State of New Jersey v. Jermaine T. Wharton

NOT FOR PUBLICATION WITHOUT THE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-2793-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE T. WHARTON,

a/k/a JERMAINE TYRON

WHARTON, JR., and

JARMINE WHARTON,

Defendant-Appellant.

________________________

Argued May 13, 2025 – Decided September 4, 2025

Before Judges Gooden Brown and Chase.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Indictment No. 22-02-0246.

Margaret McLane, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Margaret McLane, of

counsel and on the briefs).

Thomas R. Clark, Deputy Attorney General, argued the

cause for respondent (Matthew J. Platkin, Attorney

General, attorney; Thomas R. Clark, of counsel and on

the brief).

PER CURIAM

Following a jury trial, defendant Jermaine Wharton was convicted of

murder, felony murder, carjacking, and related weapons offenses. He was

sentenced as a persistent offender to an aggregate extended term of forty -three

years in prison, subject to an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

The charges stemmed from defendant fatally shooting a man during the

commission of a carjacking outside of a laundromat in Pleasantville. The victim,

Ivan Smith, had driven to the laundromat in his roommate's car. The State's

proofs included a series of surveillance videos tracking defendant's movement s

in the area on the morning of the shooting, his path fleeing the crime scene in

the carjacked vehicle, and him renting the stolen vehicle later that morning to a

person he encountered on the street.

Law enforcement created a "track flyer" using still shots from the

surveillance videos. Defendant's ex-girlfriend and a police officer identified

defendant as the person depicted in the track flyer. Officers also recovered a

handgun on the side of the road along the suspect's path. Defendant's ex-

girlfriend identified the handgun as belonging to defendant , and a ballistics

A-2793-22

2

expert testified that the bullet recovered from the victim's body matched a test

bullet discharged from the recovered handgun. Defendant maintained his

innocence at trial and asserted he was mistakenly identified.

On appeal, defendant raises the following points for our consideration:

POINT I

THE BALLISTICS EXPERT'S TESTIMONY WAS

INADMISSIABLE BECAUSE IT WAS DISCLOSED

TOO LATE, UNRELIABLE, A NET OPINION, AND

A CONFRONTATION CLAUSE VIOLATION.

A. The Late Disclosure Of The Data

Underlying The Expert's Opinion Required

Exclusion.

B. The Ballistics Expert's Testimony Was An

Inadmissible Net Opinion.

C. The Ballistics Expert Could Not Reliably

Conclude That The Bullet "Matched" The Gun.

1. Firearms Examination – A

Primer

2. The Limits of Reliable

Conclusions in Firearm

Examination.

D. The State Failed To Establish That The

Ballistics Expert Properly Applied A Reliable

Methodology.

A-2793-22

3

E. Testimony That Another Non-Testifying

Expert Reached The Same Conclusion Violated

The Confrontation Clause.

F. The Improper Admission Of The Ballistics

Expert's Testimony Was Harmful Error.

POINT II

THE IMPROPER ADMISSION OF POLICE

OPINIONS ABOUT THE CONTENTS OF THE

VIDEOS AND STILLS REQUIRES REVERSAL.

POINT III

THE FAILURE TO INSTRUCT THE JURY ON THE

TIMING OF THE USE OF FORCE REQUIRES

REVERSAL. [NOT RAISED BELOW.]

POINT IV

THE COURT ERRED IN DENYING THE DEFENSE

MOTION FOR A WADE[1] HEARING ON THE

IDENTIFICATION OF DEFENDANT FROM

BLURRY PHOTOS.

POINT V

THE COURT MISUNDERSTOOD THE

SENTENCING RANGE AND IMPOSED AN

EXCESSIVE SENTENCE.

POINT VI

RESENTENCING IS REQUIRED BECAUSE

SENTENCING DEFENDANT TO AN EXTENDED

1

United States v. Wade, 388 U.S. 218 (1967).

A-2793-22

4

TERM AS A PERSISTENT OFFENDER VIOLATED

HIS SIXTH AMENDMENT RIGHTS. [NOT RAISED

BELOW.]

Having considered the arguments in light of the record and applicable legal

principles, we affirm the convictions but vacate the sentence and remand for

resentencing.

I.

We glean these facts from the trial conducted between February 13 and

23, 2023, during which the State produced twenty-four witnesses, consisting of

civilian, law enforcement, and expert witnesses.

Megan Bianchi testified that between 8:00 and 9:00 a.m. on November 13,

2021, her roommate, Ivan Smith, woke her to borrow her car to go and do

laundry. Bianchi had a 2011 silver Hyundai Sonata which she loaned to Smith.

Smith went to a laundromat called Ye Old Washaus III located at 914 North

Main Steet in Pleasantville. Smith wore "a gray sweatshirt, dark colored pants,

a fitted snapback hat," and "colorful high[-]top shoes."

Just outside, Marie Thenor stood at a bus stop within sight of the

laundromat. She saw two men fighting, one wearing a "gr[ay] jacket" and the

other having his "head wrapped up" in something black that was tied in the back.

Thenor testified that during the fight, the men fell to the ground, but only one

A-2793-22

5

man got back up—the man with the black head wrap. According to Thenor, the

man who got up left the laundromat parking lot in a gray car.

At approximately 9:19 a.m., Pleasantville Police Officer Matthew Stricker

was dispatched to the laundromat after "ShotSpotter," a "gun[shot] detection

application software," was activated. Stricker found a man with "facial trauma"

"[l]ying on his back" on the sidewalk. The man was later identified as Smith.

Smith had sustained a single gunshot wound and was pronounced dead at the

scene.

An autopsy revealed small abrasions and lacerations, referred to as

"powder tattooing" or "stippling," around the central portion of the gunshot

wound, indicating that the murder weapon was "anywhere from two inches to

[twenty-four] inches" from Smith when it was fired. A bullet was recovered

from Smith's body, which was later sent to the New Jersey State Police

laboratory for examination.

Tyainna Figaro lived in a housing development called Marina del Rey

located across the street from the laundromat. At around 9:00 a.m. on the day

of the shooting, Figaro parked her car in the Marina del Rey parking lot . While

she, her mother, and her daughter were still inside the vehicle, a

"dark[‑]skinned" "male" in "dark cloth[ing]" approached the "passenger side

A-2793-22

6

door" of her car, attempted to open the door, and claimed that "someone was

following him." After his attempt to enter the car failed, the man left and walked

"[t]owards the laundromat."

"[N]ot even a minute" later, Figaro "heard gunfire." She called 9-1-1 and

went towards the laundromat to see if she could help because she was a nurse.

She arrived at the laundromat at the same time as the police and found the victim

outside the laundromat "[o]n his back." She gave the police a description of the

man who had attempted to enter her car.

Once the police identified the victim, Pleasantville Police Department

(PPD) Detective Jeffrey Raine contacted the victim's roommate and learned that

he had driven his roommate's Hyundai Sonata that morning. Because Raine did

not find the Sonata in the laundromat parking lot, he entered the vehicle into the

National Criminal Information Center "as stolen."

Raine then reviewed video surveillance tapes collected from the

laundromat and other nearby businesses (the Pleasantville surveillance video).

He determined that the Sonata left the rear of the laundromat parking lot at about

9:21 a.m., turned onto Atlantic Avenue, and headed toward Egg Harbor

Township. The car was ultimately recovered in Millville. Prior to its recovery,

from a series of video surveillance tapes compiled by police (the Millville

A-2793-22

7

surveillance video), at about 11:00 a.m. later that day, a man driving a silver

Hyundai Sonata was recorded talking to another man, later identified as Frank

Scott, who was walking his dog on Oak Street in Millville.

The driver asked Scott if he knew anyone who wanted to rent the silver

car he was driving. Scott testified that he did not know the man prior to this

encounter and described him as a "Black" male wearing "[d]ark[-]colored

clothing." Scott got into the Sonata with his dog, drove around the corner with

the driver, and "talked to a few of [his] friends" to try to help him rent the car to

someone. Scott then "got out [of] the car with [his] dog and . . . left."

The driver approached a second man on Oak Street, Damartaun Milledge,

and asked if he was interested in renting the Sonata. Milledge testified that Scott

made the introduction. Milledge described the driver as "[a] [B]lack guy"

wearing "Adidas pants and a blue hoodie." Milledge declined the offer to rent

the car but indicated that his little cousin, Quataisa Harrington, was interested .

Harrington ultimately rented the Sonata from the driver.

Harrington testified that she was on Oak Street that morning when Scott

and the driver pulled up in a silver car and offered to rent the car to her.

Harrington described the driver as a "[t]all," "[d]ark[-]skinned" man wearing

"[a] blue shirt" and "black pants." According to Harrington, Scott told her that

A-2793-22

8

the driver was renting his girlfriend's car for five days while she was on vacation.

After she agreed to the rental, the driver gave Harrington the car keys and left

on foot.

That night, Harrington and her friend, Nyshawn Mutchersin, drove the car

to Atlantic City for the evening. When Harrington and Mutchersin returned

from Atlantic City after midnight on November 14, 2021, Mutchersin parked the

car on Oak Street in Millville. At about 2:02 a.m. on November 15, 2021,

Millville Police Officer Louis Torres located the stolen Sonata on East Oak

Street in Millville. Torres "[n]otified dispatch," and the vehicle was secured.

