State of New Jersey v. Rashad A. Zeigler

NOT FOR PUBLICATION WITHOUT THE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-2029-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAD A. ZEIGLER,

a/k/a TAJ HARDEN, and

RASHAD NIGHT,

Defendant-Appellant.

__________________________

Argued March 13, 2025 – Decided March 20, 2025

Before Judges Mawla, Walcott-Henderson, and Vinci.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Indictment No. 19-07-1946.

Ashley Brooks, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Ashley Brooks, of counsel

and on the briefs).

Lucille M. Rosano, Assistant Prosecutor, argued the

cause for respondent (Theodore N. Stephens, II, Essex

County Prosecutor, attorney; Lucille M. Rosano, of

counsel and on the brief).

PER CURIAM

Defendant Rashad A. Zeigler appeals from his convictions for: second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and 2C:15-1; first-

degree robbery, N.J.S.A. 2C:15-1(a)(1); and first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3). He also challenges his sentence. We affirm.

On the evening of April 27, 2019, defendant was driving around Newark

with his friend, Brian K. Wormley, Jr., in Wormley's Jeep. Defendant stopped,

exited the vehicle to talk to a group of people, and reentered the Jeep with

another friend, a man identified only as "Little Bro." Although Wormley did

not know that man, defendant vouched for him, saying, "[h]e's good." Defendant

told Wormley they were going to buy some pain pills, drove to South Ninth

Street and South Orange Avenue, and pulled up near a black Honda. Little Bro

exited the car and opened the Honda's driver's door. Seconds later, defendant

also exited the Jeep, opened the Honda's front passenger door and began

rummaging through the car.

Moments later, Wormley heard a commotion and exited his Jeep. He then

heard four or five gunshots. The lone occupant of the Honda, Rahman Branch,

was killed. Medina Gibson, the registered owner of the vehicle, and her

seventeen-year-old son were also present, but were not in the car. Gibson's son

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told police he tried to enter the Honda, but an armed individual blocked his way

and told him to get back.

Defendant and Little Bro reentered Wormley's Jeep and told him to drive

away. Wormley dropped the pair off at Eleventh Avenue and Littleton Avenue.

Police recovered footage from a security camera near the intersection of

South Ninth Street and South Orange Avenue and were able to identify the Jeep.

Two days later, detectives pulled Wormley over and asked him to come to the

prosecutor's office for questioning. Wormley identified defendant as the man at

the Honda's passenger door but said he did not know Little Bro. He described

Little Bro as being in his early twenties, wearing a gray hoodie, and "[l]ight-

skinned" with a "low haircut."

Wormley said when they arrived at the Honda, Little Bro approached the

car the victim was in and "start[ed] robbing him." He did not see a gun until

Little Bro approached the Honda. Defendant then ran from the Jeep to the Honda

as well. After hearing the shots, Wormley got out of the Jeep's passenger side

and went around to the driver's side; defendant and Little Bro ran back to the

Jeep and told Wormley to "pull off." Little Bro had a gun when he returned to

the Jeep.

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Wormley gave detectives his cell phone and consented to a search. He

did not come forward sooner because he

was so scared . . . because . . . [defendant] know[s]

where my girlfriend lives. He know[s] the areas I be

in. If you look at my . . . phone history, that night that

that happened, I called him [fifty], [sixty] times because

I was so scared and asking him what the f[***]. . . . I

told you, bro. I—I don't want no parts—out of my car?

I'm the first person this s[**t is] going to come back to.

It's my f[***]ing car.

Wormley told detectives he heard defendant was a member of the Bloods gang.

Detectives showed Wormley a photo array. He picked out defendant from

the array.

Gibson and her son also gave statements to detectives. Investigators

learned Branch was Gibson's friend. Branch contacted her earlier in the day and

she drove to his house to pick him up with her son in the car. Branch sat in the

back seat.

Gibson dropped her son off on Ninth Street sometime around 5:30 or 6:00

p.m. Gibson's son told detectives he often goes there to visit family, and that

evening he was outside the apartment complex on South Ninth Street with his

cousin. After dropping her son off, Gibson and Branch went to a gas station and

afterwards drove to Branch's house, then to Seventeenth Street.

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Gibson recalled Branch got a phone call at some point, but she did not

know who had called, or what the call was about. At Seventeenth Street, she

saw a man give Branch money he seemed to owe him, then Gibson drove Branch

to Twentieth Street. There, Gibson saw multiple people, one of whom she

recognized as "Yab[,]" a man she saw "in the car all the time on [Sixth] Street."

As Gibson and Branch left, Yab "was standing on the curb on the phone[,]"

which bothered her. She also observed a man her niece called "D-Money" that

she frequently saw on Sixth Street. Gibson was surprised to see D-Money there,

since he was usually on Sixth Street, but Branch said he recognized the rest of

the group because they were from Sixteenth Avenue. Branch got out of the car,

but Gibson stayed inside. They left approximately fifteen minutes later.

Gibson drove down South Orange Avenue, turned onto Ninth Street, and

double-parked in the street, keeping the car running. She got out of the car and

walked toward a gate to speak with her friend. Gibson's son went around to the

driver's side to get in the car but saw a man pointing a gun at him, who told him

to "back the f[***] up." When Gibson saw her son moving away from the car,

she went to ask what was wrong and realized someone was standing at the car.

Gibson's son recalled the man with the gun was wearing a gray hoodie and

was "light[-]skinned," but he could not describe the man further. He heard the

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man ask "[w]here the racks at." The son understood "racks" to mean "a lot of

money." Gibson also saw this man and remembered he had a small gun and was

wearing a gray sweatsuit.

Gibson saw another man by the passenger side door who appeared to be

"[f]ighting. Like, trying to get money out of [Branch's] hand or pocket ." Her

son also saw this man, but he did not get a good look at him. He told detectives

he would be unable to recognize the man if he saw a photograph of him. The

son did not see if the man at the passenger side was armed, but he saw him

pointing and assumed he was armed.

Branch "looked stuck," so Gibson went to the other side, "banging on the

car to get the guy's attention. Like, what's going on, why are you doing this [?]"

However, Gibson's son grabbed her, concerned the man on the driver's side

would shoot her.

Gibson heard two gunshots. She saw the men get into a car, which backed

out onto South Orange Avenue. Her son also heard two shots and saw the men

run back to a black Jeep, which drove off.

Both Gibson and her son saw Branch lying on the ground. The son said

Branch's "pockets [were] empty but . . . he always keep[s] money on him. I

know him. We['re] close. His pockets were inside-out."

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Detective Christopher Burrell arrived at the scene between 12:10 and

12:30 a.m. He described the area as commercial/residential with an apartment

complex and a barbershop around the corner. The detective saw a black two-

door Honda Accord with both doors open and noticed a shell casing at the front

of the driver's side door and two behind the rear tire of the passenger 's side.

Investigator Antonio Badim later examined the casings and concluded they were

discharged from the same firearm.

Detective Burrell also noticed a video surveillance camera on the corner

of South Orange Avenue and South Ninth Street at the barbershop. He obtained

footage from the barbershop camera, which showed that at 11:02 p.m., a black

two-door vehicle pulled over in the right lane. A black SUV, later identified as

a Jeep Grand Cherokee SRT, also pulled over in the right lane. One of the Jeep's

rear tires appeared to be a spare. At approximately 11:04 p.m., an individual in

a gray sweatshirt, gray sweatpants, and white sneakers exited the SUV from the

driver's side rear door. Moments later, the SUV's driver exited the vehicle.

Then, an individual exited the SUV from the front passenger door and walked

around to the driver's seat. At 11:06 p.m., the SUV reversed onto South Orange

Avenue and "fled" to the right.

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Investigators extracted data from Wormley's cellphone and towed his Jeep

to the crime scene garage. Detective Grace Marotta processed the Jeep and

collected nine items from the vehicle, which did not yield any prints. Gibson's

Honda was also towed and processed. Although Detective Marotta recovered

two potential latent palm prints, there were no matches found. She also

recovered two bags from the Honda, but they were not tested for prints.

Defendant was charged in connection with the shooting and arrested.

Detective Burrell obtained search warrants for two cell phone carriers to obtain

defendant's cell phone records. Defendant's cell phones were also seized for

data extraction and analyzed by Special Agent John Hauger of the Federal

Bureau of Investigations.

Detective Burrell applied for a warrant to search defendant's residence.

The search yielded blue jeans, but no gun, cash, money, or jewelry.

Branch's autopsy revealed he had five wounds from three gunshots. A

projectile was recovered from Branch's right-side abdomen. The cause of death

was multiple gunshot wounds and ruled a homicide.

After defendant was charged, the State sought a protective order for

Wormley, Gibson, and her son. On February 20, 2020, the court granted the

State's application based on defendant's suspected gang membership and the fact

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that Wormley had "indicated any number of times his fear and concern in this

particular case." The protective order permitted the State to withhold the

witnesses' personal information from defendant and defense counsel, but

instructed the State to make them available for interviews.

