balancing the Presumptions of Guilt and Innocence:
Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135,
160 (1989) (footnote omitted)); see also State v.
Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the
Cofield test).]
In granting the State's motion to admit evidence of prior bad acts, the
judge correctly pointed out that there was "clear and convincing evidence that
Bryce['s] . . . fatal injuries were sustained while he was under the care of []
defendant" and that he "suffered some injuries prior to [his death on] July 17,
although it cannot be said . . . that those prior injuries were consistent with . . .
[battered child syndrome] and the State does not appear to make such an
argument." Finding the surveillance video provided clear and convincing
evidence that defendant lied to Sparrow about the bruising on Bryce's face and
15 A-2456-19
stomach being caused by a fall on July 11, the judge properly found it
admissible under Cofield.
Contrary to defendant's contention before us, the cases relied upon by
the motion judge, State v. Compton, 304 N.J. Super. 477, 482 (App. Div.
1997), State v. Moorman, 286 N.J. Super. 648, 657 (App. Div. 1996), and
Estelle v. McGuire, 502 U.S. 62, 72 (1991), supported her ruling. In Compton,
we affirmed the admission of evidence of prior similar acts of child abuse to
rebut defendant's claim that the child's death was accidental. 304 N.J. Super.
at 482. In Moorman, we held that "prior episodes of child abuse unconnected
with the direct cause of the child's death [were] admissible as proof of absence
of accident or mistake." 286 N.J. Super. at 660. In Estelle, the United States
Supreme Court held that "[w]hen offered to show that certain injuries are a
product of child abuse, rather than accident, evidence of prior injuries is
relevant even though it does not purport to prove the identity of the person
who might have inflicted those injuries." 502 U.S. at 68.
Bryce did not have any body bruises on the morning of July 11, when
Sparrow dropped him off to defendant, and defendant was the sole caretaker
during that day. That evening, Sparrow noticed bruises on Bryce. Thus, there
was clear and convincing evidence from the video for the jury to consider
16 A-2456-19
whether defendant lied that Bryce fell and that he was not responsible for
Bryce's injuries, which in turn could show that the fatal injuries Bryce incurred
six days later were not the result of an accident as defendant claimed.
B. Dr. Sultana's Testimony
Defendant argues the judge should have held a pretrial hearing to decide
whether Dr. Sultana could testify about Bryce's injuries, which were attributed
to some sort of blunt trauma, that she did not observe during her examination
of him on July 17, 2018, but were depicted in photos taken by his mother on
July 11. The doctor testified that had she seen them, she would have reported
them as indicative of child abuse. Defendant asserts Dr. Sultana's testimony
that Bryce was not injured before being left in his care on July 17, was mere
speculation and not an opinion based on reasonable medical certainty. He
argues because there was no clear and convincing evidence that he caused
Bryce's fatal injuries on July 16, her testimony does not satisfy Cofield's third
prong. Relying on State v. Barden, 195 N.J. 375, 390 (2008) and State v.
Fortin, 162 N.J. 517, 534 (2000), defendant also contends the judge should
have given a limiting instruction to the jury regarding other crimes' evidence
when the July 11 testimony was presented and when Dr. Sultana testified that
Bryce showed signs of abuse, as well as in the final jury charges. Defendant
17 A-2456-19
acknowledges that because these arguments were not raised before the judge,
they must be considered under the plain error standard.
We conclude no plain error occurred. Dr. Sultana testified as a fact
witness: a physician treating Bryce's lip injury. She did not opine that the
injury was caused by abuse. In fact, she believed the injury was self-inflicted
by Bryce being "clumsy." Given that she was not providing expert testimony,
her testimony did not have to be based on a reasonable degree of medical
certainty. See Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 563 (2016)
(holding that the trial court has the authority to "admit the testimony of a
treating physician regarding the diagnosis and treatment of a patient" without
qualifying the doctor as an expert); Stigliano by Stigliano v. Connaught
Lab'ys, Inc., 140 N.J. 305, 314 (1995) (citation omitted) ("Because the
determination of the cause of a patient's illness is an essential part of diagnosis
and treatment, a treating physician may testify about the cause of a patient's
disease or injury.")
Dr. Sultana's testimony that bruises depicted in a photo of Bryce's back
were suggestive of abuse from blunt trauma was not offered by the State to
show evidence of other bad acts. The testimony was presented to show Dr.
Sultana had not noticed the injuries when she examined Bryce on the morning
18 A-2456-19
prior to his death. In fact, defense counsel's cross of the doctor brought out her
remarks that, had she seen the injuries, she would have reported them as abuse.
Under these circumstances, there was no need for a Cofield analysis, nor any
limiting instructions.
C. Defendant's Statements to Law Enforcement
Defendant argues there was plain error by the trial judge's failure to
sanitize portions of his recorded statement where Porter told defendant that he
did not believe defendant's account of Bryce's park accident. Relying on
Barden, 195 N.J. at 390, and case law from other states, 6 defendant maintains
this was prejudicial because allowing the jury to hear the officers' testimony
was tantamount to the officers testifying that they did not believe him. We
disagree.