The video surveillance capturing the "car rental" encounters were played

for the jury at trial. In the videos, the driver is seen wearing dark pants with a

white stripe down the leg. At one point, the driver retrieved a blue hoodie from

the trunk of the Sonata and put it on before reentering the car. The driver then

exited the car in the same clothing at 11:16 a.m. and walked down the street out

of frame. At 11:18 a.m., a man wearing a blue hoodie and black pants with a

white stripe is depicted walking down the street.

Raine testified that during the investigation, he reviewed the Millville

surveillance video and "took note of the driver of the vehicle, the physical

characteristics of the driver and also the clothing description of the driver ."

A-2793-22

9

Armed with the information, Raine went back to the Pleasantville surveillance

video "to see if [he] could find a person matching or having similar

characteristics or clothing . . . as seen in the video from Millville." Raine

testified that he found a person matching the description of the driver and

tracked the person's movement from an apartment complex in Pleasantville to

the laundromat the morning of the murder.

Using still images from the Pleasantville and Millville surveillance

videos, Raine created a "track flyer" containing three photographs. Two

witnesses, Nadajia Hill and Jordan Corona, later identified the photos in the flyer

as defendant. Hill was defendant's ex-girlfriend. She testified that she had an

"[o]n and off" two-year relationship with defendant, and lived on South Main

Street in Pleasantville in November 2021. In addition to identifying the man in

the track flyer photos as defendant, Hill testified that defendant was wearing her

black peacoat in the photos and was also wearing the peacoat when he left her

home on the morning of November 13, 2021.

Corona, a Newark Police Department detective, testified that in November

2021, while employed with "another government agency," he identified

defendant in the "track flyer." Corona stated he recognized defendant because

he had observed him twice in the daytime in Pleasantville, in July and August,

A-2793-22

10

from a distance of "[twenty] to [thirty] feet." Corona indicated that he was

primarily able to identify defendant from the shape of his head, which he

described as "elongated," with "the back of his head com[ing] out." Corona was

"pretty convinced" that the three photos in the track flyer were all of defendant

and promptly contacted the Atlantic County Prosecutor's Office to notify them.

Raine was also able to identify the stolen Sonata and track it "from the

laundromat . . . down West Delilah Road in Pleasantville towards Egg Harbor

Township." When Raine reported the information to Egg Harbor Township

police, he was advised that a gun was found on the side of Delilah Road by two

girls. Egg Harbor Township Police Officer Gavin Pullan confirmed that on

November 13, 2021, he recovered "a silver Taurus 9[-]millimeter handgun that

was on the ground on the side of the road." Hill identified the handgun as

defendant's gun, which she had observed up close in her kitchen just two days

prior to the murder.

New Jersey State Police Detective Christopher Clayton, a firearm and

tool-mark examiner, testified as an expert in firearms and tool-mark

identification. Clayton examined the handgun and determined that it was

"operable[ and] capable of being discharged." He conducted a "cross-

comparison" between the bullet recovered from the victim's body and a test

A-2793-22

11

bullet. Using Association of Firearm and Tool-mark Examiners (AFTE)

methodology and analysis, Clayton concluded that the "class characteristics" of

the bullets matched. Under "microscopic comparison," Clayton opined that the

patterns or tool-marks on the bullets matched. He explained that there was

"sufficient agreement of those tool-marks for [him] to render an opinion that

th[e] bullet was discharged from this firearm."

At about 12:42 p.m. on November 13, 2021, Millville Police Officer

Carlos Vazquez encountered defendant on East Mulberry Street in Millville.

The encounter was captured in a body camera recording that was played for the

jury. Vasquez testified that defendant was wearing "a black beanie hat, [a] blue

Nike sweater, black Adidas sweat[pants] and black Ugg boots."

At trial, the following stipulation was read to the jury:

The State and [d]efense have stipulated that the

clothing . . . defendant was wearing on November 13[],

2021[,] was turned over to a government agency on

November 13[], 2021[,] and was then later turned over

to the Atlantic County Prosecutor['s] Office on

November 30[], 2021. The clothing included the

following[:] one, a blue hooded zip up jacket[,] Nike

brand. Two, black Adidas pants with white stripes.

Three, [a] black face mask. Four, [a] pair of black in

color Ugg boots. Five, [a] black in color t-shirt[,] Lee

brand. Six, two pairs of socks blue and white in color.

A-2793-22

12

On February 10, 2022, defendant was charged in an Atlantic County

indictment with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one);

first-degree purposeful murder, N.J.S.A. 2C:11-3(a)(1) (count two); first-degree

carjacking, N.J.S.A. 2C:15-2(a)(1) (count three); second-degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four); and

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count

five). On February 23, 2023, the jury convicted defendant on all five counts.

After denying defendant's motion to set aside the verdict and for a new trial, see

R. 3:20-1; R. 3:20-2, the trial judge sentenced defendant on March 31, 2023, and

entered a memorializing judgment of conviction on May 11, 2023. This appeal

followed.

II.

In Point I, defendant argues the admission of Clayton's testimony that "the

bullet that killed Smith came from the gun that allegedly belonged to

[defendant]" requires reversal of his convictions for four reasons: (1) the late

disclosure of the expert's report in violation of Rule 3:13-3(b)(1)(I) (2021);2 (2)

the violation of the net opinion rule, see Rule 703; (3) the use of an unreliable

2

All citations and quotes to the rule are the version in effect at the time of

defendant's trial.

A-2793-22

13

methodology under the Daubert/Olenowski3 factors to support the expert

opinion; and (4) the violation of the Confrontation Clause by asserting that

"another non-testifying expert wholly agreed with his conclusions." Defendant

asserts that for any of these reasons, the trial judge "erred in denying the defense

motions to preclude th[e] testimony, and the improper admission was harmful

error." We disagree.

We first address the alleged late disclosure of the expert's report.

Defendant argues that the expert's curriculum vitae should have been disclosed

no later than thirty days before trial pursuant to Rule 3:13-3(b)(1)(I), and that

the expert's lab notes and the two photos of the bullets "should have been

disclosed even earlier—when the indictment was returned." Instead, they were

disclosed just prior to trial.

"Rule 3:13-3 entitles defendants to broad discovery and imposes an

affirmative duty on the State to make timely disclosure of relevant information"

on a continuing basis. State v. Smith, 224 N.J. 36, 48 (2016); see State v.

Ramirez, 252 N.J. 277, 296 (2022) (describing the "automatic discovery

model"). "The State's duty to provide the requisite discovery commences 'upon

3

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); State v.

Olenowski (Olenowski I), 253 N.J. 133 (2023).

A-2793-22

14

the return or unsealing of the indictment,' R. 3:13-3(b)(1), and continues during

the course of a criminal proceeding, R. 3:13-3(f)." State v. Mauro, 476 N.J.

Super. 134, 149 (App. Div. 2023) (footnote omitted).

Pertinent to this appeal, Rule 3:13-3(b)(1)(I) (2021) provides:

Except for good cause shown, the prosecutor's

discovery for each defendant named in the indictment

shall be provided by the prosecutor's office upon the

return or unsealing of the indictment. . . . If any

discoverable materials known to the prosecutor have

not been supplied, the prosecutor shall also provide

defense counsel with a listing of the materials that are

missing and explain why they have not been supplied.

....

Discovery shall include exculpatory information or

material. It shall also include, but is not limited to, the

following relevant material:

....

(I) names and addresses of each person whom the

prosecutor expects to call to trial as an expert

witness, the expert's qualifications, the subject

matter on which the expert is expected to testify,

a copy of the report, if any, of such expert

witness, or if no report is prepared, a statement of

the facts and opinions to which the expert is

expected to testify and a summary of the grounds

for each opinion. Except as otherwise provided

in [R.] 3:10-3, if this information is not furnished

[thirty] days in advance of trial, the expert

witness may, upon application by the defendant,

be barred from testifying at trial.

A-2793-22

15

While "[l]ate discovery can cause unfair surprise and raise due process

concerns," Smith, 224 N.J. at 48, the rules leave the appropriate response to the

sound discretion of the trial court because the appropriate response will depend

upon the circumstances presented, see id. at 50-52. If the State fails to comply

with its discovery obligations, "the court 'may order such party to permit the

discovery of materials not previously disclosed, grant a continuance or delay

during trial, or prohibit the party from introducing in evidence the material not

disclosed, or it may enter such other order as it deems appropriate.'" Mauro,

476 N.J. Super. at 149 (quoting R. 3:13-3(f)).

In State v. LaBrutto, 114 N.J. 187 (1989), our Supreme Court identified

the following factors as weighing against preclusion of expert testimony due to

late disclosure: "(1) the absence of any design to mislead, (2) the absence of the

element of surprise if the evidence is admitted and (3) the absence of prejudice

which would result from the admission of evidence." Id. at 205 (quoting Amaru

v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985)). In Mauro, we explained

that preclusion of testimony for failure to comply with discovery obligations is

a "drastic remedy" that "should be applied only after other alternatives are fully

explored." 476 N.J. Super. at 149 (quoting State v. Scher, 278 N.J. Super. 249,

272 (App. Div. 1994)).

A-2793-22

16

"A trial court's resolution of a discovery issue is entitled to substantial

deference and will not be overturned absent an abuse of discretion." State v.

Stein, 225 N.J. 582, 593 (2016). That said, "we will not defer to discovery orders

that are 'well "wide of the mark" or "based on a mistaken understanding of the

applicable law."'" Mauro, 476 N.J. Super. at 150 (quoting State v. Hernandez,

225 N.J. 451, 461 (2016)); see id. at 152 (finding no abuse of discretion where

the trial court barred evidence "following multiple conferences during which the

court repeatedly suggested the parties meet and confer to review discovery, and

the prosecutor's repeated failures to disclose evidence or itemize the discovery

that had been disclosed in violation of R. 3:13-3(b)(1)"). Moreover, "[u]nless

persuaded by a trial court's reasoning, [we] do not defer to the court's

interpretation of a court rule." Id. at 150.

