STATE OF NEW JERSEY VS. MURAD H. BEYAH (13-02-0478, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-1037-14T4
STATE OF NEW JERSEY,
Plaintiff–Respondent,
v.
MURAD H. BEYAH,
Defendant–Appellant.
_____________________________
Submitted September 14, 2016 – Decided August 31, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 13-02-0478.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant, a convicted sex offender, was charged with
violating Megan's Law by failing to register as a sex offender, a
crime of the third-degree, N.J.S.A. 2C:7-2(c)(3). A jury found
him guilty after a three-day trial in April 2014 and defendant was
sentenced to four years of imprisonment, plus applicable fines and
penalties. Defendant now appeals, asserting several trial errors.
For the reasons that follow, we affirm.
I.
The record shows that, in 1986, defendant was convicted of
rape and sodomy in New York, which triggered the Megan's Law
registration requirements. Upon his release from prison after
serving a twenty-five-year sentence for the sex offenses,
defendant indicated he was moving to New Jersey. About two years
after moving to Newark, he contacted the local police department
about registering. However, upon meeting with a Newark detective,
defendant refused to comply with the registration requirements and
was subsequently indicted for failing to register.
At trial, the State presented three witnesses: Essex County
Prosecutor's Office Detective Sabrina Howard, who produced a
certified copy of defendant's March 13, 1986 New York convictions
for first-degree sodomy and first-degree rape; Tracy Nelson, the
Offender Rehabilitation Coordinator at Bare Hill Correctional
Facility in New York where defendant was incarcerated, who was
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responsible for coordinating defendant's completion of his sex
offender registration paperwork upon his release from prison; and
Newark Police Department Detective Miguel Aviles, with whom
defendant met in 2012 in connection with registering in New Jersey
as a sex offender. Defendant did not testify. Through defense
counsel's examination of the witnesses and arguments to the jury,
defendant maintained that he did not "knowingly" fail to register.
Nelson testified that she first met with defendant on July
21, 2010, before he was released from the Bare Hill Correctional
Facility in Malone, New York, in order to complete his sex offender
registration paperwork. Nelson testified she placed the six-page
New York State Sex Offender Registration Form on the table between
herself and defendant so that he could read along while she read
the form to him line-by-line. The form notified defendant that,
among other things, upon his release from custody, he was obligated
to:
[N]umber one, . . . complete a sex offender
registration form to register with the
Division of Criminal Justice Services, DCJS
. . . [in] Albany, New York . . . fifteen days
prior to your release from a state or local
correctional facility or upon the imposition
of a probation sentence to verify your
intended home address. The completion of this
form and its submission to DCJS satisfies your
initial obligation to register and verify your
intended home address.
Number two, . . . notify DCJS in writing
of any change of home address no later than
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ten days after your move. Note, change of
address forms are available at your local law
enforcement agency, parole or probation
office, or from DCJS. If you move to another
state you must register as a sex offender
within ten days of establishing residence.
. . . .
Number four, . . . verify your home
address once a year for the duration of your
registration through the return of a signed
Address Verification Form to DCJS within ten
days of its receipt.
The form also advised defendant that he "may be requested to
provide fingerprints, a photograph or other pertinent information
found necessary for compliance with this act."
After Nelson read the form to defendant on July 21, 2010,
defendant refused to sign the form. Nelson read the form to
defendant again on July 22 and 26, 2010. On July 22, 2010,
defendant was released from prison. Although defendant again
refused to sign the form, he was given a copy of the form with his
release papers. However, on July 26, 2010, defendant initialed
the form in four places and signed the form but wrote "[u]nder
protest" next to his initials and signature. Defendant signed the
form below a provision stating "I understand I have a duty to
register and my duties were explained to me." On July 26,
defendant also provided "South 19th Street, Newark, New Jersey"
as his residence address upon his release.
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On cross-examination, Nelson acknowledged that she did not
attempt to ascertain whether defendant had a hearing problem
because he gave no indication that he could not hear. Nelson also
testified that because defendant refused to sign the form on July
22, 2010, rather than being released, he was arrested at the
facility by the local police and transported to the county jail.