Law enforcement officers have been afforded reasonable latitude in
interrogating a suspect "as long as the will of the suspect is not overborne."
State v. Miller, 76 N.J. 392, 403 (1978). In fact, our courts "have permitted
6
Defendant also cites an unreported decision from our court. An unreported
decision does not constitute precedent. R. 1:36-3. It is improper to cite and
rely upon an unreported decision except as allowed by Rule 1:36-3.
19 A-2456-19
the use of trickery in interrogations." State v. Patton, 362 N.J. Super. 16, 31
(App. Div. 2003).
Here, Porter's questioning of the veracity of defendant's account of what
happened to Bryce was a legitimate exercise of police authority and allowing
the jury to hear it provided context to the interrogation. Porter's accusation
that defendant was not truthful constituted an important tool in his effort to
obtain a true account of Bryce's death. The statements were not offered to
persuade the jury that defendant was lying to Porter as neither Porter nor any
other law enforcement officer testified at trial that they did not believe
defendant's account. Doing so would have been improper and inadmissible.
The judge made it clear to the jury that it was obligated to determine the
credibility of the witnesses and the statements admitted into evidence.
Defendant's reliance on Barden is misguided as the case governs the admission
and sanitization of other-crimes evidence. See 195 N.J. at 390. We discern no
unjust result in allowing the jury to consider Porter's comments to defendant
that he did not believe defendant was telling the truth. Defendant has not
shown there is anything in the record suggesting the jury relied on the
detective's comments or that redaction of them would have changed the
outcome of the trial.
20 A-2456-19
D. Dr. Benjamin's Testimony Regarding Manner of Death
Defendant argues Dr. Benjamin failed to opine with a reasonable degree
of medical certainty that the manner of Bryce's death was homicide. State v.
Harvey, 121 N.J. 407, 431 (1990); State v. Freeman, 223 N.J. Super. 92, 116
(App. Div. 1988). Not objecting to the doctor's opinion at trial, defendant
asserts plain error occurred because the judge should have sua sponte struck
the testimony and advised the jury to disregard it. We disagree.
Dr. Benjamin was qualified as an expert in forensic pathology. In
accordance with N.J.R.E. 705, she was able to testify "in terms of opinion or
inference and give reasons therefor without prior disclosure of the underlying
facts or data, unless the court requires otherwise." Dr. Benjamin opined that
Bryce's death was homicide. A medical expert may opine that a death was a
"homicide" in order to rule out the possibility that a victim's injuries were
accidental. See State v. Baluch, 341 N.J. Super. 141, 185 (App. Div. 2001).
Thus, Dr. Benjamin's testimony was "the functional equivalent of ruling out
the possibility that [Bryce's] multiple injuries were self-inflicted or sustained
as a result of mere inadvertence (i.e., accident)." Ibid."[M]edical-opinion testimony must be couched in terms of reasonable
medical certainty or probability; opinions as to possibility are inadmissible."
21 A-2456-19
Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980).
However, the certainty requirement does not oblige experts to use "'talismanic'
or 'magical words,'" so long as the court is "persuaded that 'the doctor was
reasonably confident of'" the opinion. Eckert v. Rumsey Park Assocs., 294
N.J. Super. 46, 51 (App. Div. 1996) (quoting Aspiazu v. Orgera, 205 Conn.
623, 635 (Conn. 1987)); see also id. at 52 (stating that opinion as to causation
will not "be satisfied by a single verbal straightjacket alone, but, rather, by any
formulation from which it can be said that the witness' 'whole opinion' reflects
an acceptable level of certainty") (quoting Matott v. Ward, 399 N.E.2d 532,
534 (N.Y. 1979)). Taken as a whole, Dr. Benjamin's testimony reflects the
requisite degree of certainty, despite not stating the "magic words" that her
opinion was within a reasonable degree of medical certainty.
The judge properly instructed the jury that it was "not bound to accept
the expert's opinion" and may "accept it or reject it" pursuant to State v. Berry,
140 N.J. 280, 292 (1995). Thus, there was no unjust result in allowing Dr.
Benjamin to opine that Bryce's death was due to homicide without giving her
opinion within a reasonable degree of medical certainty.
22 A-2456-19
III.
Defendant argues the trial judge should not have used the word "flight"
in the jury charge regarding the offense of endangering an injured victim. The
judge stated:
The third . . . element the State must prove beyond a
reasonable doubt is that the defendant left the scene of
the injury knowing or reasonably believing that the
injured person, Bryce Sparrow, was physically
helpless, or mentally incapacitated, or otherwise
unable to care for himself at that time. The State need
not prove the defendant’s flight increased risk that
further harm would come to the victim.
[(Emphasis added.)]