Here, pre-trial, defendant moved to bar Clayton's testimony, principally

on discovery grounds. On February 13, 2023, in an oral opinion, the judge

denied the motion. The judge recounted that Clayton's ballistics report,

confirming the operability of the recovered handgun and memorializing that the

test bullet and the bullet recovered from the victim matched, was provided to

defendant in March 2022. However, the judge noted that "two photographs" of

the bullets, lab notes essentially "identif[ying] the weapon," and Clayton's

A-2793-22

17

"three-page CV" were not provided until February 10, 2023, four days before

jury selection commenced. In denying defendant's motion to preclude Clayton

from testifying as an expert, the judge found no violation of Rule 3:13-3(b)(1)(I)

(2021). The judge concluded that "given the totality of the circumstances, there

w[as] sufficient information provided to allow . . . defendant to be on notice of

the . . . scope of [the expert] opinion."

In support, the judge explained:

[T]he defense had sufficient opportunity to prepare

for[] . . . Clayton's testimony. It is not prejudiced by an

introduction of two photographs and one page of notes

in the CV. The documents only memorialized the

opinion, which was provided to the defense in March of

2022 . . . almost [eleven] months ago . . . .

The defense was provided with sufficient

. . . information as to what the opinion would be and

that the . . . weapon had been tested and compared.

Here, the defense had an opportunity to

physically inspect the weapon and bullets. It had

sufficient time to hire an expert and was on notice. And

it had . . . extensive . . . notice [of] what . . . Clayton

would be testifying to.

The following day, defense counsel informed the judge that he had

advised defendant of his right to request a postponement of the trial "to examine

[Clayton's] report more closely, perhaps with the aid of an expert." However,

according to defense counsel, defendant wished "to proceed [to trial] despite the

A-2793-22

18

. . . late discovery." Defendant confirmed his attorney's representation on the

record.

We discern no abuse of discretion in the judge's ruling. The State

substantially complied with its continuing discovery obligation and the late

disclosure did not surprise or prejudice defendant in the preparation of his

defense or for trial, particularly since the defense had an opportunity to

physically inspect the handgun and bullets eleven months prior to trial.

Moreover, defendant waived his objection by confirming that he did not wish to

seek a postponement of the trial to either consider the State's belated discovery

disclosure or retain his own expert. See Rule 1:7-2 (providing that "[f]or the

purpose of reserving questions for review or appeal relating to rulings or o rders

of the court," "a party, at the time the ruling or order is made or sought, shall

make known to the court specifically the action which the party desires the court

to take or the party's objection to the action taken and the grounds therefor ").

Next, we address the alleged violation of the net opinion rule.

Specifically, defendant argues that Clayton produced a "bare-bones report" and

failed to explain how he arrived at his conclusions, rendering his testimony an

inadmissible net opinion under N.J.R.E. 703. Defendant asserts Clayton failed

A-2793-22

19

to explain to the jury how he reached his conclusion that the bullet retrieved

from the victim's body matched the "test" bullet.

We "generally 'defer to a trial court's evidentiary ruling absent an abuse

of discretion.'" State v. Burney, 255 N.J. 1, 20 (2023) (quoting State v. Garcia,

245 N.J. 412, 430 (2021)). "'A court abuses its discretion when its "decision is

made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis."'" Ibid. (quoting State v. Chavies,

247 N.J. 245, 257 (2021)).

N.J.R.E. 702 and 703 together govern the admissibility of expert

testimony. Townsend v. Pierre, 221 N.J. 36, 53 (2015). While N.J.R.E. 702

addresses the scope, N.J.R.E. 703 addresses the foundation of the expert

testimony, providing that

[t]he facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to the expert at or before

the proceeding. If of a type reasonably relied upon by

experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not

be admissible in evidence.

"The net opinion rule, a corollary of N.J.R.E. 703, 'forbids the admission

into evidence of an expert's conclusions that are not supported by factual

evidence or other data.'" Burney, 255 N.J. at 23 (quoting Townsend, 221 N.J.

A-2793-22

20

at 53-54); accord Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372

(2011). "The rule requires that an expert '"give the why and wherefore" that

supports the opinion, "rather than a mere conclusion."'" Townsend, 221 N.J. at

54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,

144 (2013)). As such, "[a] court must ensure that the proffered expert does not

offer a mere net opinion." Burney, 255 N.J. at 23 (quoting Pomerantz Paper

Corp., 207 N.J. at 372).

The Townsend Court provided the following specific guidance on the

subject:

The net opinion rule is not a standard of

perfection. The rule does not mandate that an expert

organize or support an opinion in a particular manner

that opposing counsel deems preferable. An expert's

proposed testimony should not be excluded merely

"because it fails to account for some particular

condition or fact which the adversary considers

relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005)

(quoting State v. Freeman, 223 N.J. Super. 92, 116

(App. Div. 1988)). The expert's failure "to give weight

to a factor thought important by an adverse party does

not reduce [the expert's] testimony to an inadmissible

net opinion if he [or she] otherwise offers sufficient

reasons which logically support [an] opinion."

Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App.

Div. 2002) (citing Freeman, 223 N.J. Super. at 115-16).

Such omissions may be "a proper 'subject of

exploration and cross-examination at a trial.'" Ibid.

(quoting Rubanick v. Witco Chem. Corp., 242 N.J.

Super. 36, 55 (App. Div. 1990), modified on other

A-2793-22

21

grounds, 125 N.J. 421 (1991)); see also State v. Harvey,

151 N.J. 117, 277 (1997) (Handler, J., dissenting)

("[A]n expert witness is always subject to searching

cross-examination as to the basis of his [or her]

opinion." (quoting State v. Martini, 131 N.J. 176, 264

(1993), overruled on other grounds by, State v. Fortin,

178 N.J. 540 (2004))).

[Townsend, 221 N.J. at 54-55 (fourth alteration in

original) (citations reformatted) (internal quotation

marks omitted).]

Here, Clayton's conclusion that the bullet retrieved from the victim's body

came from the abandoned gun was derived from his personal examination and

review of the evidence in the case. Clayton testified that he examined the

abandoned gun and tested its functionality to determine that it was capable of

being fired. He then explained to the jury how a cross-comparison works,

including how he evaluated the "class characteristics" of the victim's bullet

against a test-fired bullet and was then able to conclude that the two bullets

shared the same class characteristics. Similarly, Clayton testified that he

conducted a "microscopic comparison" of the two bullets and the scratch marks

left on each from the gun's barrel. He explained that the "microscopic

imperfections inside that barrel . . . are unique or distinct to that barrel."

Ultimately, Clayton's examination and testing allowed him to conclude

that there was "sufficient agreement" between the scratch marks to support his

A-2793-22

22

opinion that the victim's bullet was discharged from the abandoned gun. Such

testimony does not have the hallmark characteristics of a net opinion, but rather

is supported by facts, evidence, and photographs. The testimony was also

subject to cross-examination by defendant, and, in turn, acceptance or rejection

by the jury. We therefore discern no abuse of discretion in the judge's rejection

of defendant's contention that Clayton's opinion was an inadmissible net

opinion.4

Next, we address defendant's reliability challenge. Defendant argues the

State failed to demonstrate that Clayton applied reliable methodology to reach

his conclusions, rendering his testimony inadmissible under N.J.R.E. 702 and

the Daubert/Olenowski standard. Defendant's attack on Clayton's testimony in

this regard is twofold. First, defendant submits that firearm examination

evidence is generally flawed because "there are no standardized guidelines

informed by empirical research that define 'sufficient agreement' such that an

examiner can identify the firearm that shot a particular bullet." Second,

4

Although defendant's express objection to Clayton's testimony as a net opinion

is not reflected in the record, the judge recited the net opinion standard, and

acknowledged that the State's late production of Clayton's notes and

photographs insulated his testimony from a net opinion challenge.

A-2793-22

23

defendant argues that Clayton's specific report lacks the proper documentation

to demonstrate that he reliably applied his methodology.

In State v. Olenowski (Olenowski II), 255 N.J. 529, 580-81 (2023), our

Supreme Court announced its unanimous adoption of a hybrid appellate review

standard to assess "the bona fides of an expert's methodology" and its

application to the case:

Going forward, we hold that in New Jersey criminal and

quasi-criminal cases in which the trial court has

admitted or excluded an expert witness based upon

Daubert reliability factors, our appellate courts shall

review that reliability determination de novo.

However, other case-specific determinations about the

expert evidence—such as whether the witness has

sufficient expertise, whether the evidence can assist the

trier of fact in that case, and whether the relevant theory

or technique can properly be applied to the facts in

issue—should be reviewed for an abuse of discretion.

Thus, all N.J.R.E. 702 challenges to methodology previously considered

under Daubert are now reviewed de novo. Specifically referencing ballistics

experts, the Olenowski II Court explained that "[i]t would be dysfunctional to

have the admissibility of their opinions depend upon how individual trial judges

assess the reliability of their methodologies under the Daubert factors, based on

varying presentations by varied counsel, and require appellate courts to defer to

those varying and potentially conflicting rulings." 255 N.J. at 581. The Court

A-2793-22

24

explained that the "stability and fairness of the criminal justice system would be

undermined" without standardized de novo review in these matters. Id. at 581-

82. However, the trial court continues in its "gatekeeping responsibility" when

evaluating the expert's case-specific application of the evidence, which we

review for abuse of discretion. Id. at 616.