When defendant was ultimately released from custody in New York
on July 26, 2010, he left the facility with his family.
It is unclear when defendant took up residence in New Jersey.
However, as of July 31, 2010, defendant registered for a New Jersey
driver's license using the South 19th Street address in Newark as
his residence. On September 11, 2012, defendant contacted Aviles
via telephone to make an appointment to register as a sex offender
in the State of New Jersey. Aviles was a sixteen-year veteran of
the Newark Police Department and had been assigned to the Special
Victims Unit with responsibility for completing Megan's Law
registration forms since 2006. Aviles instructed defendant to
come to his office on December 6, 2012, to complete his sex
offender registration. Aviles explained that the delay in
scheduling an appointment was not uncommon due to the understaffing
of the Special Victims Unit and the high volume of sex offenders
residing in Newark.
5 A-1037-14T4
When defendant arrived for his appointment on December 6,
2012, he verified and signed the New Jersey Sex Offender
Registration Form (Registration Form) containing his pedigree
information. On the Registration Form, defendant's address was
listed as South 19th Street, Basement, Newark, New Jersey, and
defendant verified that he had been living at the South 19th Street
address since 2010. In addition to the Registration Form,
defendant was instructed to complete the State of New Jersey
Acknowledgment of Duty to Register, Re-Register, and Verify
Address Form (Acknowledgement Form).
The Acknowledgement Form informs registrants that, under
Megan's Law, they are required to register and verify their
addresses with their local or state police in the municipality
where they reside and failure to do so is a violation of Megan's
Law and is punishable by up to five years in state prison. The
Acknowledgement Form also contains eight paragraphs, each of which
states a duty or limitation imposed on the registrant. Beside
each paragraph, the registrant is required to sign or initial the
Acknowledgement Form.
In addition to giving defendant a chance to read the
Acknowledgment Form himself, Aviles read the form in its entirety
out loud to defendant and informed defendant that he was required
to sign or initial after each paragraph. Aviles testified that
6 A-1037-14T4
he had no indication from defendant that he could not hear what
he was being told or that he could not write. Defendant initialed
paragraphs one through six, and signed the form on the signature
line at the bottom of the form, but refused to initial paragraphs
seven and eight, prompting Aviles to write "[r]efused" next to
those two paragraphs. Paragraph Seven of the Acknowledgement Form
stated:
I understand that I must register with the
chief law enforcement officer of the
municipality in which I intend to reside
within 48 hours of my release from this
institution. I understand that I may be
charged with failure to register or re-
register, a third-degree offense, as required
by law.
Paragraph Eight of the Acknowledgement Form stated:
I understand that if I remain offense-free for
15 years from the date of conviction or
release from prison, whichever is later, I may
apply to the Superior Court to be relieved of
my obligation to register, unless I have more
than one sex offense or if any of the offenses
were [A]ggravated [S]exual [A]ssault or
[S]exual [A]ssault.
In addition to notifying defendant that he was required to
sign or initial after paragraphs seven and eight, Aviles informed
defendant that he was required to submit to fingerprinting and
photographing as part of the registration process. However,
defendant refused despite Aviles pleading with him to submit to
fingerprinting and photographing and warning him that his failure
7 A-1037-14T4
to do so would result in his arrest. Defendant again refused to
comply and was placed under arrest.
At the conclusion of the State's case, defendant moved for a
judgment of acquittal pursuant to R. 3:18-1, which the court
denied. Following the guilty verdict, defendant moved for a new
trial pursuant to R. 3:20-1, which was also denied by the court.
This appeal followed.
On appeal, defendant raises the following points for our
consideration:
POINT I - THE TRIAL COURT ADMITTED IMPROPER
LAY OPINION TESTIMONY ON THE ULTIMATE FACTUAL
ISSUE.
POINT II - THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW
TRIAL MOTIONS
POINT III - DEFENDANT WAS PREJUDICED BY THE
ADMISSION OF INADMISSIBLE "OTHER CRIMES"
EVIDENCE.
POINT IV - THE PROSECUTOR MADE IMPROPER
COMMENTS IN HIS SUMMATION.
II.
