State of New Jersey v. Gregory D. Prior ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0803-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY D. PRIOR,
Defendant-Appellant.
_______________________
Argued January 30, 2024 – Decided February 29, 2024
Before Judges Mayer, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 18-08-0821.
Morgan A. Birck argued the cause for appellant (Joseph
A. Krakora, Public Defender, attorney; Morgan A.
Birck, Assistant Deputy Public Defender, of counsel
and on the briefs).
Deepa S. Jacobs argued the cause for respondent (Mark
Musella, Bergen County Prosecutor, attorney; William
P. Miller, Assistant Prosecutor, of counsel and on the
brief; Catherine A. Foddai, Legal Assistant, on the
brief).
PER CURIAM
Defendant Gregory D. Prior appeals from his convictions related to crimes
occurring on two separate dates—just three days apart. He also appeals from
the sentences imposed. We affirm as to the convictions, and remand to the trial
court to consider the fairness of the sentence imposed consistent with State v.
Torres1 and to amend the judgment of conviction vacating defendant's payment
of restitution.
We recite the facts from the suppression hearing and trial testimony. On
May 24, 2018, defendant stole a Jeep in Paramus. Subsequently, while at a
supermarket in Paramus, defendant grabbed a woman's pocketbook and fled.
On May 27, 2018, around 10:30 a.m., Michelle Fleites went to retrieve her
car keys from her purse after shopping at an Acme supermarket in Fort Lee.
While searching for her keys, Fleites noticed a white male in his fifties or sixties
with light hair, wearing baggy jeans and a baggy sweatshirt, looking at her.
Fleites thought the man was going into the supermarket. Instead, the man
snatched her purse and fled toward a white sedan. Fleites chased the man in an
1
246 N.J. 246 (2021).
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effort to recover her purse, which contained credit cards, personal identification,
and cash in an amount between $170 to $200.
The man opened the door to enter the white sedan. However, before the
man could close the car door, Fleites "wedged" herself between him and the
door. While Fleites struggled to retrieve her purse, the man grabbed items from
the purse and threw them toward the passenger side of the car, scattering the
items on the floor. When the man started the car, Fleites backed away to avoid
being driven off with the car.
Fleites then ran over to another man standing nearby. The man, James
Chung, heard Fleites scream, saw her run toward a white car, and struggle with
a man inside the car. Chung identified the car as a late-model white Honda Civic
sedan. Chung described the man driving the car as an older white male.
Fleites asked Chung to call 9-1-1. Chung did so, and provided the car's
license plate number to the dispatcher. Video footage recovered from the Acme
supermarket and shown at trial captured the encounter between Fleites and the
suspect. The video showed the suspect wearing a sweatshirt with distinctive
striped markings on the sleeves.
At approximately 10:27 a.m. on May 27, 2018, a white Honda sedan was
reported to the police as stolen. At 10:44 a.m., Fleites reported the theft of her
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purse to the police and gave a detailed description of the suspect. At 10:48 a.m.,
New Jersey State Trooper Richard Musso received a call that a white Honda
sedan had been stolen, was travelling on the New Jersey Turnpike, and was
allegedly involved in a robbery in Fort Lee. The white Honda sedan was tracked
through a cell phone still in the car, which belonged to the owner of the stolen
car.
Around 11:00 a.m., Musso also received notice that the stolen white sedan
had been tracked to the Vince Lombardi Service Area (service area) on the New
Jersey Turnpike, and the suspect in the Fort Lee supermarket robbery was an
unshaven white male in his fifties wearing a blue sweatshirt with stripes.
When Musso arrived at the service area at 11:02 a.m., he found the white
Honda sedan with the identified license plate number parked in front of the
convenience store. Musso maneuvered his patrol car behind the sedan to prevent
the vehicle from leaving the parking lot. After another trooper arrived, Musso
looked through the window of the white Honda sedan and noticed a purse on the
passenger-side floor.
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Musso entered the service area's convenience store and saw four people
inside.2 Only one person inside the convenience store fit the suspect's
description.
While inside the convenience store, Musso asked to speak with defendant.
Musso asked where defendant lived, and defendant responded he was homeless.
This response prompted Musso to inquire how defendant travelled to the service
area. Defendant simply shrugged.
Based on defendant's reaction, Musso assumed defendant did not want to
continue speaking. As a result, Musso handcuffed defendant, advised him of his
Miranda3 rights, and placed him in the back seat of the patrol car.
Inside the patrol car, defendant admitted to Musso that he stole the white
Honda sedan. However, there was no recording of defendant's conversation with
Musso because the equipment in the patrol car malfunctioned. Musso reportedly
did not realize the malfunction until much later.
2
The four people in the convenience store were a young man and a young
woman in their "[t]wenties to thirties" who appeared to be together, the store
cashier, and defendant. According to Musso, defendant was an unshaven male
in his fifties and wore a blue sweatshirt with yellow stripes.
3
Miranda v. Arizona, 384 U.S. 436 (1996).
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In searching defendant, Musso found a cigarette box containing $197 in
cash in defendant's right front pant pocket. Lieutenant Edward Young of the
Fort Lee Police Department, who also responded to the service area, testified a
search warrant for the car found a purse matching the description given by
Fleites, a cell phone, and a wallet containing Fleites's driver's license.
Video footage from the service area, which was played during trial,
showed a white car parking across from the convenience store. In the video, an
individual fitting defendant's description and wearing the same distinctive
clothing—a dark sweatshirt with distinctive stripes on the sleeves—is depicted
walking from the direction of the white car. The video did not clearly show the
individual exiting the white car.
In August 2018, a Bergen County grand jury returned an indictment
against defendant for the following charges occurring on May 24, 2018: third-
degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); third-degree theft by
unlawful taking of movable property in connection with a stolen Jeep, N.J.S.A.
2C:20-3(a) (count two); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1)
(count three). Defendant was also indicted on the following charges occurring
on May 27, 2018: third-degree theft receipt of stolen property, N.J.S.A. 2C:20-
7(a) (count four); and second-degree robbery, N.J.S.A. 2C:15-1 (count five).