N.J.R.E. 702 provides the foundation for the admissibility of expert

testimony, addressing the qualifications of the expert and the helpfulness of the

expertise to the jury as follows: "If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise."

To satisfy the rule, expert testimony must meet the following criteria:

(1) the subject matter of the testimony must be beyond

the ken of the average juror; (2) the field of inquiry

must be at a state of the art such that an expert's

testimony could be sufficiently reliable; and (3) the

witness must have sufficient expertise to offer the

testimony.

[Olenowski I, 253 N.J. at 143 (internal quotation marks

omitted) (quoting State v. J.L.G., 234 N.J. 265, 280

(2018)).]

A-2793-22

25

When defendant's trial commenced, our courts still applied the Frye5 test

for assessing the scientific reliability of expert testimony. J.L.G., 234 N.J. at

280. Under the Frye standard, "[s]cientific test results [were] admissible in a

criminal trial only when the technique [was] shown to be generally accepted as

reliable within the relevant scientific community." State v. Nieves, 476 N.J.

Super. 609, 647-48 (App. Div. 2023), certif. granted, 256 N.J. 451 (2024) (first

alteration in original) (quoting State v. Cassidy, 235 N.J. 482, 491-92 (2018)).

"'That is to say, the test must have a "sufficient scientific basis to produce

uniform and reasonably reliable results and will contribute materially to the

ascertainment of the truth."'" Id. at 648 (quoting State v. Pittman, 419 N.J.

Super. 584, 592 (App. Div. 2011)).

Our Supreme Court's decision in Olenowski I was issued mid-trial on

February 17, 2023, adopting the standard for scientific reliability in criminal

cases as set forth in Daubert and rejecting the formerly applied "generally

accepted" Frye paradigm. Olenowski I, 253 N.J. at 139. The Daubert standard

requires a trial court reviewing a proffer of expert scientific testimony to make

a "preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or

5

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

A-2793-22

26

methodology properly can be applied to the facts in issue." Id. at 147 (emphasis

omitted) (quoting Daubert, 509 U.S. at 592-93).

In so holding, Olenowski I outlined four "non-exclusive" factors

identified in Daubert to assist the trial court in making the assessment:

(1) whether the scientific theory or technique can be, or

has been, tested; (2) whether it "has been subjected to

peer review and publication"; (3) "the known or

potential rate of error" as well as the existence of

standards governing the operation of the particular

scientific technique; and (4) general acceptance in the

relevant scientific community.

[Ibid. (quoting Daubert, 509 U.S. at 593-94).]

"The Court emphasized the inquiry is 'a flexible one' and that its 'focus . . . must

be solely on principles and methodology, not on the conclusions that they

generate.'" Ibid. (quoting Daubert, 509 U.S. at 594-95).

Following a N.J.R.E. 104 hearing to evaluate the admissibility of

Clayton's expert testimony, the judge issued an order and oral opinion on

February 22, 2023, denying defendant's renewed objection to bar the testimony,

now based on Olenowski I's adoption of the Daubert standard.6 At the outset,

6

Although "the holding in Olenowski[ I] is not retroactive," Nieves, 476 N.J.

Super. at 617 n.1 (citing Olenowski I, 253 N.J. at 154), defendant was entitled

to its application because Olenowski I was decided while his trial was ongoing.

A-2793-22

27

the judge recounted Clayton's qualifications and the scope of his expertise as

follows:

Clayton is employed by the New Jersey State Police,

Detective Sergeant First Class in the ballistics unit.

He's been employed by the New Jersey State Police for

[eighteen] years. He is a . . . firearm and tool-mark

examiner.

Relative to this, his duties include testing

firearms, matching bullets to certain firearms through

their tool-marks, then the tool-marks that are made by

those tools, the tool-marks being lands and channels

that are marks on the bullets, which would be created

by the . . . tool itself, which is the firearm. As part of

his job in . . . being an examiner, he test-fires firearms[

and] determines whether or not they are operable.

He . . . checks the firearms for safety. He checks

the firearms for certain characteristics. He also

compares discharged bullets from those firearms, . . .

and he does all of this to standards which are set forth

by the AFTE, AFTE theory of identification, and then

its general methodology, which includes the firing, and

then also includes microscopic comparisons . . . to

evaluate specimens for tool-marks. Now, . . . AFTE is

a theory of identification. The general methodology is

the procedure by which the theory can be tested.

Next, applying the Daubert factors, the judge first addressed "whether the

scientific theory or technique can be or has been tested."

Here, there are two types—the theory, which is the

AFTE theory of identification, also has a methodology

for evaluation of a specimen for microscopic

A-2793-22

28

evaluation, and then for comparison microscopic

evaluation of the . . . bullet.

First, what is taken into . . . account are the class

characteristics including the size of the bullet, the twist

of the . . . tool or the bullet, the lands and grooves, and

other markings that occur when a bullet is discharged

from a firearm. . . . [T]here is a specific methodology

for what occurs. First, the weapon is tested for

operability, does it work or not. Is it . . . safe to fire?

The gun is then test-fired, and then there's a report

about whether or not it's operable.

Further testing would be to take a . . . discharged

bullet and compare it to other bullets, . . . either an

unknown bullet or a bullet that is known to have been

discharged from the tool. The test standards for how

those class characteristics are evaluated, and then

through microscopic comparison, which has been a

scientific tool for nearly 100 years, . . . they can be

compared. And . . . what is observed is a pattern or

group of patterns which are sufficiently similar to

support that there is a sufficient agreement that each of

the . . . bullets was discharged from the same firearm.

. . . Clayton's conclusions, if there is sufficient

agreement, are then reviewed blind by another

examiner in the New Jersey State Police lab, in which

that examiner does not know the results or conclusion

of . . . Clayton's evaluation. That's done as a check with

the same procedures. So here, whether the scientific

theory or technique . . . can be or has been tested,

clearly there is a scientific technique in this matter,

which can be tested and has been tested.

Next, the judge addressed "whether or not" Clayton's scientific technique

was "subjected to peer review and publication" and determined that tool marking

A-2793-22

29

and tool comparison had been "reviewed sufficiently and subject to publication."

In that regard, the judge credited Clayton's testimony "that from 1970 through

1995, there were multiple studies consistently showing that you can identify a

mark to a tool that was used to make it." The judge also acknowledged "peer-

review of AFTE" by "their own publications as well as the American Academy

of Forensic Science."

Next, in addressing the "rate of error," the judge found that the scientific

technique operated with "a less than 1% error rate in the field." Based on

Clayton's testimony "that they do make findings of inconclusive or actually

dismiss or disregard a firearm as not matching," the judge found no reason "to

believe that . . . the error rate [at the New Jersey State Police lab was] anything

other than less than 1% in the field."

Lastly, regarding "the existence of standards governing the operation of

[the] particular scientific technique" and the general acceptance in the relevant

scientific community, based on the totality of Clayton's testimony, the judge

concluded that it was "generally accepted that you can match tool-marks to the

tool . . . from which they were made, and the scientific portions of the

microscopic comparison [were] generally accepted in the community." The

judge rejected "the contrary studies" offered by defendant to challenge the

A-2793-22

30

reliability of the scientific technique, noting that they could be "utilized on

cross-examination."

Likewise, in rejecting defendant's arguments regarding subjectivity, the

judge explained:

The defense arguments about the subjectivity

inherent in otherwise reliable methodologies go to the

weight of the evidence and not the admissibility. These

are concerns that are best addressed by cross-

examination. Expert testimony is still testimony. It's

not irrefutable fact, and [its] persuasive powers [are] for

the jury to decide.

In fact, the jury charge for expert testimony

specifically indicates that the jury is not bound . . . "by

such expert's opinion . . . ."

Cognizant of our standard of review, we are convinced the judge correctly

applied the Daubert factors and properly determined that Clayton's testimony

satisfied each element. We affirm the judge's ruling admitting Clayton's expert

testimony substantially for the reasons articulated by the judge.

Defendant maintains that Clayton's testimony was unreliable under the

Daubert factors because his firearm examination conducted pursuant to the

AFTE methodology was flawed in general. In support, he asserts that because

individual "microscopic comparison" does not present a "standard or protocol[

that] dictates how many characteristics the examiner must find in agreement to

A-2793-22

31

declare a match," without more objective standards in place, each examiner is

left free to set the criteria based on individualized training and experience .

Defendant concedes that our courts have used this type of firearm matching

testimony for decades. Nonetheless, he asserts it "has far outstripped what is

scientifically reliable," contributing to the judge's error in permitting Clayton's

testimony. Defendant further contends that Clayton's report lacks the proper

documentation to demonstrate that he reliably applied the AFTE methodology.

We reject defendant's contentions out of hand. We have acknowledged

that "[t]he science of firearm and tool[-]mark identification is well-established,

spanning over 100 years in the United States." State v. Ghigliotty, 463 N.J.

Super. 355, 362 (App. Div. 2020). Thus, "tool[-]mark analysis is not a

newcomer to the courtroom." State v. McGuire, 419 N.J. Super. 88, 130 (App.

Div. 2011). Indeed, "[b]ecause of their uniqueness, a firearm's individual

characteristics make firearm identification possible, so long as the toolmarks

imparted are 'reproducible for comparisons.'" Ghigliotty, 463 N.J. Super. at 362

(quoting Robert M. Thompson, Nat'l Dist. Att'ies Ass'n, Firearm Identification

in the Forensic Science Laboratory 7-9 (2010)).