For the first time on appeal, defendant argues in Point One
that the trial court admitted improper lay opinion testimony on
the ultimate factual issue, namely, whether defendant failed to
register as a sex offender. Specifically, defendant asserts that
Detective Aviles, who was not offered as an expert witness, was
permitted to offer his opinion that defendant "hasn't truly
8 A-1037-14T4
registered[.]" According to defendant, Detective Aviles' opinion
was improper "because it usurped the province of the jury," by
expressing an "opinion as to [d]efendant's guilt" and "[s]uch
testimony is inadmissible when offered by any lay or expert
witness." Defendant argues further that "as the opinion of a
person engaged in law enforcement," the "prejudicial effect" of
Detective Aviles' "improper opinion was enhanced."
As defense counsel did not object, we review defendant's
argument pursuant to the plain error standard. R. 2:10-2. Under
that standard, a conviction will be reversed only if the error was
"clearly capable of producing an unjust result[,]" that is, if it
was "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. Taffaro, 195 N.J. 442, 454 (2008) (citation
omitted). Defendant must prove that the error was clear and
obvious and that it affected his substantial rights. State v.
Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S.
Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other
grounds, State v. Boretsky, 186 N.J. 271, 284 (2006). A
defendant's failure to object leads to the reasonable inference
that the issue was not significant in the context of the trial.
State v. Macon, 57 N.J. 325, 333 (1971).
N.J.R.E. 701 provides:
9 A-1037-14T4
If 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 perception of the
witness and (b) will assist in understanding
the witness' testimony or in determining a
fact in issue.
"Lay opinion testimony, therefore, when offered either in civil
litigation or in criminal prosecutions, can only be admitted if
it falls within the narrow bounds of testimony that is based on
the perception of the witness and that will assist the jury in
performing its function." State v. McLean, 205 N.J. 438, 456
(2011). In addition, N.J.R.E. 704 permits the admission of
testimony in the form of an opinion, which "embraces an ultimate
issue to be decided by the trier of fact."
During Detective Aviles' testimony, the following exchange
occurred:
Q: Did you . . . say anything to him when he
wouldn't give the prints, take a photograph,
sign it, or [sign or initial paragraphs] seven
and eight?
A: Yes. I explained to [defendant] that his
refusal to sign could result in his arrest.
And I pleaded with [defendant] to please sign
and initial, because I didn't see a reason for
him not to as this information was being given
to him for informational purposes. It wasn't
an agreement between me and him. It was simply
something that was required to be done.
Q: And he still did not oblige; is that
correct?
A: Yes.
10 A-1037-14T4
Q: So he hasn't truly registered for this
December 6, 2012 register form; is that
correct?
A: Correct.
As an eight-year veteran of the Special Victims Unit,
Detective Aviles' lay opinion testimony on the sex offender
registration process and its requirements was appropriate. His
testimony comports with N.J.R.E. 701 as it was based on his
personal observations of defendant's actions during the
registration process and would assist in understanding his
testimony and determining a fact in issue. Further, Detective
Aviles did not opine on whether defendant was guilty of the charged
offense as the State was required to prove that defendant
"knowingly" failed to register as a sex offender as one of the
elements of the offense. N.J.S.A. 2C:7-2.
Even if Detective Aviles' testimony was error, it lacked the
capacity to bring about an unjust result in light of the
overwhelming evidence of defendant's guilt. Clearly, defendant's
actions fell short of the requirements delineated in the
Acknowledgement Form for sex offender registration. Further, the
fact that defendant was admittedly living in Newark since July
2010, but did not attempt to register until September 2012, is
itself sufficient evidence of a violation of the requirements of
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Megan's Law, which mandates registration within ten days of moving
into the state.
III.
We turn next to Point Two in which defendant argues that the
court erred in denying his judgment of acquittal and new trial
motions. At the conclusion of the State's case, defendant moved
for a judgment of acquittal pursuant to R. 3:18-1, arguing the
State failed to prove an element of the crime, namely, the
requisite "knowing" mental state. Defendant also moved for a new
trial prior to his sentencing based on the State's "failure to
prove a knowing violation[,]" and on what defense counsel
characterized as the prosecutor's "obscene gesture during his
summation." On that basis, defendant argues that his conviction
constituted a miscarriage of justice, entitling him to a new trial.