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Defendant filed pretrial motions to suppress his statement to Trooper
Musso and sever the charges into separate trials based on the dates of the alleged
offenses. The judge granted defendant's motion to sever the charges.
The judge conducted a hearing on defendant's suppression motion. At the
suppression hearing, and consistent with his trial testimony, Musso described
his arrival at the service area and encounter with defendant. He testified that
after handcuffing and placing defendant in his patrol car, Musso advised
defendant of his Miranda rights.
Video footage from the dashboard camera of another police vehicle at the
scene showed Musso consulting with his supervisor in the service area's parking
lot. In reporting to his supervisor, Musso advised defendant was informed of
his rights. Musso also told his supervisor defendant did not admit to stealing
the car because "he had nothing to say."
Despite defendant stating he "had nothing to say," when Musso returned
to his patrol car, Musso asked defendant why he stole the car. Defendant
answered he stole the car because he was addicted to heroin and needed the
money to buy drugs.
According to Musso, defendant did not appear to be under the influence
of alcohol or drugs at the time. Nor did defendant appear confused regarding
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his rights. Musso further testified defendant acknowledged understanding his
rights after receiving the Miranda warnings. However, because the recording
equipment in Musso's patrol car malfunctioned, the conversation was not
recorded. Musso explained he was unaware of the malfunction until he sought
to retrieve the recording.
On July 24, 2019, the judge denied defendant's motion to suppress
defendant's statement. The judge found Musso's account of the encounter
credible. The judge noted Musso duly advised defendant of his rights prior to
defendant's statement, and defendant acknowledged understanding those rights.
Further, the judge concluded the encounter was brief, and there were no signs
Musso forced or coerced defendant into making a statement. The judge also
found no evidence of intoxication, fatigue, or other impairment prior to
defendant making the statement. The judge concluded the State met its burden
of demonstrating beyond a reasonable doubt that defendant's statement was
knowing and voluntary.
Counts four and five, regarding the charges related to the events occurring
on May 27, 2018, were tried first. The jury heard the State's case on those counts
from October 9 through October 17, 2019. After hearing the testimony and
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considering the evidence, the jury convicted defendant on count four and a
lesser-included offense of third-degree theft of a person on count five.
On October 22, 2019, defendant entered a guilty plea on count three to an
amended charge of third-degree theft of a person, subject to the State's
agreement to dismiss the remaining two counts and recommend an extended-
term nine-year sentence to run concurrent to defendant's sentence on counts four
and five.
Prior to sentencing, defendant applied for admission to Recovery Court.
In a January 28, 2020 order and written decision, a different judge denied the
application because defendant had prior convictions for aggravated assault and
was subject to an extended-term sentence.
Defendant appeared for sentencing on February 14, 2020. At sentencing,
defendant moved to withdraw his plea on count three, asserting he had been
incorrectly informed regarding the consequences of the plea on his Recovery
Court application. Defendant also requested postponement of sentencing on
counts four and five.
The sentencing judge granted defendant's motion to withdraw the plea on
count three. However, he declined to postpone sentencing on the remaining
counts. The judge sentenced defendant to a term of five years on count four and
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a term of ten years on count five, subject to a period of parole ineligibility on
each count. Additionally, the judge ordered the sentence on count four to run
consecutively to the sentence on count five.
On September 21, 2021, defendant pleaded guilty to count three as
amended to second-degree robbery.
On January 28, 2022, the judge sentenced defendant on count three as
amended to a term of nine years, subject to a period of parole ineligibility
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge ordered
the sentence on count three to run concurrently to defendant's sentences on
counts four and five. On February 10, 2022, the judge signed the judgment of
conviction memorializing the sentences imposed, including an amended
judgment of conviction regarding the counts to which defendant had previously
been sentenced.
On appeal, defendant raises the following arguments:
POINT I
THE STATEMENT OF DEFENDANT SHOULD
HAVE BEEN SUPPRESSED BECAUSE HE
INVOKED HIS RIGHT TO SILENCE, WHICH WAS
SUBSEQUENTLY VIOLATED.
A. Upon remand, if the statement is suppressed,
[defendant] should be given the opportunity to take
back his plea.
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POINT II
[DEFENDANT'S] CONVICTIONS SHOULD BE
REVERSED BECAUSE THE OFFICER'S MENTION
OF THE EXCLUDED OUT-OF-COURT
IDENTIFICATION COULD NOT HAVE BEEN
CURED.
POINT III
TWO INVESTIGATING OFFICERS GAVE
IMPROPER LAY-WITNESS OPINION TESTIMONY
AS TO CRUCIAL IDENTIFICATION DETAILS.
(Not Raised Below).
POINT IV
REPEATED INSTANCES OF PROSECUTORIAL
MISCONDUCT DENIED DEFENDANT A FAIR
TRIAL. (Partially Raised Below).
POINT V
THE COURT SHOULD HAVE GIVEN AN
ADVERSE INFERENCE INSTRUCTION TO THE
JURY REGARDING THE FAILURE TO RECORD
THE QUESTIONING OF DEFENDANT. (Not Raised
Below).
POINT VI
THE CUMULATIVE IMPACT OF THE ERRORS
DISCUSSED ABOVE DEPRIVED [DEFENDANT]
OF A FAIR TRIAL. (Not Raised Below).
POINT VII
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BECAUSE DEFENDANT DID NOT KNOWINGLY
AND VOLUNTARILY WITHDRAW FROM HIS
PLEA, HIS SECOND PLEA IS INVALID.
POINT VIII
BECAUSE THE TRIAL COURT FAILED TO
ENGAGE IN EITHER A YARBOUGH[4] OR TORRES
ANALYSIS WHEN SENTENCING DEFENDANT TO
CONSECUTIVE SENTENCES, THIS COURT
SHOULD REMAND FOR RESENTENCING.
POINT IX
BECAUSE THE MONEY THAT WAS STOLEN WAS
RECOVERED AND RETURNED TO THE VICTIM,
IT WAS ERRONEOUS TO ORDER DEFENDANT TO
PAY RESTITUTION.
