STATE OF NEW JERSEY VS. FORREST THOMAS (10-07-1771, 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NOT FOR PUBLICATION WITHOUT THE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 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-4706-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FORREST THOMAS, a/k/a
MALIK FOREST, THOMAS
FORREST, FORREST MALIK,
FOREST THOMAS, and
TYRONE THOMAS,
Defendant-Appellant.
_______________________________
Submitted April 2, 2019 – Decided May 17, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-07-1771.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order entered by the Law Division on May 21,
2018, which denied his petition for post-conviction relief (PCR). We affirm.
I.
On July 23, 2010, an Essex County grand jury returned an indictment
charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); and
second-degree disturbing human remains, N.J.S.A. 2C:22-1(a)(1). The alleged
victim was Carol Spratt.
Defendant was tried before a jury and, at the trial, evidence was presented
which showed that in 2005, Spratt and her daughter Susan Rivas moved to an
apartment at New Community Gardens on Morris Avenue in Newark.
Defendant, who was Rivas's boyfriend, moved into the apartment with Spratt
and Rivas. Rivas died shortly thereafter, but defendant continued to reside in
the apartment with Spratt.
Spratt suffered from emphysema and required an oxygen tank at all times.
She also used a wheelchair and rarely left the apartment. Spratt claimed that at
times defendant stole her rent money and food stamps, and also engaged in
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abusive behavior. In January 2010, Spratt had defendant permanently banned
from the building. Despite the ban, defendant returned a few days later. He was
escorted out of the building and the building's manager told him he could return
that day to collect his belongings.
The State alleged that defendant returned to the apartment and killed
Spratt. According to the medical examiner, the perpetrator grabbed Spratt by
the wrists and compressed her neck with a significant, sustained force. That
force prevented Spratt from breathing, and stopped the flow of blood from her
heart to her head.
Defendant kept Spratt's dead body in the apartment for the next several
days. On January 14, 2010, defendant called the aide who had provided care to
Spratt, and told her that Spratt had fallen, broken her ribs, and was in the
hospital. The aide went to the apartment the next day. Defendant exited the
apartment, closed the door quickly behind him, and told the aide that Spratt was
"okay."
Defendant disposed of Spratt's body several days later. He placed the
body in two garbage bags, put the bags in a shopping cart, and covered the bags
with clothes and other items. At around 3:00 a.m. on January 18, 2010,
defendant exited the building pushing the shopping cart. On his way out,
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defendant told the security guard he had collected his possessions and would not
be around anymore.
Defendant discarded the body near a dumpster behind a building on South
Orange Avenue, and two scrap collectors discovered the body. The following
day, the building's superintendent saw a note on Spratt's door, which stated that
she should not be disturbed because she was tired and sleeping. Later that day,
defendant approached Spratt's neighbor and offered to sell him items from the
apartment. Defendant said Spratt had fallen, was in the hospital, and was
planning to move to Florida.
On January 20, 2010, investigators from the Essex County Prosecutor's
Office went to Spratt's building and spoke with the manager, who identified
Spratt from an autopsy photo. The investigators were proceeding to Spratt's
apartment, when they encountered defendant. He told them he was going to visit
Spratt at the hospital. He agreed to be interviewed.
At the police station, defendant was advised of his rights and provided a
statement. He claimed that he returned to the apartment on January 13 or 14,
2010, and found that Spratt had fallen. He claimed her oxygen cord was wound
around her neck and she was gasping for air.
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Defendant said he picked Spratt up, unwrapped the cord, and put her in
bed. Spratt allegedly stated that she was all right. Several hours later, defendant
found Spratt dead. He admitted that three days later, he placed Spratt's body in
two garbage bags, put the body in a shopping cart, and left her near the dumpster
where the body was found.
When the detectives left the interview room, defendant removed Spratt's
ATM and credit cards from his wallet and attempted to hide them behind the
molding in the interview room. Defendant's actions were recorded by the
surveillance system.