"For the science of toolmark identification, the

underlying hypothesis is that a toolmark can be

identified to a specific tool that produced it, to the

practical exclusion of all other tools." Thompson, at

A-2793-22

32

9‑10. Although it is impossible to prove the hypothesis

"by testing all tools ever produced in the world,"

firearms examiners make identifications "based on

observation and experimentation" which includes the

consideration of "'known non-match'" toolmark

comparisons. Thompson, at 10.

. . . "There is a foundation of knowledge about

firearm and tool[-]mark identification that has been

organized over time and is described in forensic

textbooks, scientific literature, reference material,

training manuals, and peer reviewed scientific

journals." Id. at 28-29. The [AFTE], an international

body of practitioners, is the largest professional

organization in the field and publishes a professional

journal concerning firearm and toolmark science. Id. at

11, 29.

Neither the underlying principles nor the

methodology has changed significantly during the last

100 years. Id. at 8. The AFTE recognizes that the

"most widely accepted method used in conducting a

toolmark examination is a side-by-side, microscopic

comparison of the markings on a questioned material

item to known source marks imparted by a tool."

President's Council of Advisors on Sci. and Tech.,

Forensic Science in Criminal Courts: Ensuring

Scientific Validity of Feature-Comparison Methods,

104 (2016). A firearms toolmark examiner uses a

comparison microscope to compare toolmarks on an

evidence bullet with toolmarks present on a test[-]fired

bullet from the suspected weapon that is linked to either

the crime scene or a suspect. Thompson, at 10, 27.

Class characteristics are evaluated first, followed by

individual characteristics. Id. at 26-27; Comm. on

Identifying the Needs of the Forensic Scis. Cmty., Nat'l

Rsch. Council, Strengthening Forensic Science in the

United States: A Path Forward, 152-53 (2009);

A-2793-22

33

President's Council of Advisors on Sci. and Tech., at

11, 104.

....

When an examiner finds that the toolmarks on an

evidence bullet and a test bullet fired from the

suspected weapon are in "sufficient agreement," a

firearm identification can be made. Thompson, at 9-10,

26. "[T]he final determination of a match is always

done through direct physical comparison of the

evidence by a firearms examiner, not the computer

analysis of images." Comm. on Identifying the Needs

of the Forensic Scis. Cmty., at 153.

In 1992, the AFTE adopted a "Theory of

Identification" and standardized the terms and

conclusions that firearms examiners should use to

describe examination results. Revised in 2011, the

Theory of Identification recognizes that identification

is "subjective in nature" and defines and explains the

"sufficient agreement" standard used by

examiners[. Thompson, at 11.]

....

Based on its Theory of Identification, the AFTE

developed four potential conclusions for examiners to

make following an investigation: (1) identification; (2)

inconclusive; (3) elimination; and (4) unsuitable,

meaning that the evidence was not suited for

examination. Id. at 11-12.

....

As of 2010, the error rate in actual casework had

not been studied or determined. Id. at 29. However,

"reviews of proficiency testing data show[ed] that the

A-2793-22

34

error rate for misidentifications for firearm evidence is

approximately 1.0%, and for toolmark evidence it is

approximately 1.3%." Ibid. An individual examiner's

error rate should be considered in each case. Ibid.

[Ghigliotty, 463 N.J. Super. at 362-65 (third alteration

in original) (emphasis added) (citations omitted and

reformatted).]

Here, the record amply supports the admission of Clayton's testimony.

Contrary to defendant's argument, Clayton credibly testified that the AFTE

method of identification can be tested. Clayton explained:

Yes. It can be tested. So, the basic premise of

what we do is, we're looking at tool-marks. We're

evaluating tool-marks, and we're trying to determine if

that tool-mark was made by a specific tool. For me as

a firearms examiner, firearms identification falls under

tool-mark identification in the sense that a firearm is a

tool, no different than a hammer, a cutting tool, a

screwdriver, in the sense that a harder object is going

to mark a softer object that it comes in contact with.

The softer objects that a gun comes into contact

with would be a bullet going down the steel barrel of a

firearm. A harder object, that barrel, is marking the

softer object, the bullet, the projectile. The other object

that it's going to come in contact with in [sic] a firearm

is that discharge cartridge case. Again, there's

microscopic imperfections inside that gun from the

manufacturing process. It's going to mark that softer

cartridge case . . . with tool-marks.

There[ have] been numerous studies that have

been done, starting back in 1970, [by] Monte Lutz . . . .

He took two barrels that were consecutive to the

A-2793-22

35

manufacturer and put them on revolvers, and he was

able to discharge bullets from those two barrels, . . .

which were consecutively manufactured, and you're

able to identify which bullet came out of which barrel.

And that's the whole premise, that tool-marks can be

identified back to the source that they came from,

because of those individual imperfections inside either

the barrel of the firearm or the chamber, or other parts

of the firearm.

From 1970 to 1995, there have been eight other

empirical studies of consecutively-made manufactured

barrels, barrels that are made one by the other, and you

can consistently identify tool-marks back to the source

that it came from. Since '95, there[ have] been

numerous other studies, whether it's consecutive-

manufactured barrels or slides or cartridge cases, other

tool-marks where you can consistently identify a tool-

mark back to the source that it came from.

Equally unavailing is defendant's contention that the State failed to

present studies supporting the error rates. On the contrary, Clayton testified that

"[s]ince 1993, there have been [twenty-five] error rate studies that have been

published." Clayton also explained the prevailing error rate and described the

maintenance standards within the unit. As to the error rate studies, he testified:

[The studies] include examiners of different

experience, some with a lot of experience, some who

are new, different types of ammunition, different types

of firearms, different types of models. And it's

consistently across the board with these error rate[]

studies, it's approximately 1% or less than 1%. The

most recent studies that have come out within the last

several years, there's the Baldwin study, the Jamie

A-2793-22

36

Smith study, the Keisler study, [and the Federal Bureau

of Investigation] Aim study, [and with] all these error

rate[] studies, which include examiners, it's

consistently low, approximately 1%, less than 1% error

rate.

Regarding the maintenance standards, he explained:

[W]e have standards within our unit, specifically to . . .

prevent error. We do the best that we can to prevent

error. Each examiner, I myself, we get yearly

proficiency testing. So, whether it's through . . .

Collaborative Testing Standards, or in-house testing,

. . . each examiner goes through yearly proficiency

testing. In our training, before you do your own

examinations, you go through a proficiency test.

Also, anytime we do microscopic comparison

work, bullets or shells, our work is also reviewed

microscopically by another examiner who doesn't know

the results or conclusions of our results. They do it

blind. And again, that's just another way to ensure that

we're not putting out errors. Also, one of . . . our

standards and controls that we have within the unit, we

take detailed notes when we do our comparisons, and

we also take photomicrographs of our conclusions.

And this is all in an attempt to reduce the possibility

that we put an error out, or a misidentification out. [7]

Clayton also addressed the general acceptance of the AFTE method of

identification, stating that "we all use that same methodology when we're talking

7

Contrary to defendant's claim of inadequate supporting documentation,

Clayton added that there was "administrative and technical review" of "every

report" produced by the unit to ensure that all conclusions "are supported or

documented by either notes or photomicrographs."

A-2793-22

37

about comparison work." Clayton explained the robust history of its general

acceptance as follows:

In our field, doing the microscopic comparison

work, it's been around since the mid-1920s. You had

the Sacco-Vanzetti trial, St. Valentine's Day Massacre,

even when you had the John F. Kennedy

[a]ssassination. You were able to match those bullets

back to the particular firearm, Lee Harvey Oswald's

rifle. So, doing this comparison work in our field has

been around for almost a century. But as long as you're

following, if you're properly trained, following AFTE

methodology, utilizing that theory of identification,

. . . it's a sound scientific standard that we adhere to.

As the judge pointed out, defendant's arguments go to the weight and

credibility of Clayton's testimony, not its admissibility. However, as our

Supreme Court stressed, the focus is on the "principles and methodology, not on

the conclusions that they generate." Olenowski I, 253 N.J. at 147 (quoting

Daubert, 509 U.S. at 595). Here, the principles and methodology are clearly

sound.

Next, we turn to defendant's Confrontation Clause challenge. Defendant

argues that his "right to confrontation was violated because Clayton

impermissibly and repeatedly told the jury that another ballistics examiner came

to the exact same conclusion as him," constituting inadmissible hearsay.

Because defendant raises this issue for the first time on appeal, we review for

A-2793-22

38

plain error and determine if the alleged error is "clearly capable of producing an

unjust result." State v. Montalvo, 229 N.J. 300, 320-21 (2017) (quoting R. 2:10-

2); see State v. Reeds, 197 N.J. 280, 298 (2009) ("[W]hen counsel fails to object

to offensive testimony, we . . . apply the plain error standard of review . . . .").

"The mere possibility of an unjust result is not enough." State v.

Funderburg, 225 N.J. 66, 79 (2016). Instead, plain error "is a 'high bar,'

requiring reversal only where the possibility of an injustice is 'real' and

'sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached.'" State v. Trinidad, 241 N.J. 425,

445 (2020) (citation omitted) (first quoting State v. Santamaria, 236 N.J. 390,

404 (2019); and then quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Indeed, our Supreme Court has "cautioned that 'rerun[ning] a trial when

the error could easily have been cured on request[ ] would reward the litigant

who suffers an error for tactical advantage either in the trial or on appeal.'" State

v. Singh, 245 N.J. 1, 13 (2021) (alterations in original) (quoting Santamaria, 236

N.J. at 404-05). Thus, "[t]o determine whether an alleged error rises to the level

of plain error, it 'must be evaluated "in light of the overall strength of the State's

case."'" Id. at 13-14 (quoting State v. Sanchez-Medina, 231 N.J. 452, 468

A-2793-22

39

(2018)). Further, the burden is on the defendant to show plain error. State v.