I.
We first address defendant's argument the judge erred in failing to
suppress his statement to Trooper Musso because defendant invoked his right to
remain silent. The State acknowledges the judge may have erred in denying
defendant's motion to suppress. However, the State asserts the error, if any, was
harmless in light of the overwhelming evidence of defendant's guilt presented to
the jury.
4
State v. Yarbough, 100 N.J. 627 (1985).
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A defendant has a federal constitutional right against self-incrimination
guaranteed by the Fifth and Fourteenth Amendments, Malloy v. Hogan, 378 U.S.
1, 6 (1964), as well as an analogous state privilege against self-incrimination
under our common law and evidence rules, State v. Hartley, 103 N.J. 252, 260
(1986). To safeguard those guarantees in the coercive environment of a
custodial interrogation, suspects must be advised that they have the right to
remain silent, any statement they make may be used against them, and they have
the right to an attorney. Miranda, 384 U.S. at 444.
A suspect's invocation of those rights must be "scrupulously honored."
Michigan v. Mosley, 423 U.S. 96, 103 (1975). As our Supreme Court explained:
[A] suspect is not required to express a desire to
terminate interrogation with the "utmost of legal
precision." State v. Bey I, 112 N.J. 45, 65 (1988).
"[A]n equivocal indication of a desire to remain silent,
like an unequivocal indication, suffices to invoke
Miranda's requirement that the interrogation cease."
Christopher v. Florida, 824 F.2d 836, 840, 841 (11th
Cir. 1987). Thus, a suspect who has "nothing else to
say," id. at 842, or who "[does] not want to talk about
[the crime]," State v. Bishop, 621 P.2d 1196, 1198 (Or.
Ct. App. 1980), has asserted the right to remain silent,
thereby requiring the police immediately to stop
questioning.
[State v. Johnson, 120 N.J. 263, 281 (1990) (citations
reformatted).]
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A court may only admit incriminating statements made by a suspect
during a custodial interrogation if the suspect was duly advised of, and validly
waived, their rights prior to making the statement. Miranda, 384 U.S. at 444-
45. The State bears the burden of proving the elements for admission of a
suspect's statement beyond a reasonable doubt and, particularly with regard to a
purported waiver of the Miranda rights, must establish that the waiver was
knowing, voluntary, and intelligent. State v. Presha, 163 N.J. 304, 313 (2000).
Whether the waiver satisfies these criteria depends on the following:
the totality of the circumstances, including both the
characteristics of the defendant and the nature of the
interrogation. Relevant factors to be considered
include the suspect's age, education and intelligence,
advice concerning constitutional rights, length of
detention, whether the questioning was repeated and
prolonged in nature, and whether physical punishment
and mental exhaustion were involved.
[State v. Galloway, 133 N.J. 631, 654 (1993) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973));
State v. Miller, 76 N.J. 392, 402 (1978).]
A trial court's findings of fact related to a defendant's waiver of Miranda
rights are entitled to deference on appeal provided there is sufficient credible
evidence in the record to support those findings. State v. Elders, 192 N.J. 224,
242-44 (2007). However, a trial court's legal conclusions are subject to de novo
review. State v. Shaw, 213 N.J. 398, 411 (2012).
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Under New Jersey law, "[i]n the context of custodial interrogation, once
a defendant clearly and unambiguously invokes his right to remain silent,
interrogation must cease." State v. Maltese, 222 N.J. 525, 545 (2015). "[A]ny
words or conduct that reasonably appear to be inconsistent with defendant's
willingness to discuss his case with the police are tantamount to an invocation
of the privilege against self-incrimination." State v. Alston, 204 N.J. 614, 622
(2011) (first alteration in original) (quoting State v. Bey (Bey II), 112 N.J. 123,
136 (1988)).
As such, "a suspect who has 'nothing else to say,'" Johnson, 120 N.J at
281 (quoting Christopher, 824 F.2d at 836, 842), or who has indicated "he would
have nothing to say," Bey I, 112 N.J. at 64, has "asserted the right to remain
silent, thereby requiring the police immediately to stop questioning," Johnson,
120 N.J. at 281. If the police persist in questioning a suspect under such
circumstances, a statement made in violation of the privilege must be
suppressed. See Maltese, 222 N.J. at 546.
Defendant argues the judge erred in admitting his statement about stealing
the car because he invoked his right to remain silent. We agree.
Defendant told Musso "he had nothing to say." This statement was a clear
invocation of defendant's right to remain silent. Thus, Musso's continued
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questioning of defendant thereafter violated that right and required suppression
of the statement. On these facts, we are satisfied the judge erred in admitting
defendant's statement.
While we agree defendant's statement to Musso should have been
suppressed, we must determine whether, as the State contends, the error was
harmless beyond a reasonable doubt in light of the overwhelming evidence of
defendant's guilt introduced during the trial. State v. Weaver, 219 N.J. 131,154
(2014).
The State's proofs of defendant's guilt on this record were sufficiently
strong in the absence of defendant's statement to Musso. Chung testified the
suspect who stole Fleites's purse fled in a white Honda sedan. Chung reported
the license plate number of the vehicle to the police. Fleites and Chung provided
detailed descriptions of the suspect, including the suspect's wearing of a baggy
blue sweatshirt with distinctive yellow stripes on the sleeves. The video footage
from the Acme supermarket corroborated the eyewitnesses' description of the
suspect. Defendant, who fit the description, was at the service area along with
the stolen white Honda sedan, as confirmed by Musso, Young, and video footage
from the service area. Additionally, defendant had the same amount of cash on
his person that Fleites reported stolen.
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Even absent defendant's statement to Musso, there was a multitude of
untainted and unchallenged evidence presented to the jury to prove defendant's
guilt. Fleites, Chung, and Musso identified defendant as having committed the
crimes based on his distinct appearance and clothing as seen in the video footage
from the Acme supermarket and the service area. Moreover, the evidence
related to the theft of the white Honda sedan was independently substantiated
through evidence other than defendant's statement to Musso, including the
following: Chung's description of the car and driver that fled the Acme
supermarket with Fleites's purse; Chung's immediately reporting the license
plate number of that car to 9-1-1; law enforcement's tracking of the stolen white
Honda using a cell phone belonging to the owner of the stolen white Honda
sedan which remained in the car while it travelled to the service area; and the
short duration of time between the reported thefts of the white Honda sedan and
Fleites's purse.