The jury found defendant guilty of murder and disturbing human remains.
The trial court thereafter sentenced defendant to life imprisonment for murder,
with sixty three and three-quarter years of parole ineligibility, pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant
to a concurrent ten-year term for disturbing human remains. Defendant appealed
from the judgment of conviction and argued:
POINT I
DAMAGING HEARSAY STATEMENTS BY THE
DECEDENT WERE IMPROPERLY ADMITTED
INTO EVIDENCE OVER OBJECTION. WHILE THE
DECEDENT'S STATEMENTS INDICATING
SOLELY HER STATE OF MIND – I.E., HER INTENT
TO HAVE [DEFENDANT] EVICTED – MAY HAVE
BEEN ADMISSIBLE UNDER THE "STATE OF
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MIND" HEARSAY EXCEPTION BECAUSE THEY
PROVIDED A MOTIVE TO KILL, HER
STATEMENTS DETAILING PRIOR BAD ACTS BY
DEFENDANT WERE PLAINLY SIMPLY
INADMISSABLE HEARSAY WHICH CLEARLY
TAINTED THE JURY'S DELIBERATIONS ON
GUILT.
POINT II
UNDER BOTH THE CONFRONTATION
GUARANTEES OF THE SIXTH AMENDMENT (AS
APPLIED TO THE STATES THROUGH THE DUE
PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT) AND THE STATE
CONSTITUTION, AS WELL AS UNDER OUR OWN
STATE EVIDENCE RULES, THE ADMISSION IN
THIS CASE, OF ONE MEDICAL EXAMINER'S
FINDINGS THROUGH THE TESTIMONY OF
ANOTHER MEDICAL EXAMINER WAS THE
MOST BASIC OF VIOLATIONS OF DEFENDANT'S
RIGHTS. (Not Raised Below)[.]
POINT III
WHEN THE JURORS REPORTED A DEADLOCK
ON THE MURDER COUNT, THE JUDGE WAS
OBLIGATED TO GIVE THE STATE v. CZACHOR[,
82 N.J. 392, 1980)] DEADLOCK INSTRUCTION TO
THEM. (Not Raised Below).
[State v. Thomas, No. A-2706-12 (App. Div. Aug. 31,
2015) (slip op. at 2) (footnote omitted).]
We rejected these arguments and affirmed defendant's convictions. Ibid. The
Supreme Court denied defendant's petition for certification. State v. Thomas,
223 N.J. 558 (2015).
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In January 2016, defendant filed a petition for PCR. Defendant was
assigned counsel who argued that: (1) PCR claims must be thoroughly
investigated by counsel; (2) the court has authority to order discovery on a
showing of good cause; (3) defendant was denied due process because he "was
improperly excluded from . . . trial court proceedings"; (4) defendant was denied
the "right to testify on his own behalf"; (5) defendant was denied a fair trial due
to prosecutorial misconduct; (6) defendant was denied the right of confrontation
by the admission of the medical examiner's findings through the testimony of
another medical examiner; (7) the trial judge improperly handled the jury's
questions and the response to the jury's reported deadlock; (8) defendant "was
denied the effective assistance of trial counsel"; (9) defendant was denied a fair
trial due to the cumulative effect of the errors complained of; (10) defendant
"was denied the effective assistance of appellate counsel"; (11) an evidentiary
hearing is required on his PCR petition; and (12) the claims in the petition are
not subject to any procedural bar.
On May 21, 2018, the PCR court filed an order denying relief. In an
accompanying opinion, the court stated that claims 3, 4, 5, 6, 7, and 9 were
barred by Rules 3:22-4 and 3:22-5 because they were raised or should have been
raised on defendant's direct appeal and the exceptions in Rule 3:22-4 did not
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apply. The court also found no merit in defendant's other claims, and determined
that defendant was not entitled to an evidentiary hearing on his petition. This
appeal followed.