On October 11, 2022, Wormley was picked up by the prosecutor's office

under a material witness warrant and lodged in a hotel until trial. At trial, his

testimony was largely consistent with his statement to police. He added that on

April 27, 2019, he drove his Jeep to defendant's home and the pair drove around,

stopping at a gas station to replace a flat tire with a spare. Wormley wanted to

go to his mother's house to "pass out" because he was "high and drunk," but

defendant convinced him to stay. After they left the gas station, with defendant

driving and Wormley in the front passenger seat, they went to South Orange

Avenue and Twentieth Street, where defendant got out and spoke to a group of

people. One individual from this group, wearing a gray sweatsuit with a hood

on, got into the Jeep behind Wormley. When defendant returned to the vehicle,

he told Wormley: "This is my Little Bro. He's good."

Wormley testified defendant drove off to get pain pills and parked on

Ninth Street and South Orange Avenue near a barbershop. Little Bro exited the

Jeep and approached the driver's side of a Honda that was "in the street waiting

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for [them]" and Wormley saw him pull out a gun. Then, there "was a bunch of

commotion, . . . a bunch of screaming back and forth. The guy had the gun up

to [Branch] and then after a couple of seconds, . . . [defendant] exited the driver's

side . . . and runs up to the vehicle . . . to the victim's car."

Defendant approached the passenger side, opened the door, and "was . . .

yelling at the guy or probably rummaging through his stuff in the car." Wormley

did not see defendant with a gun, but "he definitely took part in a robbery"

because he ran to the passenger side of the door. A girl was screaming, and

Wormley exited the Jeep's passenger door and went around to the driver's side

"to get the hell out of there" when he heard "about four or five shots ."

Before Wormley could drive away, Little Bro and defendant reentered the

Jeep. Wormley demanded they exit the car, but they refused and told him to

"pull off." He complied because he just saw them kill someone. Wormley

dropped defendant and Little Bro off at Eleventh Avenue and Littleton Avenue.

Wormley returned home, called his family and friends, and then called

defendant "probably [sixty] times." Defendant never picked up his phone. He

called defendant again the following day, and defendant told him "to relax,

everything was going to be all right, that I got him nervous because I called him,

like [fifty] something times, [sixty] something times, mak[ing] him think that I

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was . . . going to give it up on him." Wormley explained he did not immediately

go to the police because he "was afraid . . . they were going to look at [him] as

a suspect and . . . [defendant] might . . . have something or do something to

[him]."

The State subpoenaed Gibson to testify. She was brought into the

courtroom, outside of the presence of the jury, in handcuffs and escorted by

three officers. When the clerk attempted to administer the oath, she refused to

reply. The trial judge advised her that if she refused to answer questions, she

could be found in contempt and face consequences "ranging from fines to six

months in jail." Gibson refused to be sworn in. Her attorney advised the judge

Gibson understood the consequences of not testifying and was choosing not to

do so. The judge found her in contempt and fined her $100 per day until she

testified. He ordered her to appear the following day, otherwise a bench warrant

would be issued for her arrest. She did not appear, and the judge reserved "on

any further action as to her."

Due to Gibson's failure to testify, defendant requested a jury instruction

on third-party guilt, arguing she had information concerning two possible

suspects, Yab and D-Money. The defense suggested that because Wormley met

D-Money prior to the homicide, D-Money might have been implicated.

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The State requested the judge instruct the jury regarding Gibson's

unavailability. The judge told the jury Gibson was unavailable and instructed

they were "not to speculate as to the reasons why she's unavailable."

After Detective Burrell testified the first day of trial, Juror 13 did not

return. When the juror was contacted, he advised the judge he recognized the

detective when he took the stand, although he had not recognized him by name

earlier. Juror 13 stated he worked on Burrell's car. He did not inform the judge

immediately because he figured he would "do it at the end" of the day, but he

did not get the chance because the jury was released early. He tried not to make

eye contact with the detective while he was on the stand and did not tell the other

jurors he knew the detective. The judge excused Juror 13, instructed the other

jurors they were not to speculate about why the juror was excused, and explained

the excusal should not affect their deliberations.

During summation, the prosecutor replayed surveillance footage that had

been played for the jury during the trial showing the Jeep at South Twentieth

Street and South Orange. However, for the first time, the prosecutor zoomed in

on the video. The prosecutor also played the surveillance footage from the

barbershop on South Ninth Street and South Orange Avenue, showing the Honda

Accord and Jeep, and again zoomed in on the video.

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Following summations but prior to the jury instructions, Juror 3 told the

jury management coordinator she had seen someone she knew in the courtroom

and felt uncomfortable. She informed the judge she had identified "certain

people" in the courtroom that she had "seen before," and felt "nervous," even

though she was unsure if those people recognized her. The juror did not reveal

this information to anyone else, and she was also excused from the jury. The

judge gave the jury the same instruction he had given regarding Juror 13, about

not speculating regarding Juror 3's excusal or letting it affect their deliberations.

Before the jury rendered its verdict, defendant expressed concerns about

"the jurors' level of paying attention" throughout the trial, and said he believed

Juror 13 or 14 "had some sort of conversation in court with one of the family

members of the decedent." The judge noted defendant's observation for the

record.

The jury convicted defendant of the conspiracy, robbery, and felony

murder offenses. It acquitted him of murder, possession of a handgun without

a permit, and possession of a handgun for an unlawful purpose.

At sentencing, defendant's brother and sister spoke on his behalf. The

judge merged the conspiracy and robbery convictions with felony murder and

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sentenced defendant to forty-five years' incarceration, pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant raises the following points on appeal:

POINT I

BECAUSE THE COURT DID NOT ADEQUATELY

ANSWER THE JURY'S QUESTION OR INSTRUCT

THE JURY, REVERSAL IS REQUIRED. (Not raised

below).

A. The Court Failed to Adequately Answer the

Jury's Question.

B. The Court Gave the Wrong Accomplice

Liability Instruction.

C. The Court's Instructions on Co[-]conspirator

Liability Were Confusing and the Prosecutor's

Summation Repeatedly Misstated the Law.

D. The Court Plainly Erred in Not Instructing on

the Law of Attempt.

POINT II

THE PROTECTIVE ORDER VIOLATED

[DEFENDANT'S] CONSTITUTIONAL RIGHTS,

REQUIRING REVERSAL.

POINT III

THE COURT FAILED TO INVESTIGATE JUROR

MISCONDUCT, REQUIRING REVERSAL OR

REMAND. (Not raised below).

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POINT IV

REVERSAL IS REQUIRED DUE TO THE

IMPROPER ADMISSION OF HIGHLY

PREJUDICIAL EVIDENCE. (Not raised below).

A. The Admission of Improper Lay Opinion

Regarding the Video Surveillance and Wormley's

Credibility Constituted Plain Error.

B. The Admission of Wormley's Lay Opinion on

An Ultimate Issue Also Constituted Plain Error.

C. The Admission of Arrest Photos Requires

Reversal as the Photos Were Minimally

Probative and Highly Prejudicial.

POINT V

RESENTENCING IS REQUIRED AS THE COURT

FAILED TO PROPERLY CONSIDER THE

AGGRAVATING AND MITIGATING FACTORS.

A. The Court Failed to Consider [Defendant's]

Age.

B. The Court Improperly Relied on Dismissed

and Diverted Charges.

C. The Court Should Have Considered

Mitigating Factor [Eleven].

I.

Defendant argues several errors related to the jury instructions, none of

which were raised before the trial judge. As a result, we review these arguments

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under the plain error standard. R. 2:10-2. This "requires demonstration of 'legal

impropriety in the charge prejudicially affecting the substantial rights of the

defendant and sufficiently grievous to justify notice by the reviewing court and

to convince the court that of itself the error possessed a clear capacity to bring

about an unjust result.'" State v. Montalvo, 229 N.J. 300, 321 (2017) (quoting

State v. Chapland, 187 N.J. 275, 289 (2006)). "The error must be evaluated 'in

light of the overall strength of the State's case.'" State v. Sanchez-Medina, 231

N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)).

A.

During deliberations, the jury asked if finding defendant guilty of

conspiracy would also require it to find he was an accomplice to, and guilty of,

the actions of the co-conspirator. Defendant argues the answer should have

simply been "no." At a minimum, because the jury seemed confused by the

difference between a co-conspirator and an accomplice, the judge should have

explained the different elements, rather than re-read portions of the original

confusing instructions. He claims the jury's conflation of co-conspirator and

accomplice led it to convict him of robbery and felony murder.

If a jury seeks clarification during deliberation, a trial court "is obligated

to clear the confusion." State v. Savage, 172 N.J. 374, 394 (2002) (quoting State

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v. Conway, 193 N.J. Super. 133, 157 (App. Div. 1984)). When a jury asks a

question seeking clarification, trial judges are encouraged, "when the law is

clear, to respond directly to unambiguous and specific 'yes' or 'no' questions

from juries during deliberations, rather than simply re-read the final jury

charge." State v. Berry, 254 N.J. 129, 146 (2023).