Because there was strong circumstantial evidence of defendant's guilt in
this matter, the error in admitting defendant's statement after invoking his right
to remain silent did not deprive him of a fair trial. Here, the convictions were
not substantially dependent on defendant's statement to Musso. We are satisfied
the evidence was sufficient to establish defendant's guilt and admission of
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defendant's statement was harmless error beyond a reasonable doubt. See
Weaver, 219 N.J. at 154.
II.
We next address defendant's argument that the denial of his motion for a
mistrial constituted an abuse of discretion. Defendant moved for a mistrial after
Lieutenant Young mentioned Fleites's out-of-court identification of defendant
during cross-examination. We reject this argument.
We review a trial judge's denial of a motion for mistrial for abuse of
discretion and will reverse only if the denial resulted in a "manifest injustice."
State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019) (quoting State v.
Harvey, 151 N.J. 117, 205 (1997)). In deciding an application for a mistrial, a
court should "consider the unique circumstances of the case," and reject a
mistrial application in favor of any "'appropriate alternative course of action,'"
such as a curative instruction or brief adjournment, which presents a viable
remedy. State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Allah, 170 N.J.
269, 281 (2002)).
To determine whether a curative instruction provides an appropriate
alternative to a mistrial, a court should evaluate the adequacy of a proposed
instruction in light of the nature and prejudicial effect of the offending evidence,
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the timing and substance of the instruction, and the extent of the risk that
imperfect compliance will yield an unjust result. Herbert, 457 N.J. Super. at
505-08. A motion for mistrial should be denied where a curative instruction
cured any prejudice. State v. Winter, 96 N.J. 640, 647 (1984).
Here, prior to trial, defendant challenged the State's anticipated
introduction of Fleites's out-of-court identification of defendant. Because
defendant established a threshold showing of suggestiveness in the identification
procedure to warrant a hearing under State v. Henderson, 208 N.J. 208, 288-89
(2011), the State agreed not to pursue any evidence of the out-of-court
identification at trial. Consequently, the judge ruled Fleites was not permitted
to proffer either an in-court or out-of-court identification of defendant.
Although Lieutenant Young was told not to mention Fleites's out-of-court
identification, he did so at trial. In response to defense counsel's cross-
examination of Young, challenging the thoroughness of the police investigation
in this case, the following exchange occurred:
Q. Can you explain why you determined not to . . .
test for DNA and fingerprints with regards to this
investigation?
A. Because it wasn't needed in my opinion.
Q. Okay. And can you tell us how you came to that
opinion during this investigation?
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A. Because the victim positively identified the
defendant in this case.
Defense counsel immediately objected. However, counsel's objection was
limited to Young's use of the term "victim." In response to that objection, the
judge gave an immediate curative instruction to the jury.
After issuing the curative instruction, defense counsel requested a sidebar
conference and objected to Young's mentioning Fleites's identification of
defendant. Defendant moved for a mistrial based on Young's statement "the
victim positively identified the defendant."
The judge agreed Young's mentioning that an eyewitness identified
defendant could have an effect on the jury's deliberations. Although the judge
reserved on the mistrial motion, the judge gave the jury the following
instruction:
[Y]ou heard testimony from this witness regarding an
alleged out-of-court identification of the defendant.
That is not evidence [] in this case. Anything regarding
that alleged identification must be disregarded by you
and stricken from the record. That testimony and any
consideration of any out-of-court identification should
be entirely disregarded and may not be used . . . by you
for any purpose. That testimony should not come into
your deliberations, your weighing of the evidence, or
your ultimate decision in this matter.
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After Young completed his testimony, the judge addressed defendant's
motion for a mistrial. The judge denied the mistrial, finding the "strong"
curative instruction issued while Young remained on the witness stand
eliminated any prejudice from the officer's solitary "fleeting remark."
Defendant concedes the judge's curative instruction was timely and
forceful. However, defendant argues the instruction failed to adequately explain
why the jury needed to disregard the evidence. He further asserts Young's
testimony regarding Fleites's identification of defendant influenced the jury to
return a verdict it might not otherwise have reached based on the lack of direct
evidence establishing defendant's presence at the Acme supermarket or in the
stolen white Honda sedan.
We note defense counsel never objected to the judge's curative instruction
related to Young's testimony. Moreover, the single remark by Young was brief,
and the judge immediately and compellingly told the jury to disregard that
testimony.
Additionally, during summation, defense counsel highlighted that Fleites
never identified defendant as the perpetrator. However, Fleites provided a
description of the suspect at trial. Thus, the jury considered Fleites's testimony
in conjunction with other evidence, including Chung's testimony and the video
A-0803-20
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footage from the Acme supermarket and the service area, to determine whether
the perpetrator and defendant were the same person.
We are satisfied Lieutenant Young's single brief remark was unlikely to
lead to an unjust result. Based on the judge's curative instructions to the jury,
Young's mention of Fleites's identification of defendant was not sufficiently
prejudicial to warrant a new trial. On these facts, we discern no abuse of
discretion in the judge's denial of defendant's mistrial motion.
III.
We next review defendant's claim, raised for the first time on appeal, the
judge erred in permitting the law enforcement officers to provide improper lay
witness opinion testimony related to "identification details" from the video
footage.
An error raised for the first time on appeal is reviewed for plain error.
State v. C.W.H., 465 N.J. Super. 574, 594 (App. Div. 2021) (citing State v.
Macon, 57 N.J. 325, 333 (1971)). Applying that standard of review, we will
"disregard any error or omission 'unless it is of such a nature as to have been
clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "The
possibility of an unjust result must be 'sufficient to raise a reasonable doubt as
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to whether the error led the jury to a result it otherwise might not have reached.'"