A court shall enter an order for a judgment of acquittal only
"if the evidence is insufficient to warrant a conviction." R.
3:18-1. The standard to be applied in determining a motion for a
judgment of acquittal at the conclusion of the State's case is set
forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):
[T]he question the trial judge must determine
is whether, viewing the State's evidence in
its entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a
12 A-1037-14T4
reasonable jury could find guilt of the charge
beyond a reasonable doubt.
[Ibid.]
Under Rule 3:18-1, the trial judge "'is not concerned with
the worth, nature or extent (beyond a scintilla) of the evidence,
but only with its existence, viewed most favorably to the State.'"
State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v.
Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied,
67 N.J. 72 (1975)). "If the evidence satisfies that standard, the
motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
On appeal, we apply the same standard. State v. Bunch, 180 N.J.
534, 548-49 (2004); State v. Josephs, 174 N.J. 44, 81-82 (2002),
certif. denied, 188 N.J. 579 (2006).
A motion for a new trial is governed by Rule 3:20-1, which
directs that a trial judge may not set aside a jury verdict as
against the weight of the evidence "unless, having given due regard
to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a
manifest denial of justice under the law." Defendant's argument
is governed by Rule 2:10-1, which directs that a trial court's
ruling on a motion for a new trial "shall not be reversed unless
it clearly appears that there was a miscarriage of justice under
the law." We have stated that,
13 A-1037-14T4
[A] motion for a new trial is addressed to the
sound discretion of the trial judge, and the
exercise of that discretion will not be
interfered with on appeal unless a clear abuse
has been shown. Our scope of review is limited
to a determination of whether the findings
made by the trial court could reasonably have
been reached on sufficient credible evidence
present in the record. Moreover, we will give
deference to the trial judge's feel for the
case since he presided over [it] . . . and had
the opportunity to observe and hear the
witnesses as they testified.
[State v. Brooks, 366 N.J. Super. 447, 454
(App. Div. 2004) (alterations in original)
(citation omitted).]
Defendant argues that the court erred in denying his judgment
of acquittal motion because fingerprinting and photographing are
not registration requirements specified in N.J.S.A. 2C:7-2(c), and
paragraphs seven and eight of the Acknowledgement Form did not
apply to him. Consequently, defendant asserts that his conduct
did not constitute a "knowing" violation of the statute. In the
alternative, defendant argues that his fingerprints and photograph
were already on file by virtue of his past convictions and driver's
license, respectively.
Defendant's argument is specious. Under Megan's Law, "[a]
person [who is] required to register . . . shall do so on forms
to be provided by the designated registering agency." N.J.S.A.
2C:7-2(c). N.J.S.A. 2C:7-4(b) further clarifies that "[t]he
[registration] form . . . shall include . . . fingerprints and a
14 A-1037-14T4
brief description of the crime or crimes for which registration
is required[.]" Additionally, the Attorney General may require
information other than an offender's address as part of the
verification process, and such information may include
photographing. N.J.S.A. 2C:7-2(e); see Attorney General
Guidelines for Law Enforcement for the Implementation of Sex
Offender Registration and Community Notification Laws 29 (Feb.
2007), http://www.nj.gov/oag/dcj/megan/meganguidelines-2-07.pdf.
Furthermore, our Supreme Court has held that registration
under Megan's Law for those no longer in custody requires
"appearance at a local police station for fingerprinting,
photographing, and providing information for a registration form
that will include a physical description, the offense involved,
home address, employment or school address, vehicle used, and
license plate number." Doe v. Poritz, 142 N.J. 1, 21 (1995)
(citing N.J.S.A. 2C:7-4(1)-(2)); see also In re Registrant J.G.,
169 N.J. 304, 319 (2001). Poritz specifically notes that the
registration requirements also apply to sex offenders convicted
elsewhere who relocate to the state. Ibid.