On appeal, defendant's attorney argues:
POINT I
THE DEFENDANT WAS DENIED A COMPLETE
DEFENSE AS A RESULT OF INEFFECTIVE TRIAL
COUNSEL, WHO FAILED TO INVESTIGATE THE
CASE ADEQUATELY.
POINT II
THE PCR COURT ERRONEOUSLY APPLIED A
PROCEDURAL BAR TO DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE BECAUSE
HE HAD OFF THE RECORD COMMUNICATIONS
WITH THE TRIAL COURT AND THE
PROSECUTOR WITHOUT THE DEFENDANT AND
HE FAILED TO INFORM THE DEFENDANT
ABOUT THE NATURE OF THOSE
COMMUNICATIONS.
POINT IV
THE DEFENDANT WAS COERCED INTO
FORGOING HIS TESTIMONY DUE TO TRIAL
COUNSEL'S INEFFECTIVE REPRESENTATION.
POINT V
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO OBJECT TO EGREGIOUS MISCONDUCT BY
THE PROSECUTOR, AND APPELLATE COUNSEL
WAS INEFFECTIVE IN FAILING TO RAISE
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PROSECUTORIAL MISCONDUCT AS PLAIN
ERROR.
POINT VI
TRIAL COUNSEL WAS INEFFECTIVE BEAUSE HE
IMPROPERLY WAIVED THE DEFENDANT'S
RIGHT OF CONFRONTATION, PERMITTING THE
STATE TO PRODUCE RESULTS FROM THE
AUTOPY WITHOUT PRODUCING THE WITNESS
WHO PERFORMED THE AUTOPSY.
POINT VII
TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY CONSENTING TO AN
ERRONEOUS INSTRUCTION AND FAILING TO
OBJECT TO THE MANNER IN WHICH THE TRIAL
COURT RESPONDED TO JURY QUESTIONS.
POINT VIII
THE CUMULATION OF ERRORS BY TRIAL
COUNSEL AND APPELLATE COUNSEL
RESULTED IN A FUNDAMENTALLY UNFAIR
PROCESS.
POINT IX
THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
POINT X
THE DFENDANT IS ENTITLED TO DE NOVO
REVIEW AND NO DEFERENCE SHOULD BE
GIVEN TO THE ERRONEOUS CONCLUSION
BELOW. (Not Raised Below).
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II.
Defendant argues that the PCR court erred by finding that he was
procedurally barred under Rules 3:22-4 and 3:22-5 from raising claims he was
denied the effective assistance of trial and appellate counsel.
Before the PCR court defendant claimed that: (1) trial counsel failed to
object to the court's handling of a jury question, and appellate counsel should
have raised this issue on appeal; (2) trial counsel failed to object to the court's
response to the jury's reported deadlock; (3) trial counsel improperly excluded
him from certain proceedings; (4) trial counsel improperly denied defendant of
his right to testify on his own behalf; (5) counsel failed to object at trial to
alleged prosecutorial misconduct; and (6) counsel erred by failing to object to
the State proffering testimony about the autopsy from Dr. Roger Mitchell, rather
than Dr. John Stash, who performed the autopsy.
Defendant contends these claims of ineffective assistance of counsel could
not have been raised on direct appeal. However, we need not address defendant's
argument because the record is sufficient to address the merits of these claims
in this appeal.
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III.
As noted, defendant argues that he was denied the effective assistance of
trial and appellate counsel. We disagree.
To establish ineffective assistance of counsel, a defendant must satisfy the
two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984),
and later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the test, a defendant first "must show that counsel's performance was
deficient." Strickland, 466 U.S. at 687. Defendant must establish that counsel's
performance "fell below an objective standard of reasonableness" and "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687-88.
Defendant also must establish "that the deficient performance prejudiced
the defense." Id. at 687. To establish prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
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A. Spratt's Medical Records
Defendant argues that his trial attorney was deficient because he did not
obtain Spratt's medical records. Defendant contends the medical records would
have supported an argument that Spratt's death was the result of her extremely
poor medical condition, advanced age, and a possible accident.