The jury asked the following question:

If we find there was a conspiracy to commit robbery

(guilty on Count 1), must we find that [defendant] is an

accomplice and culpable for anything related to 2, 3, 5

and 6, that we believe the un-indicted co-conspirator[1]

is guilty of doing? Example, if Little Bro was guilty of

robbery, then [defendant] is guilty of robbery as an

accomplice.

The trial judge and counsel discussed how to answer the question, and

without objection, the judge answered the jury's question by reinstructing it that

to find defendant guilty as an accomplice, it "must find that the defendant had

the purpose to participate in that particular crime. He must act with the purpose

of promoting or facilitating the commission of the substantive crime with which

he is charged." The court concluded these instructions by telling the jury that

if you find beyond a reasonable doubt that this un-

indicted co-conspirator committed the crimes of

robbery, unlawful possession of a weapon and

possession of a weapon for unlawful purpose, and also

1

Investigators were unable to locate Little Bro.

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that . . . defendant conspired with his un-indicted co-

conspirator to commit those crimes, then you must find

. . . defendant guilty of the crimes of robbery, murder,

unlawful possession of a weapon and possession of a

weapon for unlawful purpose.

We are unconvinced that re-reading the instruction to the jury was

reversible error. The jury found defendant guilty of the conspiracy to commit a

robbery and of the robbery itself, but did not convict him of either weapons

charge. If the jury had conflated accomplice and co-conspirator liability, it

would have found defendant guilty of at least possession of a weapon for an

unlawful purpose. Having asked whether such a finding was necessary, it is

clear the jury understood from the judge's reinstruction that the answer was no.

B.

Defendant argues the trial judge gave an incorrect accomplice liability

instruction to the jury by failing to inform it that an accomplice could be liable

for a lesser offense and that for defendant to be guilty of first-degree robbery,

the jury had to find he shared Little Bro's intent to commit first-degree robbery.

He asserts the jury may not have found that he knew Little Bro was armed or

had the intent to commit an armed robbery, considering defendant was charged

with conspiracy to commit robbery, not armed robbery. Therefore, the robbery

and felony murder convictions should be reversed.

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Where a court gives an instruction in accordance with the appropriate

model jury charge, it is difficult to find plain error. State v. Ramirez, 246 N.J.

61, 70 (2021) (citing Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449, 466

(2000)). Verdict sheets are considered part of a trial court's instruction to the

jury and are therefore reviewed under the same standard. Galicia, 210 N.J. at

388. If the verdict sheet contains error but the trial court's instructions clarify

the legal standard for the jury, the verdict sheet's error may be deemed harmless.

Id. at 387.

A person may be found liable for the conduct of another as an accomplice

if he "acts with the purpose of promoting or facilitating the commission of the

substantive offense for which he is charged as an accomplice." State v.

Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993) (quoting State v.

White, 98 N.J. 122, 129 (1984)). An accomplice must solicit the other person

to commit an offense, aid, agree, or attempt to aid the other person in the

planning or commission of the offense, or have the legal duty to prevent the

commission of the offense and fail to make a proper effort to do so. N.J.S.A.

2C:2-6(c)(1). An accomplice may be convicted "on proof of the commission of

the offense and of [their] complicity therein." N.J.S.A. 2C:2-6(f).

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An accomplice can only be liable for the actions of another if they "shared

in the intent[,] which is the crime's basic element, and at least indirectly

participated in the commission of the criminal act." Bielkiewicz, 267 N.J. Super.

at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). If there is a shared intent,

an accomplice can be found guilty of armed robbery, even if they do not possess

or use a firearm or other weapon; it is enough that they "committed the same

crime as the individual who possessed or used the gun if the accomplice had the

purpose to promote or facilitate that crime, namely, robbery with the use of a

firearm. One is the alter ego of the other." White, 98 N.J. at 130 (internal

citations omitted).

If two people commit a robbery, but only one person "strikes the fatal

blow," both parties are equally guilty of felony murder. State v. Smith, 32 N.J.

501, 521 (1960). However, if the intent of each differs, "[e]ach defendant may

thus be guilty of a higher or lower degree of crime than the other, the degree of

guilt depending entirely upon his own actions, intent[,] and state of mind." Fair,

45 N.J. at 95. For instance, "if two should attack and one of them intends only

a simple assault and battery and is unaware of the intent of the other to use

deadly force, [they] would be culpable only according to [their] own [respective]

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intent and wrong." Bielkiewicz, 267 N.J. Super. at 528 (quoting State v.

Madden, 61 N.J. 377, 391 (1972)).

"It is not fatal to the State's case that . . . other . . . circumstances[] permit

some other rational explanation of defendant's conduct or fail to exclude every

other conceivable hypothesis except guilt." State v. Brown, 80 N.J. 587, 599

(1979). Rather, it is up to the factfinder to "first determine what the putative

accomplice intended to do." Ramirez, 246 N.J. at 68. The accomplice liability

model jury charge states: "It is not sufficient to prove only that the defendant

had knowledge that another person was going to commit the crime(s) charged.

The State must prove that it was defendant's conscious object that the specific

conduct charged be committed." Model Jury Charges (Criminal), "Liability for

Another's Conduct (N.J.S.A. 2C:2-6(c)(1)(c))," at 1 & n.3 (approved June 2021)

(citing Ramirez, 246 N.J. at 69).

Here, the jury was instructed on the distinction between first- and second-

degree robbery as follows:

If you find the State has proven beyond a reasonable

doubt that . . . defendant committed the crime of

robbery as I have defined that crime to you, but if you

find that the State has failed to prove beyond a

reasonable doubt as to whether . . . defendant purposely

attempted to kill . . . Branch or . . . defendant

purposefully inflicted or attempted to inflict serious

bodily injury upon . . . Branch at the time of the

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commission of the robbery, then you must find . . .

defendant guilty of robbery in the second degree. If you

find the State has proven beyond a reasonable doubt

that . . . defendant, while in the course of committing a

theft, purposely attempted to kill or purposely inflicted

or attempted to inflict serious bodily injury upon . . .

Branch, then you must find . . . defendant guilty of

robbery in the first degree.

Following this charge, the judge defined accomplice for the jury as a

person who "with the purpose of promoting or facilitating the commission of the

offense . . . solicits such other person to commit it and/or aids or agrees or

attempts to aid such other person in planning or committing it." The jury was

instructed to consider defendant's status as an accomplice for each charge

separately. They were further instructed that "[p]articipation and agreement can

be established from conduct as well as the spoken word."

Wormley testified Little Bro pulled out a gun and then defendant, "after a

couple of seconds," also exited the Jeep, approached the Honda, and appeared

to aid in the robbery. Based on these facts, defendant did not have to carry a

firearm to be found guilty of first-degree robbery; it was enough that Little Bro

was armed with and used a gun during the robbery. Likewise, defendant was

not required to strike the fatal blow to be found guilty of felony murder; it was

enough that Little Bro killed Branch during a robbery in which defendant was

an accomplice. The jury could reasonably infer defendant shared Little Bro's

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intent because he saw the gun and still chose to exit the Jeep and aid Little Bro

in the armed robbery. The jury instructions were not erroneous and did not

prejudice the outcome.

C.

Defendant asserts the jury instructions regarding co-conspirator liability

were inaccurate because they failed to distinguish between the first- and second-

degree conspiracy causing the jury to believe it had to find defendant guilty of

first-degree robbery if Little Bro was guilty of the offense, even if first-degree

robbery was not a part of the conspiracy. This problem was compounded by the

prosecutor's opening statement, which wrongly argued a conspirator is

responsible for all the acts of a co-conspirator.

A person is guilty of conspiracy if they act with the purpose of promoting

or facilitating the commission of that crime and:

(1) Agrees with such other person or persons that they

or one or more of them will engage in conduct which

constitutes such crime or an attempt or solicitation to

commit such crime; or

(2) Agrees to aid such other person or persons in the

planning or commission of such crime or of an attempt

or solicitation to commit such crime.

[N.J.S.A. 2C:5-2(a).]

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The model jury charge for conspiracy states a person "is legally accountable for

the conduct of another person when [they are] engaged in a conspiracy with such

other person and the conduct is within the scope of the conspiracy." Model Jury

Charges (Criminal), "Conspiracy—Vicarious Liability (N.J.S.A. 2C:2-6(b)(4)),"

at 1 (approved Oct. 17, 1988) (citation reformatted).

A person may be held legally accountable for the actions of another when

they are "engaged in a conspiracy with such other person." N.J.S.A. 2C:2-

6(b)(4). Criminalizing conspiracies punishes "jointly planned criminal activity

quite apart from any underlying offense involved in the conspiracy." State v.

Kamienski, 254 N.J. Super. 75, 93 (App. Div. 1992) (citing State v. Hardison,

99 N.J. 379, 383 (1985)). The "agreement need not be formal or express." Id.

at 94 (citing United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982)). "An

implicit or tacit agreement may be inferred from the facts and circumstances."

Ibid. Although evidence might be circumstantial and there is "[n]o doubt the

jurors could have reached a different conclusion," the evidence need "not

exclude every conceivable hypothesis except guilt" and a jury can still find a

conspiracy exists. State v. Samuels, 189 N.J. 236, 249 (2007).