Weston, 222 N.J. 277, 295 (2015).

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

Paragraph 10 of the New Jersey Constitution guarantee that, in a criminal trial,

the accused has the right 'to be confronted with the witnesses against him [or

her].'" State v. Williams, 219 N.J. 89, 98 (2014). To that end, "[t]he

Confrontation Clause 'prohibit[s] the use of out-of-court testimonial hearsay,

untested by cross-examination, as a substitute for in-court testimony.'" Ibid.

(second alteration in original) (emphasis omitted) (quoting State in the Int. of

J.A., 195 N.J. 324, 342 (2008)).

Nonetheless,

[t]he right of confrontation, like other

constitutional rights, may be waived by the accused.

The Constitution does not compel a criminal defendant

to insist that the State call a live witness who might do

damage to his [or her] case. See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 328 (2009) ("It is

unlikely that defense counsel will insist on live

testimony whose effect will be merely to highlight

rather than cast doubt upon the forensic analysis.").

Defense counsel, many times as a matter of trial

strategy, will refrain from objecting to hearsay that may

inure to the advantage of the defendant. Because

counsel and the defendant know their case and their

defenses, they are in the best position to make the

tactical decision whether to raise a Confrontation

Clause objection. See United States v. Moon, 512 F.3d

A-2793-22

40

359, 361 (7th Cir.) ("That it may be to defendants'

advantage to accept the hearsay version of evidence

makes it problematic to entertain a Crawford [8] claim

via the plain-error [standard] . . . ."), cert. denied, 555

U.S. 812 (2008); State v. Nyhammer, 197 N.J. 383,

413-14 (finding no Confrontation Clause violation

where defendant chose "strategic course" not to cross-

examine victim about accusations in videotaped

interview), cert. denied, 558 U.S. 831 (2009).

It therefore makes perfect sense that "[t]he

defendant always has the burden of raising [a]

Confrontation Clause objection." Melendez-Diaz, 557

U.S. at 327; see also United States v. Maxwell, 724

F.3d 724, 728 (7th Cir. 2013) ("[T]he strategic decision

to demand live testimony is the defendant's choice to

make, and one that many defendants . . . opt to forego—

sometimes for good reasons."). It is the defendant's

choice "to assert (or forfeit by silence) [the]

Confrontation Clause right." Melendez-Diaz, 557 U.S.

at 326.

[Williams, 219 N.J. at 98-99 (omissions and fourth,

fifth, and seventh alterations in original) (emphasis

omitted) (citations reformatted).]

In Williams, defense counsel declined to object when the State offered a

forensic pathologist to testify on behalf of another pathologist's autopsy report.

Id. at 100-01. Accordingly, the expert was permitted to testify that through his

review of the other expert's report who performed the autopsy, he "was able to

reach independent conclusions about both the manner and cause of" death. Id.

8

Crawford v. Washington, 541 U.S. 36, 51 (2004).

A-2793-22

41

at 96. The Court held that the defendant's failure to object constituted a waiver

of his right to confrontation and was perhaps attributable to defense strategy, or,

at a minimum, barred by the invited error doctrine. Id. at 99-101. The Court

therefore "decline[d] to address the merits of [the] defendant's Confrontation

Clause arguments." Id. at 101. Applying those principles, we reach the same

conclusion here and decline to address the merits of defendant's Confrontation

Clause claim.9

III.

In Point II, defendant argues that the judge improperly permitted "lay

opinion testimony from two police witnesses" in violation of N.J.R.E. 701 when

Raine opined that the surveillance videos all showed the same person and

Corona opined that the person in the videos was defendant. Invoking violations

of his right to due process and a fair trial, defendant claims that admission of

these highly prejudicial lay opinions warrant reversal of his convictions because

Raine impermissibly narrated content of the surveillance videos and Corona had

9

In any event, "[a]t present, our case law permits . . . a single, or even substitute,

witness to testify and explain the results of an out-of-court data analysis, when

the individual can 'provide the independent "verification of the data and

results."'" State v. Carrion, 249 N.J. 253, 271 (2021) (quoting State v. Bass, 224

N.J. 285, 319 (2016)).

A-2793-22

42

insufficient prior encounters or familiarity with defendant to permit the

identification.

Lay opinion testimony is admissible subject to two conditions set forth in

N.J.R.E 701. First, the lay witness's opinion must be "rationally based on the

witness' perception;" second, the opinion must "assist in understanding the

witness' testimony or determining a fact in issue." N.J.R.E. 701. To satisfy the

first condition, the "witness must have actual knowledge, acquired through his

or her senses, of the matter to which he or she testifies." State v. Sanchez, 247

N.J. 450, 466 (2021) (quoting LaBrutto, 114 N.J. at 197). The second condition

limits lay testimony only to that which will "assist the trier of fact either by

helping to explain the witness's testimony or by shedding light on the

determination of a disputed factual issue." Id. at 469 (quoting Singh, 245 N.J.

at 15); see also State v. Higgs, 253 N.J. 333, 363 (2023) (same). The second

condition therefore precludes "lay opinion on a matter 'as to which the jury is as

competent as [the witness] to form a conclusion.'" Sanchez, 247 N.J. at 469-70

(alteration in original) (quoting State v. McLean, 205 N.J. 438, 459 (2011)).

Our Supreme Court has considered how our case law has applied N.J.R.E.

701 to law enforcement officers narrating video recordings or identifying the

A-2793-22

43

defendant as the individual depicted in a photograph or video relating to the

offense charged:

In State v. Lazo, we excluded the opinion testimony of

a law enforcement officer unacquainted with a

defendant who stated that he included a photo of the

defendant in a photo array "[b]ecause of his similarities

to the suspects that were described by the victim." 209

N.J. 9, 19 (2012) (alteration in original). We held that

"[n]either a police officer nor another witness may

improperly bolster or vouch for an eyewitness'

credibility and thus invade the jury's province." Id. at

24.

In Singh, however, we affirmed the admission of

an arresting officer's lay opinion that the sneakers worn

by the suspect in surveillance video looked similar to

sneakers worn by the defendant at the time of his arrest,

given the officer's direct observation of the defendant's

sneakers. 245 N.J. at 17-18. We held in Singh that the

officer's reference to the suspect in the video as "the

defendant" was improper in light of the dispute about

the identity of the suspect, but that the reference was

"fleeting" and did not amount to plain error. Ibid.

In Sanchez, we reversed the trial court's

exclusion of the defendant's parole officer's

identification of the defendant in a photograph taken

from surveillance video, given the parole officer's many

in-person meetings with the defendant and the capacity

of her identification testimony to assist the jury. 247

N.J. at 469-75. There, the parole officer's identification

derived from her personal perception, which enabled

her to identify the defendant in the surveillance

photograph "more accurately than a jury could." Id. at

474.

A-2793-22

44

....

In Higgs, we barred the lay opinion of a law

enforcement officer who was not present at a shooting

and testified that an object depicted in a surveillance

video appeared to be a firearm. 253 N.J. at 365-67.

Applying N.J.R.E. 701's "perception" prong, we noted

that the detective "had no prior interaction or

familiarity with either defendant or the firearm in

question" and that "[h]is testimony was based entirely

on his lay opinion from watching the video." Id. at 366.

We reasoned that "[t]he video was in evidence and the

jury should have been permitted to view it slowly,

frame by frame, to determine for themselves what they

saw on screen, without the influence of opinion

testimony by an officer who was not there at the time."

Id. at 367. We held that the officer's testimony had

invaded the jury's province. Id. at 366-67. We did not,

however, "rule out the possibility of allowing a law

enforcement officer to testify about a sequence in a

video that is complex or particularly difficult to

perceive." Id. at 367.

In State v. Watson, . . . we addressed the

admissibility of a police officer's narration of a video

of a bank robbery at which the officer was not present,

and held that the narration exceeded the bounds of

proper lay opinion testimony under N.J.R.E. 701 and

N.J.R.E. 602 when the officer provided commentary

about the suspect's actions during the robbery. Watson,

254 N.J. 558, 606-08 (2023). We disapproved of

portions of the officer's narration testimony that

reflected his subjective belief of what occurred in the

surveillance video, including observations about

alleged efforts by the suspect not to touch surfaces

during the robbery and a comment that "the suspect was

very careful in . . . not attempting to leave any type of

evidence behind." Id. at 608.

A-2793-22

45

[State v. Allen, 254 N.J. 530, 544-46 (2023) (alterations

and last omission in original) (citations reformatted).]

After reviewing other jurisdictions' handling of the subject, in Watson, the

Court held that "Rules 701, 602, and 403 provide a framework for the admission

of narration evidence" by "a witness who did not observe events in real time."

Watson, 254 N.J. at 600, 602. The Court instructed:

[W]hether narration evidence is helpful turns on the

facts of each case. Rule 701's helpfulness prong can be

satisfied when an investigator draws attention to key

details that might be missed, or helps jurors follow

potentially confusing, complex, or unclear videos that

may otherwise be difficult to grasp. Counsel may offer

other reasons to allow limited narration testimony,

which courts should evaluate with care.

Narration testimony must also comply with N.J.R.E.