Id. at 594-95 (quoting State v. Ross, 229 N.J. 389, 407 (2017)).
Here, defendant challenges Lieutenant Young's lay witness opinion, based
on the officer's review of the service area video footage, that defendant occupied
the stolen car. Defendant also challenges Trooper Musso's lay witness opinion
identifying defendant from that same video footage.
At the time of trial, N.J.R.E. 701 provided as follows:
[i]f a witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences may be
admitted if it (a) is rationally based on the witness'
perception and (b) will assist in understanding the
witness' testimony or determining a fact in issue.
The rule is designed to "ensure that lay opinion is based on an adequate
foundation." State v. Sanchez, 247 N.J. 450, 466 (2021) (quoting State v. Singh,
245 N.J. 1, 14 (2021)).
To satisfy the first requirement—the opinion be rationally based on the
witness's own perception—a witness need not have observed the crime itself or
been present when a recording was made to provide admissible testimony
regarding the identity of a person depicted in the recording. Id. at 469. The
witness need only "have actual knowledge, acquired through his or her senses,
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of the matter to which he or she testifies." Id. at 466 (quoting State v. LaBrutto,
114 N.J. 187, 197 (1989)).
To satisfy the second requirement—the testimony must assist the jury
either in understanding the witness's testimony or determining a disputed factual
issue—the testimony should pertain to a matter which the witness is better
positioned than the jury to form a conclusion. Id. at 469-70. In that regard, a
judge should consider the "nature, duration, and timing of the witness's contacts
with the defendant," and, in particular, the extent to which that contact occurred
close in time to the offense or gave the witness an opportunity to observe aspects
of the defendant's appearance which may not be as readily apparent at trial. Id.
at 470-72.
Even when the issue is timely raised, a court's decision whether to exclude
lay witness opinion testimony is entrusted to the trial judge's sound discretion,
and will not be disturbed on appeal unless "so wide of the mark that a manifest
denial of justice resulted." Id. at 465-66 (quoting Singh, 245 N.J. at 13). But
where, as here, a defendant made no objection at trial, we review for plain error.
R. 2:10-2.
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A.
Defendant asserts Lieutenant Young's testimony that he "reasonably
believed" the service area video footage depicted defendant alighting from the
stolen white Honda sedan was improper lay witness opinion testimony. The
footage showed a car matching the description of the stolen white Honda sedan
arriving at the service area parking lot and parking out of the camera's view. A
few seconds later, a person fitting defendant's description and wearing cloth ing
similar to that worn by the perpetrator who stole Fleites's purse walked onscreen
from the direction of the parked stolen vehicle, crossed the parking lot, and
strolled out of the camera's view.
Prior to the challenged testimony, defense counsel vigorously cross-
examined Young about his written police report regarding the same video
footage. The following exchange occurred:
Q. Okay. Now, sir, in your report didn't you write—
the report that you gave to the prosecutor to prosecute
this man where, basically, you stated in there that . . .
the video saw him exiting the . . . parked vehicle. Is
that right? Isn't that in your report, sir?
A. Yes.
Q. Okay. That's not true, isn't it?
A. That is true because—
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Q. Okay.
A. Allow me to explain.
Q. Okay. Listen—no, you can explain—[the
prosecutor] gave you—
A. Okay.
Q. —ample opportunity. The video that we watched
does not show him getting out of any vehicle. Isn't that
right?
A. It does not show him getting out of the driver's
seat.
....
Q. Okay. Or . . . any seat for that matter, right?
A. No.
The prosecutor revisited this issue during redirect examination. The
prosecutor sought to have Young clarify his testimony through the following
exchange:
Q. Now, I wan[t to] refer back to your police report.
So, in your police report during cross-examination
there was a discussion that . . . you observed the
defendant exiting the vehicle on the surveillance video,
correct?
A. Correct.
Q. Can you just clarify what you were trying to
clarify with regard to that entry in your police report?
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A. Can I use the video to give my answer?
Q. Sure. I can play the video.
....
LIEUTENANT YOUNG: So, here is the subject
vehicle in the investigation. Subject vehicle is parking.
There's an individual who identified as Gregory Prior
leaving the area of that vehicle. And I . . . reasonably
believed that he had exited that vehicle based off that
video and the surveillance.
On Young's recross-examination, defense counsel again raised the issue:
Q. Okay. Now, you . . . looked at this video and it's
your words, you specifically said, you reasonably
believed he exited the vehicle. Is that right?
A. Yes.
Q. Okay. So, you believed. You didn't see him exit
this vehicle, right, it's your belief that he did?
A. Yes.
Defense counsel did not object to this line of questioning or Young's responses.
On appeal, defendant challenges Young's statements about seeing
defendant exit from the stolen white Honda sedan car. Defendant argues
Young's testimony exceeded the bounds of appropriate lay witness opinion
testimony because whether defendant exited from the stolen car was not within
Young's personal knowledge. Additionally, defendant contends Young was in
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no better position than the jury to evaluate the images on the service area's video
footage.
Here, Young rendered his opinion relying on his personal observations of
the video and defendant's appearance. See Sanchez, 247 N.J. at 466. Arguably,
Young was in a better position than the jury to evaluate the footage becaus e,
based on Young's own first-hand observations, he was familiar with defendant's
appearance on the day the footage was taken and the layout of the service area.
Even if Young's testimony was inappropriate lay witness opinion
testimony, which we do not agree, the admission of his testimony did not amount
to plain error on this record. Defense counsel highlighted the obvious
limitations regarding Young's testimony during pointed cross-examination.
Further, the jury evaluated that testimony in conjunction with the actual video
footage from the service area. Thus, we are satisfied there was no error in
allowing Young's testimony as to the person depicted in the service area's video
footage.
B.
Defendant next challenges Trooper Musso's testimony narrating the same
video footage from the service area. On cross-examination, defense counsel
asked:
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Q. Now, specifically I want you to watch the
video . . . with the individual that walks from the top
portion of the screen down to the bottom. Okay. Now,
that individual do you recognize him in this video?