So long as a conspiracy exists, the acts of one conspirator outside of the

agreement may be the act of all conspirators, "provided the substantive act could

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'be reasonably foreseen as a necessary or natural consequence of the unlawful

agreement.'" State v. Bridges, 133 N.J. 447, 455-56 (1993) (quoting State v.

Stein, 70 N.J. 369, 388 (1976)). It is reasonable or foreseeable that a robber,

expecting resistance from a victim, "had an alternate plan for persuasion."

Samuels, 189 N.J. at 248.

Conspiracy and accomplice liability are not interchangeable, because

conspiracy requires proof that an agreement was entered into, while accomplice

liability does not. Id. at 254. While a defendant may only be held liable for the

actions committed by an accomplice if he shares the same intent or purpose ,

N.J.S.A. 2C:2-6(c), "the acts of one conspirator in furtherance of the conspiracy

are deemed to be the acts of all of the co-conspirators under a mutual-agency

theory." Bridges, 133 N.J. at 454-55 (citing Stein, 70 N.J. at 339-40). The jury

decides "the purpose with which the defendant acted." Model Jury Charges

(Criminal), 3 "Conspiracy" (N.J.S.A. 2C:5-2) (rev., Apr. 12, 2010) (citation

reformatted).

The judge instructed the jury that conspiracy to commit robbery is

"separate and distinct from the crime of robbery," and to find defendant guilty

of conspiracy, the State had to prove

One, that the defendant agreed with another person or

persons that they or one or more of them would engage

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in conduct which constitutes a crime or an attempt or

solicitation to commit such crime. Two, that the

defendant's purpose was to promote or facilitate the

commission of the crime of robbery.

The verdict sheet also distinguished between first- and second-degree

robbery. It asked if defendant "in the course of committing a theft upon . . .

Branch, did inflict bodily injury or use force against . . . Branch or did threaten

. . . Branch with, or purposely put him in fear of immediate bodily injury ." If

the jury answered in the affirmative, it was then asked to decide if during the

robbery "defendant use[d], threaten[ed] the immediate use of, or was . . . armed

with a deadly weapon?"

The jury was instructed defendant could only be found legally accountable

for the actions of a co-conspirator if the co-conspirator's "conduct is within the

scope of the conspiracy." If they found Little Bro committed robbery, murder,

unlawful possession of a weapon, and possession of a weapon for an unlawful

purpose, and defendant conspired with Little Bro to commit those crimes, then

defendant must be found guilty of those crimes as well.

The jury was instructed it could infer from defendant's conversation with

Little Bro at South Orange Avenue and Twentieth Street, vouching for Little

Bro when he entered the Jeep, and driving to South Orange Avenue and Ninth

Street under the pretense of obtaining pain pills, that the two had conspired to

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commit a robbery. It could also find it foreseeable that during a robbery, a

robber may use a deadly weapon in his possession.

We discern no reversible error. The judge's instructions regarding first -

and second-degree robbery were clear and in accordance with the model charges.

During summations, the prosecutor argued defendant is "liable for the

conduct of his co-conspirator based on the law the judge will read to you."

Although the prosecutor's argument lacked the nuance that the actions must be

within the scope of the conspiracy, the judge's subsequent instructions were

clear that the co-conspirator's conduct must be within that scope. Moreover, the

judge instructed the jury that the arguments of the attorneys did not constitute

evidence. The jury is presumed to follow the court's instructions. State v. Burns,

192 N.J. 312, 335 (2007). We have no reason to believe they did not do so in

this instance.

D.

Defendant argues the trial judge should have instructed the jury on attempt

because there was no evidence the theft was completed. The jury should have

been instructed the State needed to prove there was a substantial step taken

toward effectuating the theft to find a theft occurred.

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Theft is the unlawful taking, or exercise of unlawful control over, the

property of another with the purpose to deprive the lawful owner thereof.

N.J.S.A. 2C:20-3. A person may be guilty of attempted theft when they act

"with the kind of culpability otherwise required for the commission of the crime"

and "purposely does or omits to do anything which, under the circumstances as

a reasonable person would believe them to be, is an act or omission constituting

a substantial step in a course of conduct planned to culminate in his commission

of the crime." N.J.S.A. 2C:5-1. A "substantial step" is taken when a person

"acts in a way that is 'strongly corroborative of the firmness of his purpose' to

carry out the crime." State v. Farrad, 164 N.J. 247, 258 (2000) (quoting State v.

Fornino, 223 N.J. Super. 531, 538 (App. Div. 1988)).

Robbery is an aggravated form of theft, and so "all robberies are thefts,

but not all thefts are robberies." State v. Mejia, 141 N.J. 475, 495 (1995),

overruled on other grounds, State v. Cooper, 151 N.J. 326, 378 (1997). A

defendant is guilty of robbery if, "in the course of committing a theft, [they]:

(1) [i]nflict[] bodily injury or use[] force upon another; or (2) [t]hreaten[]

another with or purposely put [them] in fear of immediate bodily injury; or (3)

[c]ommit[] or threaten[] immediately to commit any crime of the first or second

degree." N.J.S.A. 2C:15-1.

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Robbery can occur even "in an attempt to commit theft or in immediate

flight after the attempt or commission." N.J.S.A. 2C:15-1(a). A defendant can

be convicted, "even if the theft is unsuccessful, if [they] (1) purposely take[] a

substantial step (2) to exercise unlawful control over the property of another (3)

while threatening another with, or purposely placing another in fear of,

immediate bodily injury." Farrad, 164 N.J. at 258 (citing State v. Sein, 124 N.J.

209, 215 (1991)). If during "the commission of, or an attempt to commit, or

flight after committing or attempting to commit robbery," a defendant "causes

the death of a person other than one of the participants," then the defendant is

also guilty of felony murder. N.J.S.A. 2C:11-3(a)(3).

The model jury charges for first- and second-degree robbery instruct the

court to define attempt if an attempt is involved. Model Jury Charges

(Criminal), 2 n. 6, "Robbery in the First Degree (N.J.S.A. 2C:15-1)," (rev., Sep.

10, 2012); Model Jury Charges (Criminal), "Robbery in the Second Degree

(N.J.S.A. 2C:15-1)," at 4 n.6 (rev., July 2, 2009). Where there is a question of

whether a crime was completed, the jury should be instructed to consider

whether the State proved the defendant attempted to commit the crime. Model

Jury Charges (Criminal), "Attempt (N.J.S.A. 2C:5-1)," at 1 (rev., June 15, 2009)

(citation reformatted) (citing N.J.S.A. 2C:1-8d). The State must prove the

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defendant took a "substantial step in the course of conduct planned to culminate

in [their] commission of the crime," and the step "must strongly show the

defendant's criminal purpose." Id. at 3.

In State v. Gonzalez, we vacated a defendant's convictions of first-degree

robbery and felony murder because there was no evidence the victim was

robbed, and therefore the State was "obliged to prove . . . [the] defendant had

attempted to commit robbery and in the course thereof[,] the victim was shot

and died." 318 N.J. Super. 527, 532-33 (App. Div. 1999), abrogated on other

grounds, State v. Hill, 199 N.J. 545, 565-66 (2009). The jury in Gonzalez was

"never apprised that attempt requires purposeful conduct as compared to

purposeful or knowing conduct," or instructed that a "substantial step" was

necessary to constitute an attempt. Gonzalez, 318 N.J. Super. at 534. We held

"[s]ince theft or attempted theft from the person is not a predicate crime for

felony murder, the failure to charge the concept of attempt in the predicate

offense of robbery, and its specific component, 'substantial step,' N.J.S.A. 2C:5-

1(b), constitutes plain error." Id. at 536 (citation reformatted); see also State v.

Dehart, 430 N.J. Super. 108, 119 (App. Div. 2013) (finding where there is no

evidence that defendant took anything from a victim, a trial court is required to

instruct the jury on the law of attempt as an element of robbery).

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Where a court instructs a jury on attempt in relation to a different charged

offense, it is not error to omit the definition in the context of robbery. State v.

Smith, 322 N.J. Super. 385, 399 (App. Div. 1999). In State v. Belliard, 415 N.J.

Super. 51, 74 (App. Div. 2010), we held it was not plain error to omit the

"substantial step" requirement of attempt because the defendant's conduct in an

alleged robbery went "unmistakably beyond the stage of mere preparation and

was a substantial step in the commission of the offense, as planned by the other

individual."

The State concedes there was no evidence of any property taken from

Branch. The trial judge did not define attempt regarding the robbery. He

addressed attempt in relation to the attempt to kill or inflict serious bodily harm,

and instructed that a person must "purposely commit[] an act which constitutes

a substantial step towards the commission of a killing or the infliction of serious

bodily harm." However, like Belliard, the judge addressed the purposeful acts

and culpability elements of attempt in the accomplice liability charge because

defendant's exiting the Jeep, opening the Honda door, and rummaging through

the vehicle, would qualify as a substantial step towards the attempted robbery.