Defendant argues that the medical records were vital to his argument that
the State failed to prove causation. He argues that the PCR court erred by
finding that his attorney engaged in a reasonable strategy when he elected not to
obtain the medical records.
We need not consider whether counsel reasonably elected, as a matter of
trial strategy, not to obtain Spratt's medical records. Assuming that counsel
erred by failing to obtain these records, defendant did not establish that he was
prejudiced by counsel's error.
Spratt's medical records showed that she was suffering from chronic
obstructive pulmonary disease, and required an oxygen tank to assist her
breathing. At trial, Mitchell testified that the autopsy showed Spratt's neck had
been compressed with a significant, sustained force, which stopped the flow of
blood between her heart and head and caused her death. Defendant has not
shown that if Spratt's medical records had been introduced into evidence, they
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would have led the jury to conclude that Spratt died as the result of some other
cause.
On appeal, defendant argues that the jury should have been permitted to
consider whether Spratt's medical conditions were an "alternative theory of
causation." However, in support of his PCR petition, defendant did not present
an affidavit or certification of a qualified medical professional, with an opinion
that Spratt died due to her medical conditions, rather than a neck compression
resulting from the application of a significant, sustained force.
B. Exclusion of Defendant from Trial Proceedings
Defendant argues that his trial counsel was ineffective because counsel
purportedly participated in conferences held in the judge's chambers without
defendant. Defendant has not, however, presented any evidence that such
conferences took place or what may have occurred during these conferences.
Moreover, defendant's right to be present at trial only extends to the "'critical
stage[s]' of the trial" court proceedings. See State v. Reevey, 417 N.J. Super.
134, 149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363
(App. Div. 1991), aff'd, 131 N.J. 84 (1993)). Defendant has not shown that the
alleged conferences were critical stages of his trial proceedings. He also has not
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shown that his failure to be present at any in-chambers conference interfered
with his right to maintain a defense.
C. Defendant's Decision Not to Testify at Trial
Defendant argues that his trial attorney coerced him to decide against
testifying at trial. The record does not support defendant's argument. At trial,
the judge questioned defendant on the record concerning his decision not to
testify:
THE COURT: Mr. Thomas, [your attorney]
indicated to me you're electing not to testify in this case.
Correct?
THE DEFENDANT: Yes.
THE COURT: Have you had ample opportunity to
confer with [your attorney] regarding that?
THE DEFENDANT: Yes.
THE COURT: And based upon your conversations
with him and your full and complete consultation with
him, you've come to the decision not to testify. Is that
correct.
THE DEFENDANT: Yes, it is.
....
THE COURT: Nobody's forced or coerced or
threatened you to do this; you're doing this of you own
free will?
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THE DEFENDANT: Yes.
THE COURT: You've been represented by [your
attorney] throughout these proceedings. Are you
satisfied with his representation in all respects?
THE DEFENDANT: Yes.
As the record shows, defendant never asserted his attorney had coerced
him to decide against testifying. Defendant also told the judge that he was
satisfied with his attorney's representation "in all respects[.]" Thus, the record
provides no support to defendant's claim that his attorney coerced him to decide
not to testify.
D. Alleged Prosecutorial Misconduct
Defendant claims his trial attorney erred by failing to object to alleged
prosecutorial misconduct. He also contends appellate counsel was deficient
because counsel did not raise prosecutorial misconduct on appeal.
Defendant asserts that after certain witnesses answered questions, the
prosecutor stated "okay," thereby suggesting that the prosecutor affirmed or
concurred in the testimony. Defense counsel objected and the judge cautioned
the prosecutor. Defendant contends the prosecutor continued to makes these
improper comments.