A. Yes, I do.
Q. Okay. And what do you—who do you recognize
him as?
A. [T]he defendant.
Defendant failed to object to Musso's testimony identifying defendant in the
video footage.
On appeal, defendant claims Musso's testimony was improper because a
police officer may not opine as to the identity of a suspect in video footage.
Moreover, defendant claims the testimony was highly prejudicial when
considered in conjunction with Young's testimony.
Here, Musso's testimony fell within the bounds of proper lay witness
opinion testimony. Musso had direct contact with defendant the day of the
incident at the very location where the video footage was taken. Musso
identified defendant in the video footage relying on his first-hand observation
of defendant's appearance in the convenience store. Based on Musso's personal
contact and interaction with defendant, he was better positioned to make an
evaluation of the person depicted in the service area's video footage.
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The Court's opinion in Singh, 245 N.J. at 17, on which defendant relies,
is not to the contrary. Singh does not stand for the proposition that lay witness
opinion testimony from a law enforcement officer is always improper. While
the Singh Court found the detective's repeated references to the individual in the
video as "the defendant" were inappropriate, the Court concluded the admission
of the testimony did not constitute plain error. Ibid. We are satisfied there was
no error on this record, let alone plain error, in admitting Musso's testimony
identifying defendant from the service area video footage.
C.
Defendant raises State v. Watson, 254 N.J. 558 (2023), in support of his
arguments related to the lay witness opinion testimony proffered by Lieutenant
Young and Trooper Musso. Four years after the conclusion of defendant's trial,
the Watson Court held "[a] fact witness who participated in an event can . . .
offer lay opinion testimony about parts of a recording that depict what they
perceived in real time." Id. at 599. The Court stated "narration evidence by a
witness who did not observe events depicted in a video in real time may not
include opinions about a video's content and may not comment on facts the
parties reasonably dispute." Ibid.
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In that case, the Court "provide[d] additional guidance[,] both to
emphasize the limited nature of narration testimony and to ensure that the
testimony does not improperly intrude on the jury's domain." Id. at 603. Watson
simply offered further guidance in implementing the existing framework under
Singh and Sanchez related to narration of video evidence and does not warrant
reversal of defendant's convictions based on improper lay witness opinion
testimony.
IV.
Also for the first time on appeal, defendant challenges various statements
made by the prosecutor during closing argument. Defendant argues the
statements constituted prosecutorial error and deprived him of a fair trial. We
disagree.
Prosecutors are "charged not simply with the task of securing victory for
the State but, more fundamentally, with seeing that justice is served." State v.
Reddish, 181 N.J. 553, 641 (2004). While "afforded considerable leeway"
during summation, prosecutors "must refrain from improper methods that result
in a wrongful conviction." State v. Smith, 167 N.J. 158, 177 (2001).
Specifically, prosecutors must confine their comments only to "evidence
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revealed during the trial and reasonable inferences to be drawn from that
evidence." Id. at 178.
However, "'not every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." State v. Jackson, 211 N.J. 394, 408-
09 (2012) (quoting State v. Williams, 113 N.J. 393, 452 (1988)). A reviewing
court must evaluate a prosecutor's challenged remarks in the context of the entire
summation. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing
State v. Carter, 91 N.J. 86, 105 (1982)). Reversal is required only if the remarks
were "'clearly and unmistakably improper'" and "'substantially prejudiced the
defendant's fundamental right to have a jury fairly evaluate the merits of his or
her defense.'" State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Harris,
181 N.J. 391, 495 (2004)). A reviewing court should consider "(1) whether
defense counsel made timely and proper objections to the improper remarks; (2)
whether the remarks were withdrawn promptly; and (3) whether the court
ordered the remarks stricken from the record and instructed the jury to disregard
them." Smith, 167 N.J. at 182.
"Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial." State v. Echols, 199 N.J. 344, 360 (2009)
(quoting State v. Timmendequas, 161 N.J. 515, 576 (1999)). "[T]he failure to
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object also deprives the court of an opportunity to take curative action ." State
v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009). Because defense counsel
in this matter failed to object to the remarks now claimed to constitute
prosecutorial error, "defendant must demonstrate plain error to prevail."
Timmendequas, 161 N.J. at 576.
Here, defendant challenges four remarks by the prosecutor during
summation.
A.
In the first challenged remark, the prosecutor stated, "Sometimes there are
legal reasons that I can't bring you certain evidence. Sometimes I can't bring
you certain things that you may want." Before the prosecutor could complete
the thought, defense counsel objected. The judge promptly instructed the jury:
[T]he objection is sustained. Your decision is to be
based solely upon the evidence that you hear from the
testimony from the witness stand and any exhibits
admitted into evidence. Okay? I want to remind you,
again, that comments made by counsel on their opening
and closing are not evidence, all right?
On appeal, defendant asserts the judge's curative instruction was
insufficient. He argues the prosecutor's remark directly alluded to Fleites's
excluded out-of-court identification of him. He contends the judge's broad and
general instruction failed to address the problem—the prosecutor's inappropriate
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implication that the State had evidence that could not be presented—and the
judge should have explicitly instructed the jury to disregard the remark. We
disagree.
A prosecutor may not imply there was further incriminating evidence
outside the record. Id. at 595. During opening arguments, the State informed
the jury it would present evidence of Fleites's identification of defendant and
testimony from another witness, the owner of the stolen white Honda sedan.5
During closing argument, defense counsel reminded the jury that despite the
State's promise to present such evidence during the trial, no such evidence was
presented.
Here, the State never had an opportunity to complete its argument to the
jury related to missing evidence. The half-finished thought during the
prosecutor's closing argument, without further context, was of little moment
such that the judge's prompt instruction, which the jury is presumed to follow,
State v. Burns, 192 N.J. 312, 335 (2007), sufficed to ensure the jury confined its
considerations expressly limited to the evidence presented in the record.
5
The State could not locate the owner of the stolen white Honda sedan to testify
at trial.