We conclude there was no reversible error because the elements of attempt were

explained to the jury.

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II.

Defendant argues the protective order allowing the State to withhold the

addresses of eyewitnesses infringed upon his constitutional rights to: present a

defense; confront his accuser; and receive effective assistance of counsel. The

withholding of the eyewitnesses' addresses prevented the defense from

challenging witness credibility, investigating the witnesses' reputations in their

neighborhood, and conducting pretrial interviews. The circumstances did not

require "heightened protections" for the three eyewitnesses and did not outweigh

defendant's right to confront, investigate, and question the witnesses.

We review this issue for an abuse of discretion. State v. Ramirez, 252

N.J. 277, 298 (2022). "A trial court can abuse its discretion 'by failing to

consider all relevant factors.' [We] . . . will set aside . . . such decisions if they

do not comport with the applicable law or do not give sufficient regard to

pertinent considerations." Ibid. (quoting State v. S.N., 231 N.J. 497, 500 (2018))

(internal citations omitted).

A defendant is entitled to discovery from the State, including the "names,

addresses, and birthdates of any persons whom the prosecutor knows to have

relevant evidence or information including a designation by the prosecutor as to

which of those persons may be called as witnesses." R. 3:13-3(b)(1)(F).

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However, the State may move for a protective order "to redact, delay, or

withhold the disclosure of materials that would expose witnesses and others to

harm . . . or compromise some other legitimate interest." State in the Int. of

N.H., 226 N.J. 242, 256 (2016). Upon good cause shown, the court can deny,

restrict, defer, "or make such other order as is appropriate" in deciding a request

for a protective order. R. 3:13-3(e)(1). "In determining the motion, the court

may consider . . . protection of witnesses and others from physical harm . . . or

any other relevant considerations." Ibid. Good cause is assessed under "the

totality of the circumstances." Ramirez, 252 N.J. at 297 (citing State v. Buhl,

269 N.J. Super. 344, 356 (App. Div. 1994)).

Our Legislature has stated "without the participation and cooperation of

crime victims and witnesses, the criminal justice system would cease to

function. The rights of these individuals should be given full recognition and

protection." N.J.S.A. 52:4B-35. Witnesses have the right to "be free from

intimidation, harassment[,] or abuse by any person including the defendant or

any other person acting in support of or on behalf of the defendant, due to the

involvement of the victim or witness in the criminal justice process." N.J.S.A .

52:4B-36(c). The Supreme Court has also recognized "the chilling and

inhibiting effect that discovery can have on material witnesses who are subject

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to intimidation, harassment, or embarrassment." Ramirez, 252 N.J. at 296

(quoting State v. D.R.H., 127 N.J. 249, 256 (1992)).

Weighed against the rights of victims and witnesses are the rights of a

defendant, which are "protected expressly or impliedly by the federal and New

Jersey Constitution, and decades of jurisprudence." Id. at 303. Defendants have

the right to be confronted with the witnesses against them. U.S. Const., amend.

VI; N.J. Const., art. I, ¶ 10. Their right to effective assistance of counsel,

includes that counsel can conduct a reasonable investigation by interviewing

witnesses. Ramirez, 252 N.J. at 303-04 (first citing State in the Int. of A.B., 219

N.J. 542, 547 (2014); and then citing ABA Crim. Just. Standards for the Def.

Function standard 4-4.3 (4th ed. 2017)).

The name and address of a witness are essential "because they 'open

countless avenues of in-court examination and out-of-court investigation.'"

State v. Florez, 134 N.J. 570, 581 (1994) (quoting Smith v. Illinois, 390 U.S.

129, 131 (1968)). This is especially true where credibility of the witness is

pivotal to an issue. Ibid. That a witness was "subject to cross-examination does

not resolve the due process issue. The right to present a complete defense

encompasses access to adverse witnesses during the investigation phase of the

defense." State v. Blazas, 432 N.J. Super. 326, 340-41 (App. Div. 2013).

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However, "a defendant's right to . . . pretrial investigation is not absolute."

Ramirez, 252 N.J. at 304. Courts may limit disclosure of a witness's address if

it "tend[s] to endanger the personal safety of the witness." Id. at 306 (alteration

in original) (quoting Smith, 390 U.S. at 133-34). Even without court-imposed

limits, a witness may still decline to be interviewed; "the protected . . . right is

the opportunity for pretrial access[, but] it is not a guarantee of pretrial access."

Blazas, 432 N.J. Super. at 343.

One factor the court may consider when determining if a protective order

is necessary is whether a defendant possesses material that can be used to

impeach the witness on cross-examination. State v. Postorino, 253 N.J. Super.

98, 107 (App. Div. 1991). A court may also consider "the crime charged, the

possible defenses, the possible significance of the informer's testimony, and

other relevant factors." Florez, 134 N.J. at 579 (quoting Roviaro v. United

States, 353 U.S. 53, 62 (1957)). Also relevant is the nature of the alleged threats

to the witness's safety and whether those threats were limited in time. Postorino,

253 N.J. Super. at 107.

A court may place in the protective order certain "safeguards" to protect

the rights of victims or witnesses while also protecting the rights of a defendant.

See id. at 108 (remanding so the trial court could conduct an in-camera

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35

proceeding to ascertain what testimony a witness might offer to determine

whether defendant would need his current name and address to conduct an

effective cross-examination).

The trial judge found that Wormley believed defendant "may be a Bloods

gang member" and expressed "his fear and concern" numerous times in his

statement to the police. The judge balanced defense counsel's need to interview

as many witnesses as possible, including Wormley, Gibson, and her son against

the State's "legitimate concern for the safety of their sole eyewitness and these

other two witnesses." He tried to "strike a very fair balance to permit the defense

to have an opportunity to interview" the witnesses and found it was appropriate

to withhold the addresses of the witnesses, provided that the State make them

available to the defense for interviews. The judge concluded: "I don't see how

that, in any way, inhibits and deprives . . . defendant or his attorney or their

investigators of the opportunity to question these witnesses. If anything, it may

even enhance the ability for them to be interviewed."

We discern no abuse of discretion or misapplication of law. Wormley told

police he did not immediately report the shooting because he "was scared of the

fact that [defendant] knows my car. He knows where my girlfriend live[s]. He

. . . can kill me." When Wormley tried to reach defendant after the shooting and

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defendant eventually returned his calls, defendant expressed concern that

Wormley was going to "give it up." Although defendant did not expressly

threaten Wormley if he spoke with police, defendant's comments reflect he knew

Wormley was an eyewitness. Wormley testified he did not immediately go to

the police because he was afraid defendant might do something to him.

Considering that investigators never found Little Bro, Wormley's perceptions

and his fear of defendant were reasonable.

For confrontation purposes, the defense had Wormley's statement and the

surveillance footage. There was no mystery as to where the offense occurred.

Defendant knew Wormley to a degree that they rode around together in

Wormley's vehicle, which defendant operated the night of the incident. We are

unpersuaded that providing Wormley's address was somehow critical to

defendant's confrontation rights or attacking Wormley's credibility, especially

where the defense had the ability to interview him. Nor does the record establish

how Gibson or her son's addresses were relevant considering they did not testify.

Given the facts they had knowledge as eyewitnesses, there is no indication why

the defense would want them to testify.

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III.

Defendant argues his convictions should be reversed because the trial

judge failed to investigate juror misconduct. He asserts the judge should have

questioned the entire jury to determine if they were tainted by either Juror 3 or

13. Defendant claims the judge compounded these errors when he gave short

shrift to defendant's concern about juror attentiveness.

The Sixth Amendment to the United States Constitution and Article I,

paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to an impartial jury during trial. State v. R.D., 169 N.J. 551, 557 (2001).

Criminal defendants are "entitled to a jury that is free of outside influences and

[that] will decide the case according to the evidence and arguments presented in

court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60

(1983). "The securing and preservation of an impartial jury goes to the very

essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may

have been exposed to extraneous information, the trial court must act swiftly to

overcome any potential bias and to expose factors impinging on the juror's

impartiality." R.D., 169 N.J. at 557-58 (citing State v. Bey, 112 N.J. 45, 83-84

(1988)). "[T]he court must . . . determine whether the jurors are capable of

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fulfilling their duty in an impartial and unbiased manner." State v. McGuire,

419 N.J. Super. 88, 153 (App. Div. 2011) (citing R.D., 169 N.J. at 557-58).

"[T]he trial court is in the best position to determine whether the jury has

been tainted." R.D., 169 N.J. at 559. It must "consider the gravity of the

extraneous information in relation to the case, the demeanor and credibility of

the juror or jurors who were exposed to the extraneous information, and the

overall impact of the matter on the fairness of the proceedings." Ibid. If there

is a possibility of juror taint, the judge must voir dire the potentially tainted juror

and, "in appropriate circumstances, the remaining jurors." State v. Bisaccia, 319

N.J. Super. 1, 13 (App. Div. 1999) (citing State v. Scherzer, 301 N.J. 363, 486

(App. Div. 1997)).