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Defendant also asserts that at one point, the prosecutor picked up items
from counsel's table and threw them in the air, purportedly out of "disdain and
disgust." In addition, defendant states that the trial judge referred at some point
to the prosecutor as "incorrigible." It is not clear from the record what prompted
the judge to make that comment.
Defendant's attorney may have erred by failing to repeat his objections to
the prosecutor's comments, and by failing to object when the prosecutor threw
certain items in the air. However, defendant has not shown the result here
probably would have been different if his attorney had raised these objections.
Defendant also has not shown that his appeal would have been decided
differently if appellate counsel had raised the alleged prosecutorial misconduct
on appeal.
E. Failure to Object to Testimony Regarding Autopsy
Defendant further argues that his trial attorney erred by failing to object
to Mitchell's testimony about the autopsy report on the ground that Mitchell did
not perform the autopsy. In defendant's direct appeal, we held that defendant
had waived his Confrontation Clause objection to Dr. Mitchell's testimony
because he did not raise the objection at trial. Thomas, slip op. at 30.
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In our opinion, we noted that on cross-examination, defense counsel had
"attempted to obtain helpful testimony" from Mitchell that Spratt may have
choked on her oxygen tube. Ibid. We also pointed out that defense counsel
attempted to show that because Mitchell did not perform the autopsy, his
testimony might not be reliable. Ibid. Defendant's attorney made the same point
in his summation. Ibid.We stated that, "Defendant made a clear choice to pursue a trial strategy
of attempting to cast doubt on Mitchell's conclusions by focusing the jury's
attention on the fact he did not perform the autopsy in this case." Id. at 30-31.
We held that under the circumstances, defendant could not claim that Mitchell's
testimony deprived him of his right to confrontation, and counsel's failure to
object was not an error "clearly capable of producing an unjust result." Ibid.
(quoting State v. Williams, 219 N.J. 89, 99 (2014)).
For essentially the same reasons, we reject defendant's claim that he was
denied the effective assistance of counsel because his attorney failed to object
to Mitchell's testimony on Confrontation Clause grounds. Defense counsel
pursued a reasonable trial strategy of attempting to discredit Mitchell's
testimony because he did not perform the autopsy. Moreover, it is reasonable
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to assume that if counsel had objected to Mitchell's testimony, the State would
have presented testimony from the doctor who performed the autopsy.
F. Failure to Object to the Court's Handling of Jury Question
Defendant asserts his trial attorney was deficient because he consented to
an erroneous response to a question that the jury sent to the court during
deliberations. The jury asked whether the shopping cart introduced into
evidence was "the same cart used to hold the body." After consulting with
counsel, the judge told the jury that the answer to the question was "Yes."
Another note from the jury followed, and it included additional questions
regarding the shopping cart.
Defense counsel then asserted that the judge should not have responded
"Yes" to the previous question. The judge agreed and instructed the jury that
his previous answer was not complete. The judge stated
The answer is "yes" but . . . I can't answer
questions . . . you pose to me because they're factual
questions.
....
[Y]ou have to listen to each other . . . and reach a
decision as to whether or not [the] evidence . . . or lack
of evidence . . . is sufficient information for you to
make a decision as to guilt or innocence, fairly and
impartially.
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On appeal, defendant argues that the judge's instruction was confusing and
erroneous because the answer to the jury's initial question should not have been
"Yes," and the additional instruction was contradictory. He contends that
because the instruction would have a prejudicial impact on the jury's findings of
fact, his trial attorney should have raised a timely and specific objection.
Defendant also contends the instruction improperly shifted the burden of proof
to defendant to produce evidence of his innocence.
Again, we disagree. It appears the judge may have erred by responding
to the jury's first question by stating, "Yes." It seems that the assistant
prosecutor and the judge also assumed that the shopping cart in evidence was
the same shopping cart used to move Spratt's body. In any event, defendant has
not shown that counsel's error prejudiced the defense. As noted, the judge
corrected the mistake by providing a timely instruction.