Thus, contrary to defendant's assertion, fingerprinting and
photographing are clearly required as part of the registration
process. Moreover, the obligation to provide fingerprints and
photographs is not excused for registrants whose information is
15 A-1037-14T4
already on file as undoubtedly would be the case for all previously
convicted felons. Further, although paragraphs seven and eight
of the Acknowledgement Form did not apply to defendant, under
Megan's Law and the Attorney General's Guidelines, an offender's
failure to complete the registration form as required by the
registering agency may form the basis for a failure to register
charge.
Here, a reasonable jury could infer that defendant acted
knowingly as required under N.J.S.A. 2C:7-2.
A person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his
conduct is of that nature, or that such
circumstances exist, or he is aware of a
high probability of their existence. A
person acts knowingly with respect to a
result of his conduct if he is aware that it
is practically certain that his conduct will
cause such a result.
[N.J.S.A. 2C:2-2(b)(2).]
Knowledge may be reasonably inferred from the circumstances. See
Spivey, supra, 179 N.J. at 237.
Aviles warned defendant that his failure to initial or sign
the Acknowledgment Form in its entirety and submit to
fingerprinting and photographing would lead to his arrest.
Defendant had similar conversations with Nelson and had been
arrested before for failing to comply with similar sex offender
registration requirements in New York. Therefore, viewing the
16 A-1037-14T4
evidence adduced at trial in the light most favorable to the State,
a reasonable jury could infer that defendant's failure to register
as a sex offender was knowing and thereby find proof of guilt
beyond a reasonable doubt. Likewise, defendant's argument that
he is entitled to a new trial based on the State's failure to
prove a knowing violation of the statute must fail. Defendant's
assertion that the prosecutor's "obscene gesture during his
summation" amounted to a manifest denial of justice entitling him
to a new trial will be addressed later in this opinion.
IV.
Defendant argues in Point Three that he was prejudiced by the
admission of "other crimes" evidence. Specifically, defendant
asserts that "the admission of the detailed testimony regarding
[his] initial refusal to sign" the registration forms in New York,
and "his later signing 'under protest,' constituted inadmissible
"other crimes" evidence which denied him a fair trial." According
to defendant, the admission of the evidence "was completely
gratuitous, was of no probative value to the issues in dispute,
and was designed simply to cause the jury to think of [d]efendant
as a bad person in general." Because defendant failed to object
at trial, we again view this contention through the prism of the
plain error standard.
N.J.R.E. 404(b) provides in pertinent part:
17 A-1037-14T4
[E]vidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of
a person in order to show that such person
acted in conformity therewith. Such evidence
may be admitted for other purposes, such as
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.
In general, other-crime evidence is not admissible to prove guilt
by criminal predisposition. N.J.R.E. 404(b); see also State v.
Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove
one crime by proving another.") (citation omitted). The rationale
for this is that a jury, aware of such evidence, may be tempted
to convict, not by reason of proof, but by reason of perception.
State v. Gibbons, 105 N.J. 67, 77 (1987).
"The threshold determination under Rule 404(b) is whether the
evidence relates to 'other crimes,' and thus is subject to
continued analysis under Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the
evidence rules relating to relevancy, most importantly Rule 403."
State v. Rose, 206 N.J. 141, 179 (2011). An uncharged offense is
intrinsic evidence of a charged crime if: (1) "it 'directly proves'
the charged offense[,]" or (2) the uncharged act was "performed
contemporaneously with the charged crime" and it "facilitate[d]
the commission of the charged crime." Id. at 180 (citation
omitted). Under this analysis, "background" or "completes the
18 A-1037-14T4
story" evidence is admissible as intrinsic evidence "under the
inextricably intertwined test." Ibid.
We are satisfied that the evidence was admitted for a
specific, non-propensity purpose, namely, to establish an element
of the crime with which defendant was charged by showing that
defendant's failure to register under Megan's Law was "knowing."
Indeed, defendant himself acknowledges that "[t]he purpose of Ms.
Nelson's testimony was to establish that, at the time of his
release from prison in New York, [d]efendant [was] advised that
if he moved to another state[,] he was required to register as a
sex offender in that state." As such, we conclude the evidence
was not impermissible other-crime evidence and its admission was
not erroneous. Furthermore, under the plain error standard, an
unchallenged error merits reversal only if it is "clearly capable
of producing an unjust result." R. 2:10-2. Here, given the
substantial proofs offered by the State during trial, the admission
of the challenged evidence does not undermine our confidence in
the outcome.