When a party alleges a juror is inattentive, a trial judge "should explain

adequately on the record the judge's personal observations, if any, regarding the

juror's attentiveness." State v. Mohammad, 226 N.J. 71, 89 (2016). If a judge

did not personally observe the juror's inattentiveness, the judge should conduct

an individual voir dire. Ibid. If the juror is found to have been inattentive during

an inconsequential part of the trial, the court has broad discretion over any

corrective action; if the court finds the juror was inattentive during a

consequential part of the trial, the trial court "must take appropriate corrective

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action." Id. at 89-90. When there are alternate jurors, "the trial judge, for good

cause shown, may excuse a juror where the circumstances warrant." State v.

Reevey, 159 N.J. Super. 130, 134 (App. Div. 1978).

We apply an abuse of discretion standard to the trial court's determinations

regarding claims of juror taint. R.D., 169 N.J. at 559-60. A trial judge's control

of their courtroom and any remedial action taken regarding an inattentive juror

is reviewed under the same standard. Mohammad, 226 N.J. at 89. However, a

reviewing court should not ask whether an irregular jury matter "actually

influenced the result, but whether it had the capacity of doing so." State v.

Grant, 254 N.J. Super. 571, 583 (App. Div. 1992) (quoting Panko v. Flintkote

Co., 7 N.J. 55, 61 (1951)). The irregularity is presumed to have had the capacity

to influence the outcome "unless it has affirmatively been shown it does not."

Id. at 588 (citing State v. Sachs, 69 N.J. Super. 566, 588 (App. Div. 1961)).

In R.D., a juror advised the trial court he recognized the victim's mother

when she took the stand, even though he had not recognized her name. 169 N.J.

at 562. The Court held no additional questioning of the other jurors was

necessary because "not only had the excused juror denied communicating his

knowledge to other jurors, but there also was no chance for the excused juror to

communicate his extraneous information about the witness to the other jurors."

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Ibid. The trial judge had "sufficient opportunity to observe the juror during his

two exchanges with him and form an opinion concerning the juror's credibility

and reliability, particularly in light of the corroborating circumstances." Ibid.

When the trial judge learned about Juror 13's familiarity with Detective

Burrell, he removed him from the panel and questioned the juror during a break

"regarding what effect, if any, this knowledge has had on the jury." Pursuant to

the judge's interrogation, he was satisfied with Juror 13's representation that he

did not speak to Detective Burrell or with any of the other jurors. There is no

evidence in the record contradicting the judge's findings and we discern no abuse

of discretion because he did not voir dire the remaining jurors.

The following day, when Juror 3 advised court staff she recognized some

of the people in the courtroom, the judge questioned the juror and was satisfied

she had not discussed the matter with any other jurors and excused her with no

objection from either party. Unlike Juror 13, Juror 3 could not identify who she

knew, where she knew them from, or even how they were related to the matter,

if at all; she just recognized some of the people "out here period ." Her ability

to taint the jury was more remote than Juror 13. The judge's conclusion that

Juror 3 did not taint the panel was not an abuse of discretion.

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41

Defendant waited until the last day of trial to tell the judge that a juror had

a conversation with one of the victim's family members and some of the jurors

were not paying attention. The judge noted defendant's concern and observed

this had not been brought to his attention during the trial. In relaying defendant's

concerns, defense counsel noted that "after [defendant] raised that issue, I

looked. I didn't see any interaction." The judge found it was unlikely any juror

would have had a conversation with someone present in the court apart from

court staff outside of voir dire, or that any juror would have had a conversation

with any person involved in the case inside the courtroom without drawing the

attention of the court or counsel.

The judge did not abuse his discretion. Aside from the fact there was

nothing in the record to support defendant's concerns, he raised those concerns

after the fact, depriving the trial judge of the ability to intervene and instruct the

jury accordingly.

IV.

Defendant argues certain evidence presented at trial was highly

prejudicial. We typically defer to a trial court's evidentiary ruling in the absence

of an abuse of discretion "because, from its genesis, the decision to admit or

exclude evidence is one firmly entrusted to the trial court's discretion." State v.

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Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas.

Ins. Co., 202 N.J. 369, 383-84 (2010)). The trial court's rulings are not disturbed

unless "there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281,

295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Where, as here,

there is no objection made at trial, the issue is reviewed for plain error. R. 2:10-

2.

A.

Defendant alleges the trial judge improperly admitted lay opinion

testimony regarding the surveillance video and Wormley's credibility. The

testimony about the surveillance video was prejudicial because Detective

Burrell said it showed defendant engaging in unlawful activity and corroborated

Wormley's testimony. Defendant asserts this improperly bolstered Wormley's

credibility, which was a decision for the jury to make.

A lay witness may give an opinion if it is rationally based on their

perception, and the opinion will assist the jury in understanding the witness'

testimony or determining a fact in issue. N.J.R.E. 701. Witness perception

"rests on the acquisition of knowledge through use of one's sense of . . . sight."

State v. Singh, 245 N.J. 1, 14 (2021) (quoting State v. McLean, 205 N.J. 438,

457 (2011)). "Courts in New Jersey have permitted police officers to testify as

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lay witnesses, based on their personal observations and their long experience in

areas where expert testimony might otherwise be deemed necessary." State v.

LaBrutto, 114 N.J. 187, 198 (1989).

In McLean, our Supreme Court held an officer could not characterize a

series of events he observed as a drug transaction because that was for the jury

to decide. 205 N.J. at 461. Conversely, the Court found an officer's lay opinion

showing clothing on a suspect captured on surveillance footage was like an item

of clothing worn by a defendant on the night of arrest was not plain error, even

if the item in question was admitted into evidence, enabling the jury to form its

own opinion. Singh, 245 N.J. at 19-20. The Singh Court distinguished McLean,

because in Singh the detective did not say the item in question was the same as

what defendant was wearing at the time of arrest and testified only to the

similarity. Id. at 20.

The Court has ruled an investigator who reviews surveillance video or

other video recordings may narrate the video "[b]y drawing attention to key

details that a jury might otherwise overlook" without violating N.J.R.E. 701.

State v. Watson, 254 N.J. 558, 569 (2023). Investigators must give "focused

responses to specific questions" and "may not comment on facts that are

reasonably in dispute, which should be left for the jury to decide; and they

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should not offer testimony based on inferences drawn from other evidence."

Ibid.; see also State v. Allen, 254 N.J. 530, 548-49 (2023) (finding a detective's

testimony proper where it explained his investigation of the crime scene but

finding the detective's conclusions regarding the defendant's actions improper).

A witness may not opine on the credibility of another witness, because

"credibility is an issue which is peculiarly within the jury's ken and with respect

to which ordinarily jurors require no expert assistance." State v. Frisby, 174

N.J. 583, 595 (2002) (quoting State v. J.Q., 252 N.J. Super. 11, 39 (App. Div.

1991), aff'd, 130 N.J. 554 (1993)). This is especially true when the witness is a

police officer, since juries "may be inclined to accord special respect to such a

witness." Ibid. (quoting Neno v. Clinton, 167 N.J. 573, 586-87 (2001)). The

jury decides what weight to give to a witness's testimony. State v. Lazo, 209

N.J. 9, 24 (2012) (citing State v. Farrow, 61 N.J. 434, 451 (1972)).

Detective Burrell testified that once he received a statement from

Wormley and Gibson, he "had to corroborate their statement by going to the

location that they said they went to during the course of the day and pull video

footage and knock on doors, talk to people to see if they observed them in that

location." He described the various locations to which he or another detective

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went to try to retrieve the video footage, the videos they were able to retrieve,

and whether the timestamps on the videos were accurate.

The part of Detective Burrell's testimony defendant claims was reversible

error was the following colloquy during his re-direct examination:

Q: Okay. And in addition to [Wormley] identifying

people in his vehicle, he told you the locations he had

been at, correct?

A: That's correct, sir.

Q: And you also pulled video surveillance footage

from those areas?

A: Yes.

Q: And the information he told you during his

statement was corroborated by the surveillance videos.

A: Yes, sir.

The prosecutor then continued to question the detective about the investigation,

asking if he had identified or spoken with individuals mentioned by Gibson in

her statement.

We discern no prejudicial error. It is clear from the context that Detective

Burrell was describing the investigation, and the process he used in attempting

to identify Little Bro and any other witnesses to the crime. He had testified he

was "trying to find out . . . [if Wormley's] vehicle [was] involved, was he driving

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his vehicle that night, who was in his vehicle that night," and whether Wormley

was involved in the shooting or not. The detective sought out the surveillance

footage based on Wormley's statement and found it matched what Wormley had

told him. He did not opine on defendant's guilt or Wormley's credibility beyond

the fact the videos show his Jeep at the places and times Wormley had stated.

The jury was instructed it was the sole arbiter of credibility and instructed

about how to assess it. We presume it followed the judge's instructions. The

jury was shown the surveillance videos of Wormley's vehicle and heard his

testimony regarding the Jeep's path that night. They were able to come to their

own conclusions about whether the videos corroborated Wormley's testimony

independent of Detective Burrell's testimony.