Moreover, the amended instruction did not shift the burden of proof to
defendant. Defendant contends the instruction was in conflict with the earlier
instruction in which the judge told the jurors that the State had the burden of
proof on all elements of the charged offenses. The judge's instruction did not
relieve the State of its burden of proof, which was clearly described in the court's
final instructions.
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G. Failure to Object to Judge's Response to Jury's Alleged Deadlock
In defendant's direct appeal, he argued that the judge erred by failing to
give the jury a Czachor charge after the jury allegedly reported that it was
deadlocked. Thomas, slip op. at 32. We noted that defendant had not objected
to the charge that the trial court provided. Ibid.We pointed out that in Czachor, the Court approved an instruction to be
used when a jury reports it is deadlocked, which directs the jury to continue
deliberating but reminds the jurors they have an obligation to hold onto honest
convictions. Id. at 34-35 (citing Czachor, 82 N.J. at 405 n.4). We reviewed the
trial record and noted that the judge did not view the note from the jury as
reporting "a true deadlock." Id. at 35. We stated that "[t]he court and counsel
reasonably determined the jury could not be truly deadlocked after deliberating
for two non-consecutive hours after hearing days of testimony in a murder trial."
Id. at 35-36.
We held that there was "nothing coercive about the trial court's
supplemental instructions" and the judge "did not violate the core holding of
Czachor[.]" Id. at 36. We stated the charge was not meant to address a jury
deadlock, "but was more along the lines of a reminder to the jury to cooperate
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and continue deliberating." Ibid. (citing State v. Adim, 410 N.J. Super. 410, 425
(App. Div. 2009)). We held that the court's instructions were proper. Ibid.In this appeal, defendant asserts that his trial attorney erred by failing to
object to the instructions. We disagree. The judge properly instructed the jury
to continue its deliberations, and there was no basis for an objection. Defendant
has not shown that counsel erred by failing to object or that he was prejudiced
by the manner in which counsel handled the issue.
We therefore conclude that defendant failed to establish that he was
denied the effective assistance of trial or appellate counsel.
IV.
Defendant argues that even if the errors he cites did not individually
constitute reversible error, in the aggregate, they denied him of his constitutional
right to a fair trial or required an evidentiary hearing. Our Supreme Court has
held that "even when an individual error or series of errors does not rise to
reversible error, when considered in combination, their cumulative effect can
cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193
N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J. 448, 540 (2001)). The
cumulative error principle does not apply in this case. As we have explained,
there were no series of errors that, when considered in combination, cast
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sufficient doubt on the jury's verdict to require a new trial or an evidentiary
hearing.
V.
Defendant argues that the PCR court erred by failing to conduct an
evidentiary hearing on his PCR petition. Such a hearing is only required if
defendant presents a prima facie case in support of the petition, the court ha s
determined that there are material issues of fact that cannot be resolved based
on the existing record, and an evidentiary hearing is required to resolve the
claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-
10(b)). Because defendant failed to establish a prima facie case for PCR, and
the existing record was sufficient to resolve his claims, an evidentiary hearing
was not required.
VI.
Defendant filed a pro se supplemental brief in which he argues: (1) trial
and appellate counsel were ineffective "in failing to conduct an adequate pretrial
investigation[,]" by "fail[ing] to consult" with him, and by failing to object to
Mitchell's testimony; (2) the PCR court improperly "applied a procedural bar"
to his petition; (3) he was coerced into electing not to testify; (4) prosecutorial
misconduct deprived him of a fair trial; (5) trial counsel was ineffective in
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waiving his confrontation rights and failing to call the medical examiner who
performed the autopsy; (6) trial counsel was ineffective in failing to object to
the trial court's instructions; (7) the cumulative error principle requires reversal
of his conviction; and (8) an evidentiary hearing is required. To the extent these
arguments have not been addressed previously, they lack sufficient merit to
warrant discussion. See R. 2:11-3(e)(2).
Affirmed.
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