V.
Finally, in Point Four, defendant argues that the prosecutor
committed prosecutorial misconduct during summation by (1) making
"an obscene gesture" of "moving his hand under his chin" and
attributing the gesture to defendant while referencing defendant's
19 A-1037-14T4
refusal to sign the registration forms in New York; (2) implying
that defendant's past non-compliance in New York in 2010 continued
in 2012 and "improperly painted [d]efendant" as a person who was
likely to disregard his obligation to register; and (3) "inferred
that [d]efendant had an obligation to prove his innocence" by
arguing that there had been no testimony regarding defendant's
ability to write or defendant having mental health issues.
Defendant objected to the hand gesture and requested a mistrial,
which was denied, but did not object to the latter comments urged
now on appeal, thereby subjecting them to plain error scrutiny.
For prosecutorial conduct "[t]o justify reversal, the
prosecutor's conduct must have been clearly and unmistakably
improper," and "so egregious as to deprive defendant of a fair
trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citation
omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.
2d 817 (2008). In reviewing the trial record for reversible error,
an appellate court "must consider several factors, including
whether 'timely and proper objections' were raised, whether the
offending remarks 'were withdrawn promptly,' and whether the trial
court struck the remarks and provided appropriate instructions to
the jury[.]" State v. Smith, 212 N.J. 365, 403 (2012) (quoting
State v. Frost, 158 N.J. 76, 83 (1999)), cert. denied, 568 U.S.
1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
20 A-1037-14T4
While prosecutors "are expected to make vigorous and forceful
closing arguments to juries[,]" Frost, supra, 158 N.J. at 82
(citation omitted), "prosecutors should not make inaccurate legal
or factual assertions during a trial" and "they must confine their
comments to evidence revealed during the trial and reasonable
inferences to be drawn from that evidence." State v. Mahoney, 188
N.J. 359, 376 (2006) (quoting State v. Smith, 167 N.J. 158, 178
(2001), cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d
368 (2006). "Additionally, an appellate court will consider
whether the offending remarks were prompted by comments in the
summation of defense counsel." Smith, supra, 212 N.J. at 403-04
(citation omitted). "A prosecutor's otherwise prejudicial
arguments may be deemed harmless if made in response to defense
arguments." State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.),
certif. denied, 208 N.J. 335 (2011).
If, after reviewing the prosecutor's conduct, "it is apparent
to the appellate court that the remarks were sufficiently
egregious, a new trial is appropriate, even in the face of
overwhelming evidence that a defendant may, in fact, be guilty."
Smith, supra, 212 N.J. at 404. "In contrast, if the prosecutorial
remarks were not 'so egregious that [they] deprived the defendant
of a fair trial[,]' reversal is inappropriate." Ibid. (quoting
Frost, supra, 158 N.J. at 83).
21 A-1037-14T4
After defense counsel objected to the hand gesture, this
sidebar colloquy ensued:
[DEFENSE COUNSEL]: I'd like to ask for a
mistrial. I don't know if the [c]ourt saw it,
but the prosecutor made a gesture which means
fuck you . . . Italian gesture under his chin
when he said, "he didn't sign it." I move for
mistrial. I have no idea why the prosecutor
would do that, implied my client said, "fuck
you," when that wasn't part of the evidence
of the case.
[PROSECUTOR]: I'm not saying he said, "fuck
you." I'm saying he was noncompliant, in
essence did not cooperate.
[COURT]: Does not necessarily mean that
. . . we're not going to get into gestures.
[PROSECUTOR]: I don't believe it requires a
mistrial. What I'm showing is telling the
jury he was not complying with this.
[COURT]: I didn't see the gesture, . . . .
[PROSECUTOR]: I didn't stick a middle finger
up . . . .
[COURT]: For the record, I gather, the
[d]efense describing what was apparently the
gesture of taking one's fingers under the
chin, flicking them forward, I gather.