B.

Defendant argues the State elicited improper lay opinion and a legal

conclusion from Wormley when he testified "I guess there was a robbery taking

place." This testimony was prejudicial because Wormley did not hear defendant

or Little Bro discussing the alleged robbery and did not see them with the

robbery proceeds.

A witness may testify if they possess "personal knowledge of the matter."

N.J.R.E. 602. Lay witnesses may also offer an opinion if it "is rationally based

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on the witness' perception." N.J.R.E. 701(a). An opinion should not be excluded

simply "because it embraces an ultimate issue to be decided by the trier of fact."

N.J.R.E. 704. Lay witnesses may opine on "matters of . . . observation." State

v. Johnson, 120 N.J. 263, 294 (1990) (citing LaBrutto, 114 N.J. at 197).

For instance, lay opinion may be offered to prove a defendant was

operating a vehicle while under the influence of alcohol. State v. Bealor, 187

N.J. 574, 585 (2006). A witness may use words such as "stalking" and

"harassment" not to express whether a defendant's actions constituted such

crimes but rather the witness's "subjective state of mind placed in layman's

terms." State v. B.A., 458 N.J. Super. 391, 414-15 (App. Div. 2019). Cross-

examination is an effective means of challenging a witness in cases that rest on

the observations and perceptions of a witness. State v. Garcia, 255 N.J. Super.

459, 466 (App. Div. 1992).

Pursuant to these principles, we conclude Wormley's testimony was

proper. Wormley described his state of mind when both defendant and Little

Bro exited his Jeep and approached the Honda, and defendant began rummaging

through it. When asked what happened next, he responded:

After a couple seconds, there's a whole bunch of

commotion. There's a girl in the street screaming.

There's a couple of guys out there. After a couple of

seconds, you know, I guess there was a robbery taking

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place and as I am exiting . . . my vehicle, passenger side

to get into the driver's side to get the hell out of there, I

heard about four or five shots.

Wormley testimony about "a robbery taking place" was to explain why he

exited the Jeep and went to the driver's side to flee the area. His testimony was

based on his personal observation, including hearing shouting and commotion,

defendant's rummaging through the Honda, and Little Bro's threatening

behavior.

Defense counsel cross-examined Wormley to impeach him about why he

believed there was a robbery happening. The defense elicited testimony that

Wormley did not overhear plans or conversations between defendant and Little

Bro about a robbery.

The jury was instructed it could consider a witness's "power of

discernment, meaning [their] judgment or understanding." Therefore, not only

was Wormley's testimony proper because it explained his conduct, the defense

was able to attack his credibility by demonstrating why his impression there was

a robbery taking place was untrue.

C.

Defendant asserts he was deprived of a fair trial because the jury saw

photos showing him in handcuffs. Although the photos were introduced to show

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defendant owned white sneakers like those in the surveillance video, the

prejudice outweighed the relevance because the State could have proven the

same fact through Detective Burrell's testimony and photos of the shoes without

defendant wearing them.

Defendant also argues the jury should not have seen his arrest photos

because they showed him in handcuffs and reminded the jury of his arrest and

incarceration. Based on the photos, the jury assumed defendant was a criminal

who was aware of Little Bro's plans, which prejudiced the outcome of the trial.

Evidence may be excluded if "its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading

the jury; or (b) . . . needless presentation of cumulative evidence." N.J.R.E. 403.

Evidence has probative value when it "has a tendency 'to establish the

proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127 (2008)

(quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)). A party

seeking to exclude evidence has the burden of showing that "the factors favoring

exclusion substantially outweigh the probative value of the contested evidence."

State v. Swint, 328 N.J. Super. 236, 253 (App. Div. 2000) (citing State v.

Morton, 155 N.J. 383, 453 (1998)). "The mere possibility that evidence could

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be prejudicial does not justify its exclusion." Ibid. (citing Morton, 155 N.J. at

453-54).

There are many reasons for the State to introduce photographs of a

defendant at trial, but "[a]rrest photos raise particular concerns, though, because

they can inject prejudice by suggesting a defendant has a prior criminal record."

Lazo, 209 N.J. at 19. Accordingly, mug shots are typically "an impermissible

reference to defendant's criminal record." State v. Harris, 156 N.J. 122, 173

(1998) (citing State v. Cribb, 281 N.J. Super. 156, 161-62 (App. Div. 1995)).

Where a jury is already aware that a defendant was arrested and a mug shot

existed, references to the mug shot are not considered error. Ibid. Any arrest

photographs should be presented "in as neutral a form as possible." Lazo, 209

N.J. at 19 (quoting State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988)).

The State introduced five photos of defendant at trial without any

objection from the defense. Detective Burrell testified all the photos were taken

on the day of defendant's arrest. He explained two of the photos were of

defendant in the interview room and three of them showed him wearing the

sneakers. The sneakers were also admitted into evidence. Wormley had already

testified that in 2019, defendant had a "low haircut[,]" which was different than

the hairstyle he had at trial.

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The State used the photographs to show defendant's appearance was

similar to how he looked when he was arrested and to show defendant on the

surveillance videos in "clearly distinct clothing." The photos of the sneakers

corroborated the surveillance footage showing the individual who exited the

Jeep's driver's side was wearing white sneakers. And the photos of defendant

showed he had a "low haircut" when he was arrested.

None of the photos depicted defendant in handcuffs or indicated they were

taken at a police station. The jury already knew from Detective Burrell's

testimony that defendant was arrested on May 8, 2019. For these reasons, the

relevance of the photos outweighed their prejudicial effect.

V.

Defendant argues prosecutorial misconduct because the State played a

zoomed-in version of the surveillance video during summations. There was no

foundation laid for playing the video in this altered manner or an explanation of

the level of magnification. Defendant asserts the State should have called a

witness to explain the zoomed-in video did not distort or otherwise render it

unreliable. He claims the jury was influenced by the zoomed-in video because

it convicted him after reviewing it many times during deliberations.

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"Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141

N.J. 525, 559 (1995)). A reviewing court should only reverse on the grounds of

prosecutorial misconduct if such misconduct "was so egregious that it deprived

the defendant of a fair trial." Id. at 83 (citing, among others, State v. Ramseur,

106 N.J. 123, 322 (1987)). A defendant's failure to object at the time the

statements are made suggests the remarks were not deemed prejudicial at the

time and deprives the court of the opportunity to take any curative action. Id. at

84 (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997)). A trial

court also has broad discretion in controlling playbacks of video for the jury.

State v. A.R., 213 N.J. 542, 555 (2013) (citing State v. Miller, 205 N.J. 109,

122-23 (2011)).

Evidence must be authenticated or identified by presenting "evidence

sufficient to support a finding that the item is what its proponent claims."

N.J.R.E. 901. The evidence's "probative value must not be offset by undue

prejudice, unfair surprise, . . . or possible confusion of issues due to the

introduction of collateral matters." Rodd v. Raritan Radiologic Assocs., P.A.,

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373 N.J. Super. 154, 165-66 (App. Div. 2004) (citing Balian v. Gen. Motors,

121 N.J. Super. 118, 127 (App. Div. 1972)).

We have observed there has been an "explosive growth in the number of

surveillance cameras in operation," and many investigations now "piece together

recordings made by multiple cameras at different locations" which essentially

allow detectives to track a person or vehicle's path to "an ultimate destination."

State v. Watson, 472 N.J. Super. 381, 472, rev. on other grounds, 254 N.J. 558

(2023). "The power of a video of contemporaneously recorded events at the

crime scene can hardly be disputed. Indeed, it 'enhance[s] a . . . juror's

assessment of credibility by providing a more complete picture of what

occurred." State v. Garcia, 245 N.J. 412, 431-32 (2021) (alteration in original)

(quoting State v. Cole, 229 N.J. 430, 450-51 (2017)).

Video that has been admitted into evidence may be played during

summations. State v. McNeil-Thomas, 238 N.J. 256, 261 (2019). Videos may

also be replayed for the jury, since "jurors cannot be expected to have perfect

recall of every bit of evidence introduced during the trial." Id. at 273 (quoting

Miller, 205 N.J. at 120). A jury's request to review evidence is "a clear sign that

the evidence sought is important to the deliberative process." Miller, 205 N.J.

at 120.

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In Watson, we were not "aware of any rule that would categorically

prevent a prosecutor, subject to the trial judge's approval and proper

authentication, from presenting an augmented version of the video or

screenshot," including zoomed-in portions of a recorded image. 472 N.J. Super.

at 461 n.30. We found little difference "between augmentation accomplished

by creating and introducing a new enhanced video exhibit and augmentation

accomplished instead by allowing a witness to verbally 'zoom in' on a specific

image depicted within the frame of film on display." Ibid. (emphasis omitted).

A lay witness can explain simple adjustments made to videos regarding the

speed of a video, creating a composite video, taking a screenshot, or enlarging

a photo from a video, but where "more elaborate forensic techniques" are used,

an expert witness should testify regarding the techniques, consistent with the

requirements under Rule 702. Id. at 606.