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Moreover, defense counsel never objected to the curative instruction
during closing argument. Further, defendant invited the State's response
regarding missing evidence during closing argument. See State v. Engel, 249
N.J. Super. 336, 379 (App. Div. 1991) (concluding that "prosecutor's remarks
did no more than respond substantially" to defense's argument "in order to 'right
the scale'" (quoting United States v. Young, 470 U.S. 1, 13 (1985))).
Additionally, Fleites's identification of defendant was absent from the
record because the judge held her in-court identification would be inadmissible,
given Fleites's identification was unduly suggestive and unreliable. The
prosecutor's single remark regarding evidence not presented to the jury was not
so prejudicial in the context of the implication raised by defense counsel during
closing argument to warrant reversal of defendant's convictions.
B.
Defendant also challenges the prosecutor's response to the argument that
Musso's account of defendant's statement was suspect because the statement was
inexplicably not recorded. During closing argument, the prosecutor stated:
Sometimes technology fails. Trooper Musso thought
the camera was working, thought his mic was working,
and realized after the fact that it wasn't working.
Sometimes that happens. But Trooper Musso testified,
Lieutenant Young testified, Michelle Fleites testified,
and James Chung, all testified that prior to May 27th,
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2018[,] they had no idea who Gregory Prior was. They
have no reason to be untruthful to you on that stand.
They didn't know who he was.
Defense counsel objected, asserting the prosecutor improperly vouched for the
witnesses' credibility. While the judge sustained defendant's objection, the
judge did not give a curative instruction.
Relying on State v. R.B., 183 N.J. 308, 331-32 (2005), defendant
challenges this remark, asserting it implied Musso and Young had no motive to
lie simply because they were law enforcement officers. Defendant correctly
argues a prosecutor may not "contend in summation that the police had no
motive to lie." Ibid.However, taken in context in this case, it is clear the prosecutor argued
the witnesses had no motive to falsely identify defendant because none of the
witnesses had any prior association with him. The prosecutor's statement
applied to all four of the State's witnesses. Defendant cites nothing in the
prosecutor's summation implying Musso and Young had any special propensity
to tell the truth solely because of their job as law enforcement officers.
Moreover, the judge sustained defendant's objection to the prosecutor's
comment on this issue and defendant failed to request a curative instruction.
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C.
Defendant further challenges the prosecutor's reference to defendant's
homelessness during summation. The prosecutor told the jury:
[T]here was some testimony that the defendant told
Trooper Musso he was homeless. Why is that relevant
to you? Because he had $200 in his pocket, the same
amount that was not returned to Michelle Fleites. He
was located at the Vince Lombardi service station.
How did he get there but for the stolen vehicle that he
stole that day?
Relying on State v. Terrell, 359 N.J. Super. 241, 247 (App. Div. 2003),
among other authority, defendant argues the State impermissibly referenced
defendant's poverty to establish motive to commit a crime. We disagree that the
prosecutor ran afoul of that principle.
While the prosecutor mentioned defendant's homelessness, she did not do
so to suggest homelessness gave defendant a motive to commit a crime. Rather,
the prosecutor made the statement to demonstrate defendant's lack of innocence
because he arrived at a service area without a car and possessed the same amount
of cash stolen from Fleites. Nothing in the prosecutor's argument implied
defendant committed the crime because he was impoverished.
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D.
Additionally, defendant challenges the prosecutor's mention that Musso
identified defendant from surveillance footage. We previously rejected
defendant's argument that Musso's trial testimony based on the video footage
and his identification of defendant from that footage was improper lay witness
opinion testimony. See infra, Point III. Thus, the prosecutor's statement was
not improper.
We are satisfied the prosecutor's remarks during closing argument did not
constitute prosecutorial error and were not sufficiently harmful to warrant
reversal. At least two of the remarks made by the prosecutor were in response
to defense counsel's closing argument. Additionally, any improper remarks
objected to by defendant were addressed by the judge's sustaining defendant's
objection and issuing prompt curative instructions to the jury.
V.
Defendant, for the first time on appeal, argues the judge erred in failing to
provide an adverse inference instruction regarding Musso's failure to record the
questioning of defendant. We disagree.
A court may consider an adverse inference charge to "balance the scales
of justice" when the State withholds or destroys evidence that could prove
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favorable to the defense at trial. See State v. Dabas, 215 N.J. 114, 140 (2013)
(concluding an adverse inference charge is appropriate where the investigator
destroyed interview notes). Additionally, a court may provide an adverse
inference charge where the police failed to preserve videotaped evidence of an
investigative procedure despite the defense's timely request to preserve such
evidence. State v. Richardson, 452 N.J. Super. 124, 137-38 (App. Div. 2017).
A trial court has broad discretion regarding a timely request for an adverse
inference charge. Id. at 137. Because defendant failed to request an adverse
inference charge, we review for plain error. R. 2:10-2.
On appeal, defendant tacitly acknowledges the purported malfunction of
the equipment in Musso's patrol car precluded the existence of any recording
such that the State could not have withheld or destroyed evidence to warrant an
adverse inference charge. Instead, relying on State v. Benjamin, 442 N.J. Super.
258, 267 (App. Div. 2015), defendant asserts a failure to make the recording
justified an adverse inference charge.
In Benjamin, we held a defendant should be permitted an opportunity to
obtain records required to be produced and maintained by prosecutors pursuant
to an Attorney General directive regarding certain waiver decisions. Id. at 265-
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67. If no such records existed, we determined the trial judge could consider an
adverse inference from the absence of those documents. Id. at 264-65, 267.
In this case, defendant asserts the State Police standard operating
procedures required troopers to have the video and audio equipment "on at all
times" while actively on patrol and may not deactivate the recording function
once activated "until the trooper's involvement with the incident has been
completed." N.J. State Police, S.O.P. F19, Mobile Video/Audio Recording
(MVR) Equipment § IV(B)(1)(b), (2)(d) (2010) (Da46). The procedures further
required troopers to ensure properly functioning video and audio equipment at
the start of each shift and to "immediately" report any equipment problems to a
supervisor. Id. at § IV(B)(1)(c)-(d).