Defendant maintains there was no evidence of flight because he remained at
the building and merely left the apartment to wait for Dugan and EMT
responders to arrive. He contends he was prejudiced because "the jury may
have inferred that the [judge] was finding [he] fled and therefore he had a
guilty mind." Although counsel did not object, he contends the judge's
confusing "departure" with "flight" prejudiced him as there was no evidence
that there was any flight. There is no merit to defendant's contention.
"[I]nsofar as consistent with and modified to meet the facts adduced at
trial, model jury charges should be followed and read in their entirety to the
jury." State v. R.B., 183 N.J. 308, 325 (2005). The use of the word "flight" in
23 A-2456-19
the judge's charge was taken verbatim from the Model Jury Charges
(Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12.12)" (rev. Mar. 14,
2016). It was presumptively proper, State v. Whitaker, 402 N.J. Super. 495,
513-14 (App. Div. 2008), and defendant has not shown that the use of the term
"flight" in the charge "possessed a clear capacity to bring about an unjust
result[,]" State v. Nero, 195 N.J. 397, 407 (2008) (citation omitted).
IV.
Defendant raises two arguments to reverse his conviction for
endangering an injured victim. First, he argues that although he did not
request the jury be instructed on the affirmative defense of summoning
medical treatment under N.J.S.A. 2C:12-1.2(c), the judge should have sua
sponte given the instruction. The statute provides:
It is an affirmative defense to prosecution for a
violation of this section that the defendant summoned
medical treatment for the victim or knew that medical
treatment had been summoned by another person, and
protected the victim from further injury or harm until
emergency assistance personnel arrived. This
affirmative defense shall be proved by the defendant
by a preponderance of the evidence.
[N.J.S.A. 2C:12-1.2(c).]
Defendant contends the ample evidence that he summoned medical treatment
warranted the instruction to establish that he was not guilty of endangering an
24 A-2456-19
injured victim. See State v. Blanks, 313 N.J. Super. 55, 63-64 (App. Div.
1998).
In addition, defendant argues the judge erroneously failed to grant his
motion to dismiss the charge of endangering an injured victim at the end of the
State's case. He points out he called 9-1-1 and did not leave the apartment
building––only departing the apartment to wait outside for Dugan and the
EMTs to arrive––as undisputed facts that he sought aid for a non-responsive
Bryce.
None of these arguments have merit. To justify the affirmative defense
of summoning medical treatment, defendant not only would have to show there
was evidence that he obtained medical assistance but also that he "protected
[Bryce] from further injury or harm until emergency assistance personnel
arrived." N.J.S.A. 2C:12-1.2(c). The surveillance video demonstrates that
defendant left Bryce alone for forty-four minutes (1:40 p.m. to 2:24 p.m.) after
they returned to the apartment while Bryce was apparently injured and did not
call 9-1-1 until an hour and twelve minutes (1:40 p.m. to 2:52 p.m.) after they
returned to the apartment. Leaving an injured twenty-three-month-old Bryce
without adult supervision cannot reasonably be viewed as protecting the child.
Defendant offered no proof that he protected Bryce to justify the affirmative
25 A-2456-19
defense of summoning medical treatment. Thus, no unjust result occurred
because the jury was not instructed on the affirmative defense.
Moreover, because there was sufficient evidence that defendant
endangered Bryce by leaving him alone in the apartment while he was injured,
the judge did not err in failing to grant defendant's motion to dismiss the
charge of endangering an injured victim. See State v. Reyes, 50 N.J. 454, 458-
59 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961) (granting a motion
for judgment of acquittal only if, viewing all the evidence in the light most
favorable to the State, "as well as all of the favorable inferences which
reasonably could be drawn therefrom," no "reasonable jury could find guilt of
the charge beyond a reasonable doubt")).
V.
Finally, defendant argues that he was denied effective assistance of his
trial counsel related to the above-noted arguments that counsel failed to object
to the admission of evidence––the opinion testimony of Dr. Sultana; the
interrogation statements by Porter accusing defendant of lying; and Dr.
Benjamin's testimony regarding Bryce's cause of death––and failed to request
that the jury consider the affirmative defense of summoning medical treatment.
26 A-2456-19
To establish a prima facie case of ineffective assistance of counsel, a
defendant "must show that counsel's performance was deficient" and that "the
deficient performance prejudiced the defense." State v. Fritz, 105 N.J. 42, 52
(1987) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Ineffective-assistance claims are more appropriately raised on a petition for
post-conviction relief instead of direct appeal. State v. McQuaid, 147 N.J.
464, 484 (1997). Generally, there is a "policy against entertaining ineffective-
assistance-of-counsel claims on direct appeal because they generally require
examination of evidence outside the trial record." State v. Preciose, 129 N.J.
451, 460 (1992). However, since defendant's ineffective assistance arguments
are related to the arguments which we have rejected above, there is no need to
examine evidence outside the record for their resolution. Hence, we have
considered defendant's ineffective assistance claims and find that they lack
merit.
To the extent we have not specifically addressed any of defendant's
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
27 A-2456-19
Affirmed.
28 A-2456-19