In Boland v. Dolan, our Supreme Court found a jury's use of a magnifying

glass permissible because it "only highlighted or illustrated evidence properly

admitted or testimony of witnesses properly allowed during the trial," and the

parties, counsel, and the jury knew about the possible use of the magnifying

glass early in the trial. 140 N.J. 174, 187-88 (1995). The use of a magnifying

glass "did not constitute new evidence." Id. at 188. Expert testimony was not

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required to explain magnifying glasses to the jury because "[t]he fact that a

magnifying glass is no longer used daily by the average person does not make it

a highly complex scientific instrument." Id. at 189.

Other courts have found zooming in of videos or photographs akin to using

a magnifying glass. See, e.g., People v. Ashe, 174 N.Y.S.3d 509, 516-17 (App.

Div. 2022) (finding a jury was allowed to use the "zoom" function on videos

since it was the equivalent of using a magnifying glass and there was no

evidence the video was altered by zooming).

Very recently, our Supreme Court affirmed our ruling upholding the

permissibility of replaying a video for a jury at a modified, slow-motion speed

with intermittent pauses. State v. Knight, 259 N.J. 407, 409-10 (2024) (Knight

II). Subject to N.J.R.E. 403, we held a trial court considering the admission of

this type of evidence should consider among other things whether the evidence

would assist jurors in understanding "pertinent events" and disputed facts; the

evidence was played back "in open court under the [trial] judge's supervision

. . . in the presence of counsel"; and whether it could help resolve disputed

identification issues or "disputed issues of intentionality." State v. Knight, 477

N.J. Super. 400, 425-26 (App. Div. 2023). The Supreme Court endorsed these

"non-exclusive factors" and regarding the seminal issue held:

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Watching a video in slow motion is a commonplace

method of playing a video that is not beyond the ken of

an average juror. Pushing a button to play a video at a

speed slower than normal to assist the jury in viewing

the difficult-to-perceive recording here was not an

alteration or distortion of the video. It was the same

exact video – simply played in slow motion.

[Knight II, 259 N.J. at 410.]

The facts here uniquely marry the magnifying glass in Boland with the

video technology in Knight. The zoomed-in video was presented without

objection for the first time during the prosecutor's summation. According to the

prosecutor, it showed a person, "[c]learly the defendant," speaking with a group

of men on Twentieth Street. Another video was played, showing Little Bro

getting out of the Jeep and approaching the Honda, and the prosecutor said he

"zoom[ed] in here right to the vehicle, because, ladies and gentlemen, I want no

speculation. I want you to be able to see exactly what happened that night."

During deliberations, the jury asked to see the zoomed-in video "when

Little Bro arrives at [the] Honda until Little Bro and [defendant] leave [the]

Honda." The judge allowed the video to be played for the jury in the presence

of counsel and the court, with no objection.

The use of the zoomed-in video was not reversible error. The video, albeit

without zoom, was already in evidence and was relevant to the jury's task of

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resolving the factual issues. The playbacks occurred in open court under the

judge's supervision and in the presence of counsel. There is no indication the

zoomed-in video altered or distorted the original.

The prosecutor used the zoomed-in video to show Little Bro "going

directly to the driver's side of the vehicle and pulling somebody back. Look at

their hands up, backing away. Here comes the defendant, running to his aid. He

knows what's going on at this point." Pursuant to Wormley's descriptions of the

men, the prosecutor used the video to show these were the same individuals seen

in earlier surveillance videos. The prosecutor also used the video to show

defendant was not buying pain killers, but there to kill Branch. The video helped

the jury resolved "pertinent events" and "disputed issues of intentionality."

Knight, 477 N.J. Super. at 425-26.

Although Detective Burrell did not testify to the zoomed-in video, he

authenticated the original video and described the process of retrieving

surveillance from various areas. Because there is no evidence the zoomed-in

video distorted or altered the video, it did not require further authentication or a

witness to explain the zooming-in process. Indeed, we noted that with the

ubiquity of smart phones, the ability to zoom in or out is not so esoteric or

scientific to be beyond the ken of the average juror.

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VI.

Defendant asserts the trial judge did not properly consider the aggravating

and mitigating factors before imposing a forty-five-year extended NERA

sentence. He claims a term of thirty years would have been sufficient because

he will be in his sixties when he is released, and the risk of recidivism would be

extremely low. In addition to not considering his age, the judge erred by

considering defendant's juvenile record. The judge also did not consider the

hardship incarceration would cause because defendant's children, siblings,

nieces, and nephews rely on him for support.

The abuse of discretion standard applies to our review of a sentence. State

v. Robinson, 217 N.J. 594, 603 (2014). We will affirm a sentence "unless: (1)

the sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

A sentencing court "may consider a juvenile record even if the charges

did not result in convictions." State v. Torres, 313 N.J. Super. 129, 162 (App.

Div. 1998) (citing State v. Tanksley, 245 N.J. Super. 390, 396 (App. Div. 1991)).

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The court must be presented with "the fullest information possible concerning

the defendant's life and characteristics." State v. Marzolf, 79 N.J. 167, 176-77

(1979) (quoting Williams v. New York, 337 U.S. 241, 247 (1949)). A

defendant's "background, including prior arrests or juvenile offenses, should be

fully exposed, even though no convictions have ensued." Id. at 177 (citing,

among others, State v. Sayko, 71 N.J. 8, 13 (1976)). This is especially true "if

the juvenile adjudications are relatively recent, voluminous, or severe." State v.

C.W., 449 N.J. Super. 231, 259 (App. Div. 2017) (citing Torres, 313 N.J. Super.

at 162, and State v. Phillips, 176 N.J. Super. 495, 502 (App. Div. 1980)).

However, the court should not afford the same weight to juvenile offenses as

prior adult convictions. Id. at 260.

In addition to these factors, "age is doubtlessly among the information that

courts should consider when calibrating a fair sentence." State v. Torres, 246

N.J. 246, 273 (2021) (Torres II). However, "age alone cannot drive the

outcome," and a defendant "cannot rely on age to avoid an otherwise appropriate

sentence." Ibid.

The trial judge found aggravating factor three, the risk that the defendant

will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of

defendant's prior criminal record and the seriousness of the offense for which he

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had been convicted, N.J.S.A. 2C:44-1(a)(6); and nine, N.J.S.A. 2C:44-1(a)(9),

the need to deter the defendant and others from violating the law. The judge

rejected defendant's arguments for mitigating factor eight, N.J.S.A. 2C:44-

1(b)(8), that defendant's conduct was the result of circumstances unlikely to

occur; and factor nine, N.J.S.A. 2C:44-1(b)(9), that defendant is unlikely to

commit another offense, noting defendant was on parole at the time of the

current offense and had a prior criminal history.

The judge noted he received three letters submitted on behalf of defendant

and considered defendant's allocution, and comments from his family members

and the victim's sister. Defendant's brother and sister asked the court to show

leniency because they both needed him. However, neither indicated they relied

on him financially or materially and would face a hardship in those respects.

Defense counsel informed the judge defendant had four children, between the

ages of fifteen and eleven, but the record does not show he lived with his

children or supported them.

Although the defense sentencing brief noted defendant had previously

helped care for his younger siblings, helped his uncle recover from a stroke, and

led his partner's children "away from the lure of the streets to be a productive

member of society," there was no indication his family presently relied on him

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and the defense brief did not expressly seek mitigating factor eleven , N.J.S.A.

2C:44-1(b)(11), that imprisonment would entail an excessive hardship to

defendant or his dependents. Although the defense sentencing brief expressed

remorse on defendant's behalf, and during allocution defendant said he was

"deeply sorry" for the Branch family's loss, he denied any responsibility for his

crimes.

The judge considered defendant's record, noting that he was thirty-five

years old, and as a juvenile, had ten petitions filed for offenses, "one of which

was waived up as an adult. He was adjudicated delinquent on three occasions,

had one diversion and was on probation on two occasions." Defendant had four

prior indictable convictions, including convictions for second-degree

manslaughter and weapons offenses in 2016, and two drug-related offenses in

2020. This case involved defendant's fifth, sixth, and seventh indictable

convictions as an adult.

The sentence was not erroneous. The judge was permitted to use

defendant's criminal history, including juvenile offenses, when considering the

appropriate sentence. His findings show he accorded more weight to defendant's

adult convictions by specifically reciting the adult offenses and noting the

existence of the juvenile adjudications.

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The fact defendant received a forty-five-year NERA sentence is well

supported by the facts and circumstances in the record. We are unconvinced a

thirty-year sentence was more appropriate because defendant would be released

at an age where he could not re-offend. Age is but one factor "in the matrix of

information assessed by a sentencing court," and the main concern should be the

overall fairness of a sentence. Torres II, 246 N.J. at 274.

The trial judge appropriately balanced the aggravating and mitigating

factors. He found "the aggravating factors preponderate over the mitigating

factors. This preponderance of aggravating factors weighs in favor of a

custodial term higher than the presumptive term." These findings are supported

by the record. Defendant's sentence does not shock the judicial conscience.

Affirmed.

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