Defendant asserts Musso violated these procedures. He claims the failure
to have functioning equipment in the patrol car warranted an adverse inference
instruction, particularly because the equipment malfunctioned just before
defendant made an incriminating statement to Musso.
Because Musso was unaware the equipment in his patrol case ceased
working, he did not violate the State Police standard operating procedures.
Moreover, even assuming Musso violated the State Police procedures, defendant
never requested an adverse inference charge. See State v. W.B., 205 N.J. 588,
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607-09 (2011) (declining to hold the defendant was entitled to an adverse
inference charge despite the failure to preserve an investigating officer's written
notes where defendant failed to request the charge). Further, defense counsel
cross-examined Musso regarding the lack of operational recording equipment,
argued to the jury in summation the encounter between defendant and Musso
should have been recorded, and implied the failure to record defendant's
statement was suspicious. We are satisfied the lack of an adverse inference
charge under these circumstances was not clearly capable of producing an unjust
result so as to warrant reversal of defendant's convictions.
VI.
We next consider defendant's argument that the cumulative effect of these
claimed errors warrants reversal. We disagree.
Reversal may be warranted if the cumulative effect of a series of errors is
harmful, even if each is harmless in itself. State v. Jenewicz, 193 N.J. 440, 474
(2008). Here, we reject there were reversible errors with the exception of the
admission of defendant's statement after invoking his right to remain silent.
However, as we previously stated, the error in admitting defendant's statement
was "harmless beyond a reasonable doubt" in light of the untainted and
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unchallenged evidence of defendant's guilt. On this record, defendant's
cumulative error argument fails.
VII.
We next consider defendant's ineffective assistance of counsel argument
related to his original plea on count three. An ineffective assistance of counsel
claim is not cognizable on direct appeal because such claims require
consideration of evidence outside the existing record. State v. Preciose, 129
N.J. 451, 460 (1992). Therefore, we decline to consider the argument.
VIII.
We next consider defendant's argument for a sentencing remand on counts
four and five. Defendant claims the sentencing judge failed to engage in the
appropriate legal analysis regarding imposition of consecutive sentences.
Further, defendant argues, and the State concedes, the judge failed to address
the overall fairness of the sentence pursuant to State v. Torres.
A.
Here, the State concedes, and we agree, the judge failed to explain why
the sentence imposed was fair. Thus, we remand to the sentencing court to
provide a statement regarding the overall fairness of defendant's sentence
consistent with Torres.
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B.
However, we reject defendant's claim that the sentencing judge failed to
conduct a proper analysis under State v. Yarbough in imposing consecutive
sentences.
A trial court has broad discretion in imposing a sentence. State v. Dalziel,
182 N.J. 494, 500 (2005). We will not disturb a sentencing decision so long as
the decision adheres to the applicable statutory guidelines, identifies all
applicable aggravating and mitigating factors, and is supported by sufficient
credible evidence in the record. State v. Natale, 184 N.J. 458, 489 (2005). A
sentence is subject to reversal only if it "shocks the judicial conscience." State
v. O'Donnell, 117 N.J. 210, 215-16 (1989).
With respect to a decision whether to impose sentences consecutively or
concurrently, a sentencing court should adhere to the principle that "there can
be no free crimes in a system for which the punishment shall fit the crime." State
v. Carey, 168 N.J. 413, 422 (2001) (quoting Yarbough, 100 N.J. at 643 (1985)).
Thus, a sentencing court should consider the extent to which:
(a) the crimes and their objectives were predominantly
independent of each other;
(b) the crimes involved separate acts of violence or
threats of violence;
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(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple victims; and
(e) the convictions for which the sentences are to be
imposed are numerous.
[Carey, 168 N.J. at 422-23 (quoting Yarbough, 100 N.J.
at 644).]
A sentencing judge is required to weigh these criteria qualitatively rather than
quantitatively. Id. 427-28. Moreover, a sentencing judge must separately state
the reasons for imposing a concurrent or consecutive sentence in the sentencing
decision. Yarbough, 100 N.J. at 643.
Here, the judge noted defendant's extensive criminal history since 1985,
including multiple convictions for robbery, theft, burglary, and assault. Thus,
the judge concluded defendant "most certainly" qualified as a persistent offender
under N.J.S.A. 2C:44-3(a) and satisfied the criteria for a discretionary extended
term sentence.
Next, the judge applied aggravating factor three, N.J.S.A. 2C:44-1(a)(3),
the risk that defendant would commit another offense, and aggravating factor
six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record and
seriousness of the offenses involved. The judge found defendant was undeterred
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by his multiple prior incarcerations and his "horrendous" criminal record
included several violent offenses. Further, the judge applied aggravating factor
nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence, based on defendant's
extensive criminal history. Additionally, the judge applied aggravating factor
thirteen, N.J.S.A. 2C:44-1(a)(13), because defendant used a stolen motor vehicle
in the course of committing a theft. Because the judge found no mitigating
factors, he concluded that the aggravating factors clearly outweighed the
mitigating factors.
The judge imposed the maximum sentences on both counts. He sentenced
defendant to a ten-year term with a five-year period of parole ineligibility on
count five and a five-year term with a two-and-a-half-year period of parole
ineligibility on count four. The judge specifically found consecutive sentences
were warranted under a Yarbough analysis.
Having reviewed the record, we reject defendant's argument that the
sentencing judge failed to engage in a proper analysis under Yarbough. The
judge determined the sentences on these counts would run consecutively, noting
that there were "two separate crimes, two separate victims, fully independent of
one another." The judge did not abuse his discretion in ordering the sentences
on counts four and five to run consecutively.
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IX.
Defendant next argues, and the State concedes, the judgment of conviction
ordering payment of restitution should be vacated. The State agrees the $197
taken from Fleites was returned to her. Thus, Fleites suffered no loss and is not
entitled to restitution under N.J.S.A. 2C:43-3.
To the extent we have not addressed any of defendant's argument on
appeal, the arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed as to the convictions. Remanded to the trial court to consider
the sentence imposed under State v. Torres and to vacate defendant's payment
of restitution. We do not retain jurisdiction.
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