403. The rule guards against the risk of "[u]ndue

prejudice, confusion of issues, . . . misleading the jury,

. . . [and] needless presentation of cumulative

evidence." Placing appropriate limits on narration

testimony can help avoid those problems.

[Watson, 254 N.J. at 602 (omissions and last two

alterations in original).]

The Court held that such testimony "must accord with specific limits."

Ibid. First, "continuous commentary during a video by an investigator whose

knowledge is based only on viewing the recording" must be avoided. Id. at 603.

Second, investigators may "describe what appears on a recording but may not

A-2793-22

46

offer opinions about the content. In other words, they can present objective,

factual comments, but not subjective interpretations." Ibid. "Third,

investigators may not offer their views on factual issues that are reasonably

disputed," as "[t]hose issues are for the jury to decide." Ibid. Finally, while "lay

witnesses generally may offer opinion testimony under Rule 701 based on

inferences, investigators should not comment on what is depicted in a video

based on inferences or deductions, including any drawn from other evidence.

That type of comment is appropriate only for closing argument." Id. at 604. The

Court explained that, "[c]onsistent with those principles, an investigator who

carefully reviewed a video in advance could draw attention to a distinctive shirt

or a particular style of car that appear[s] in different frames, which a jury might

otherwise overlook," if those issues are not in dispute. Ibid.

Applying these principles, we are satisfied that both Raine and Corona

testified consistently with the governing case law and we discern no abuse of

discretion in the judge permitting the testimony. As to Corona, following a

N.J.R.E. 104 hearing, the parties agreed that because Corona's prior encounters

with defendant were law enforcement-related contacts, the jury should be

shielded from the nature of those encounters to avoid prejudice. The judge

summarized the agreement, stating "[t]he idea here is to prevent [the testimony]

A-2793-22

47

from being anything that would . . . present[] to the jury that there were adverse

contacts between [defendant] and law enforcement before [the shooting] and

that[ those contacts were] how he was identified." In accordance with the

agreement, Corona testified before the jury that he worked for a "government

agency" when he encountered the defendant, that he observed him in

Pleasantville two separate times for about thirty seconds each during the

daytime, and that he later identified defendant in a track flyer that was

attempting to identify an individual shown in three photos. Corona never

provided unduly prejudicial testimony by, for example, telling the jury that he

had previously seen pictures of defendant's "mugshot" "on multiple occasions."

Defendant now argues that the prior encounters were not as substantial as

those presented in Sanchez but instead track more closely to the facts of Singh.

Defendant also argues that because defendant's ex-girlfriend identified

defendant on the surveillance video, Corona's testimony was not helpful to the

jury and improperly bolstered Hill's identification. Although the facts in

Sanchez showed a more robust relationship prior to the identification, a robust

relationship is not required by N.J.R.E. 701 or case law. See Sanchez, 247 N.J.

at 469-73 (discussing a range of factors relevant to determining the admissibility

of a law enforcement officer's identification of the defendant under N.J.R.E.

A-2793-22

48

701, including the witness's prior familiarity with the defendant, the defendant's

change in appearance since the alleged offense, the availability of identification

testimony from other witnesses, and the quality of the video recording at issue).

Additionally, Corona's testimony was helpful to the jury because it placed

defendant in Pleasantville in the months prior to the murder. Further, Hill's

credibility was challenged when counsel revealed to the jury that she had a

criminal record and was on probation.

We also find no fault in the admission of Raine's narration testimony.

Defendant argues that Raine improperly offered his opinion about the video

content, including identifying physical characteristics of the driver and the

stolen vehicle, providing a description of the clothing worn by the "individual"

in the videos, and concluding that the videos tracked the same person and the

same vehicle. Defendant asserts that Raine's commentary regarding the

"individual" and "the vehicle" he was tracking was a "critical link" to

demonstrate that the person in the laundromat video was the same person

identified by Hill and Corona in the track flyer.

During his testimony, among other things, Raine introduced video

evidence from thirty locations in three towns. Thirty-six surveillance video clips

were played for the jury. Raine also described the compilation of the track flyer

A-2793-22

49

from stills taken from the videos. Based on our thorough review of the record,

we are satisfied that Raine provided objective, factual descriptions of what was

depicted in the videos and the stills in accordance with the dictates of Watson,

254 N.J. at 602-04. Critically, Raine consistently used neutral language to

describe the individual in the videos as "a person" or "the individual."

Additionally, Raine never said the "person" in Pleasantville was the same person

driving the stolen vehicle, or referred to the "person" in the video as defendant,

as deemed improper in Singh, 245 N.J. at 17-18.

IV.

In Point III, defendant argues that the judge erred in failing to instruct the

jury on the timing of the use of force in connection with the carjacking charge,

given the State's theory that defendant shot the victim to steal his car.

Specifically, defendant asserts the judge was required to instruct the jury that

"defendant must form an intent to steal before or contemporaneously with his

use of force." According to defendant, the omission requires reversal of both

the carjacking and related felony murder convictions.

Our jurisprudence governing appropriate jury charges is well settled.

"Appropriate and proper charges to a jury are

essential for a fair trial." State v. Green, 86 N.J. 281,

287 (1981). The court must "explain the controlling

legal principles and the questions the jury is to decide."

A-2793-22

50

State v. Martin, 119 N.J. 2, 15 (1990). Instructions

demand careful attention and "must provide a

comprehensible explanation of the questions that the

jury must determine, including the law of the case

applicable to the facts that the jury may find."

Montalvo, 229 N.J. at 320 (citations and internal

quotation marks omitted). Proper instruction is so

critical that "erroneous instructions on material points

are presumed to be reversible error." Martin, 119 N.J.

at 15.

[State v. Lora, 465 N.J. Super. 477, 501 (App. Div.

2020) (citations reformatted).]

In assessing the adequacy of a jury instruction, "[t]he charge must be read

as a whole" to determine its overall effect. State v. Torres, 183 N.J. 554, 564

(2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In so doing, "[t]he test

to be applied . . . is whether the charge as a whole is misleading, or sets forth

accurately and fairly the controlling principles of law" with respect to the

relevant issue. State v. Baum, 224 N.J. 147, 159 (2016) (omission in original)

(quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).

"Nevertheless, 'not every failure to do so is fatal.'" State v. Tierney, 356

N.J. Super. 468, 482 (App. Div. 2003) (quoting State v. Bilek, 308 N.J. Super.

1, 10 (App. Div. 1998)); see, e.g. State v. Morton, 155 N.J. 383, 422 (1998)

(explaining that the trial court properly charged the jury because "the facts were

not so complex or confusing as to require an intricate discussion in the charge");

A-2793-22

51

State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999) (holding that "the

charge given, as a whole, was consistent with the factual theories advanced by

the parties"). In addition, the purported error "must be evaluated in light 'of the

overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)

(quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Because defendant failed to object during trial and raises this issue for the

first time on appeal, we again review for plain error. See R. 2:10-2; State v.

Adams, 194 N.J. 186, 206-07 (2008) ("Generally, a defendant waives the right

to contest an instruction on appeal if [the defendant] does not object to the

instructions as required by Rule 1:7-2."). Plain error in a jury charge is "[l]egal

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. Camacho, 218 N.J. 533, 554 (2014) (alteration

in original) (quoting Adams, 194 N.J. at 207).

"Nevertheless, because clear and correct jury instructions are fundamental

to a fair trial, erroneous instructions in a criminal case are 'poor candidates for

rehabilitation under the plain error theory.'" Adams, 194 N.J. at 207 (quoting

Jordan, 147 N.J. at 422-23). Still, if a defendant does not object when a charge

A-2793-22

52

is given, as here, "there is a presumption that the charge was not error and was

unlikely to prejudice the defendant's case." Montalvo, 229 N.J. at 320 (quoting

State v. Singleton, 211 N.J. 157, 182 (2012)).

To evaluate the jury charge, we must first examine the elements of the

offense at issue. N.J.S.A. 2C:15-2(a)(1) defines carjacking as follows:

A person is guilty of carjacking if in the course of

committing an unlawful taking of a motor vehicle . . .

or in an attempt to commit an unlawful taking of a

motor vehicle [the person]:

(1) inflicts bodily injury or uses force upon an

occupant or person in possession or control of a

motor vehicle[.]

....

An act shall be deemed to be "in the course of

committing an unlawful taking of a motor

vehicle" if it occurs during an attempt to commit

the unlawful taking of a motor vehicle or during

an immediate flight after the attempt or

commission.

In instructing the jury on the elements of carjacking, the judge

substantially tracked the Model Jury Charges. See Model Jury Charges

(Criminal), "Carjacking (N.J.S.A. 2C:15-2)" (rev. June 13, 2005). Although

model jury charges "are not binding authority," State v. Bryant, 419 N.J. Super.

15, 28 (App. Div. 2011), "a jury charge is presumed to be proper when it tracks

A-2793-22

53

the model jury charge because the process to adopt model jury charges is

'comprehensive and thorough,'" State v. Cotto, 471 N.J. Super. 489, 543 (App.

Div. 2022) (quoting State v. R.B., 183 N.J. 308, 325 (2005)); see also R.B., 183

N.J. at 325 (instructing trial courts to follow the model jury charges and read

them "in their entirety to the jury"); State v. Whitaker, 402 N.J. Super. 495, 513-

14 (App. Div. 2008) ("When a jury instruction follows the model jury charge,

although not determinative, 'it is a persuasive argument in favor of the charge as

delivered.'" (quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000))).