[PROSECUTOR]: That's right.
[THE COURT]: I'm going to deny the
application for a mistrial, ask the jury [to]
ignore the prior gesture.
The court then instructed the jury to "disregard the motion, the
gesture of the [p]rosecutor."
22 A-1037-14T4
While the gesture may have been ill-advised, we conclude that
it did not deprive defendant of a fair trial. An improper
"fleeting and isolated" remark [or gesture] in summation is not
grounds for reversal. State v. Watson, 224 N.J. Super. 354, 362
(App. Div.), certif. denied, 111 N.J. 620 (1988), cert. denied,
488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988). Moreover,
the court's immediate instruction to the jury to disregard the
gesture obviated the potential for prejudice. We therefore discern
no basis to conclude that the judge's exercise of discretion in
denying the mistrial motion and providing the curative instruction
constituted "an abuse of discretion that result[ed] in a manifest
injustice." State v. Smith, 224 N.J. 36, 47 (2016) (citation
omitted).
We also reject defendant's contention that the prosecutor's
comments referencing defendant's past refusal to sign the New York
registration form and ultimately signing under protest was
improper comment. On the contrary, the comments were confined to
evidence revealed during the trial and reasonable inferences to
be drawn from that evidence. We have already concluded that the
admission of this evidence was proper. Moreover, the comments
were responsive to defense counsel's extensive discussion during
his summation of defendant's interaction with Nelson during the
New York registration process.
23 A-1037-14T4
Likewise, we reject defendant's assertion that the prosecutor
impermissibly inferred that defendant must prove his innocence,
thereby shifting the burden of proof to defendant, by stating in
summation:
And there's been no testimony, ladies and
gentlemen, about whether the [d]efendant can
write or anything like that. There's been no
testimony about mental health issues. You are
not to speculate about anything in this case.
You are to take the evidence and apply it to
the law.
A prosecutor may never suggest a shifting of the burden of
proof to defendant. See State v. Loftin, 146 N.J. 295, 389 (1996).
However, here, we do not interpret the prosecutor's remark as such
but rather a response to the following comments by defense counsel
in his summation:
So I would ask that you look at paragraph
two closely. And just for the average person,
not a person that may have a disability or
anything, would have trouble understanding.
The average person would have trouble
understanding that instruction.
. . . .
In New York Ms. Nelson went through the
form with him. Prior to going through the
form she didn't ascertain like how educated
he was, whether he could read or write. Now
I'll submit to you, yes, he can write. I'm
not trying to say oh, well, he was, you know,
he was completely oblivious to what's going
on. I'm talking about the process.
24 A-1037-14T4
In any event, any prejudice to defendant was undoubtedly cured by
the court's instruction to the jury that "[t]he burden of proving
each element of a charge beyond a reasonable doubt rests upon the
State and that burden never shifts to the [d]efendant."
Additionally, defense counsel failed to object to both of
these comments, suggesting that they were not overtly or unduly
prejudicial. Generally, when defense counsel fails to object to
purportedly improper remarks, "the remarks will not be deemed
prejudicial" as "[t]he failure to object suggests that defense
counsel did not believe the remarks were prejudicial at the time
they were made. The failure to object also deprives the court of
an opportunity to take curative action." State v. R.B., 183 N.J.
308, 333 (2005) (quoting Frost, supra, 158 N.J. at 82-84), certif.
denied, 205 N.J. 520 (2011).
Moreover, a prosecutor's improper remarks made during
summation can be cured so long as the trial court "clearly
instruct[s] the jury that the remarks made . . . were not evidence,
but argument." Smith, supra, 212 N.J. at 409. Here, in the
context of the entire summation and defense counsel's intense
attack on the registration process in New York, the prosecutor's
brief remarks did not deprive defendant of his fundamental right
to a fair trial. Moreover, defense counsel's failure to object
suggests that the remarks were not prejudicial, and any prejudice
25 A-1037-14T4
that arose was cured by the court's clear instructions to the jury
that the attorneys' "[a]rguments, statements, remarks" made in
summations were "not evidence and must not be treated as evidence."
Affirmed.
26 A-1037-14T4