Defendant relies on State v. Lopez, 187 N.J. 91, 101 (2006), to support

his argument that the judge erred in failing to provide instructions on the timing

of the use of force when delivering the carjacking instruction. In Lopez, our

Supreme Court considered "whether N.J.S.A. 2C:15-1(a) encompasses so-called

'afterthought' robbery—the situation in which a defendant does not formulate

the intent to steal until after force is used." 187 N.J. at 93. The parties presented

varying interpretations of the robbery statute, with the State urging the Court to

accept that the robbery statute should be read broadly to include afterthought

robbery. Id. at 99-101. The Court rejected the State's interpretation, concluding

that "N.J.S.A. 2C:15-1(a) does not encompass afterthought robbery." Id. at 93.

The Court explained:

A-2793-22

54

[O]ur statute requires that the threats or violence be

carried out in furtherance of the intention to commit a

theft. Indeed, the sequence of events is critical; the

intention to steal must precede or be coterminous with

the use of force. That is why a person who has stolen

goods and thereafter uses violence in flight is guilty of

robbery—the intention to commit the theft generated

the violence. That model simply does not work where

a violent fracas occurs for reasons other than theft, and

the perpetrator later happens to take property from the

victim. In the former example, the theft is the reason

for the violence and a robbery has occurred. In the

latter, the violence and the theft are unconnected, and

the perpetrator is guilty of assault and theft but not of

robbery.

[Id. at 101.]

Defendant suggests that the Lopez reasoning should apply with equal

force to the carjacking instruction because the jury could have concluded from

the testimony that the fight in the laundromat parking lot led to the theft of the

car—which is not carjacking—rather than the car theft generating the fight—

which is carjacking. We are unpersuaded by defendant's argument.

Although we previously acknowledged that the carjacking statute

"mirrors" the robbery statute, "[t]he carjacking statute creates a new kind of

robbery that is punishable more severely than robbery under N.J.S.A. 2C:15 -1,

with the specified added element in the carjacking statute of the taking of a

A-2793-22

55

motor vehicle under the circumstances specified in the statute." State v.

Garretson, 313 N.J. Super. 348, 355-56 (App. Div. 1998).

The available legislative history demonstrates the

obvious intent of the Legislature in the enactment of

this statute to combat increased violent acts of

aggression in the taking of occupied motor vehicles

from their occupants. See Press Release, Off. of the

Governor, Governor Signs Law Toughening Penalties

for Carjacking (Aug. 4, 1993).

Our review of the statute and its history

persuades us that the Legislature intended to make

carjacking an all-encompassing offense whenever a

vehicle was taken from its occupant or driven off with

the occupant in it. Our understanding of the statute is

furthered by reference to then Governor Florio's [p]ress

[r]elease, which is instructive, because it reflects his

view of the applicability of this statute whenever a

perpetrator seizes or takes over a vehicle from the

actual possession of its owner or occupant. In his

[p]ress [r]elease when he signed the carjacking statute

into law the Governor was quoted as saying[,] "Any

thug who yanks open a car door and tries to grab the

wheel will go to jail. Count on it[ .] . . ." Such releases

by the Governor may appropriately be considered as

part of the legislative history of the enactment.

[Garretson, 313 N.J. Super. at 357-358 (italicization

omitted) (footnotes omitted) (citation reformatted).]

We are convinced that neither the carjacking statute, the legislative

history, prevailing caselaw, nor the Model Jury Charge support the need for the

timing language suggested by defendant. First, the statutory language broadly

A-2793-22

56

includes an act taken "'in the course of committing an unlawful taking of a motor

vehicle' if it occurs during an attempt to commit the unlawful taking of a motor

vehicle or during an immediate flight after the attempt or commission." N.J.S.A.

2C:15-2(a). This language does not suggest that the jury was required to

pinpoint when defendant firmed up his intention to steal the car. Simply put, if

injury is inflicted or force is used during an attempt to steal a vehicle, it is a

carjacking. N.J.S.A. 2C:15-2(a). Here we have just that—a fatal shooting

followed by the theft of the victim's car. We reject defendant's wordplay as well

as the concept of an afterthought carjacking.

Defendant's argument also ignores the fact that the State adduced ample

proof of defendant's conduct prior to the murder and carjacking that evinced his

intent. Through Figaro's testimony, the State demonstrated defendant's intent to

steal a car prior to Smith's murder. Figaro testified that moments before the

shooting, a "dark[-]skinned" male in dark clothing approached the passenger

side of her car, attempted to open the door, and claimed that "someone was

following him." Figaro testified that after defendant was unsuccessful in gaining

access to her car, he walked toward the laundromat. Moments later, she heard

gunfire. Figaro's testimony was unchallenged, and the jury was free to accept

that defendant was the same man who approached Figaro.

A-2793-22

57

Conversely, there were no facts presented to the jury to support

defendant's counter-theory of a fight between Smith and defendant that turned

into an afterthought car theft. In fact, the eyewitness account of the events

provided by Thenor confirmed the elements of a carjacking. From her bus stop,

Thenor watched two men fighting until they fell to the ground. According to

Thenor, only one man got up and drove away in the car. We therefore discern

no error in the charge as given and no basis to intervene.

V.

In Point IV, defendant argues that the judge erred in denying his motion

for a pretrial Wade/Henderson 10 hearing to explore the reliability of his ex-

girlfriend's identification from blurry photos extracted from a surveillance

video. He argues that Hill was only able to identify him in the photos after the

police engaged in suggestive investigatory acts a week-and-a-half after the

shooting. He urges that the investigative procedure was "inherently suggestive

because it was a show-up."

Pre-trial, defendant moved for a Wade/Henderson hearing to challenge the

reliability of Hill's identification and assess impermissible suggestiveness from

10

State v. Henderson, 208 N.J. 208 (2011).

A-2793-22

58

the interviews conducted prior to the identification. Following oral argument,

the judge issued an order and written opinion on December 28, 2022,11 denying

defendant's request for an evidentiary hearing and ruling that Hill's identification

was admissible. In the opinion, the judge recounted that Hill was interviewed

by detectives on November 24, 2021. Hill advised the detectives that she had

been in a relationship with defendant since the end of 2019 but had not seen

defendant since the day of the murder. Hill described what defendant was

wearing when she last saw him and was shown a photograph, which she

identified as defendant. Hill was also shown photographs from the surveillance

video from the scene of the shooting and identified the male in the photographs

as defendant. Hill stated defendant was wearing the same clothing she had last

seen him wearing.

The judge determined defendant could not meet the "threshold burden of

providing some evidence of impermissible suggestiveness" to warrant a hearing.

The judge explained that "[m]ere speculation about whether there was a pre -

interview interview that occurred that might have been suggestive [was]

insufficient based on the totality of circumstances herein." According to the

11

The judge also rendered an oral opinion on the record on December 23, 2022.

The oral opinion mirrored the written opinion.

A-2793-22

59

judge, "[t]hat speculation does not satisfy . . . [d]efendant's burden and does not

support the granting of an evidentiary hearing."

The judge continued:

Here, . . . [d]efendant concedes that there is a

recording of . . . Hill's statement that was provided to

him in discovery. There has been no proffer, argument,

or evidence substantiating that there had been a pre-

interview interview that was impermissibly suggestive

or in any other way violative of . . . [d]efendant's

[c]onstitutional rights. This was not a show-up. It was

a confirmatory identification. As someone who had

been in an intimate relationship with . . . [d]efendant for

nearly two years leading up to the instant incident, . . .

Hill could not only easily recognize him by his

appearance, but could provide significant details about

his clothing, tattoos, behavior, and other confirmatory

information. Under such circumstances, the facts that

. . . Hill may have been shown a photograph of . . .

[d]efendant, which was unrelated to the instant offenses

and from which she identified her boyfriend, . . .

[d]efendant, and that that may have occurred prior to

her reviewing photos from the surveillance footage, did

not transform this confirmatory identification into a

show-up. There is no evidence that such investigatory

actions were impermissibly suggestive relative to her

identification of . . . [d]efendant. The fact that . . . Hill

was interviewed by law enforcement in their vehicle,

from which she was free to leave at any time, does not

substantiate a claim that she was coerced into

identifying . . . [d]efendant. As contemplated in [State

v. Pressley, 232 N.J. 587, 592-93 (2018)], her

confirmatory identification is not considered

suggestive. The facts surrounding the identification by

. . . Hill of . . . [d]efendant go much further than th[ose]

contemplated in Pressley, in which the Court provided

A-2793-22

60

for a neighbor, or an acquaintance only known by a

street name[,] as examples of confirmatory

identifications. Given their intimate relationship, . . .

Hill's identification of . . . [d]efendant is even more

reliable than what is permitted under Pressley.

We agree with the judge's ruling and affirm substantially for the reasons

articulated by the judge.

To be entitled to a Wade/Henderson hearing, a defendant must first proffer

"some evidence of suggestiveness" that could result in a misidentification.

Henderson, 208 N.J. at 238, 288. "As the Supreme Court explained, 'reliability

is the linchpin in determining the admissibility of identification testimony.'" Id.

at 238 (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). In Pressley,

our Supreme Court addressed how the risk of misidentification is tempered when

the identification is a confirmatory identification. 232 N.J. at 590-93. The Court

explained that "[p]olice will, on occasion, display a single photograph to a

witness in an effort to confirm the identity of a perpetrator," which is "typically

limit[ed] . . . to situations in which the perpetrator is previously known to or

acquainted with the witness." Id. at 593 (quoting Nat'l Rsch. Council,

Identifying the Culprit: Assessing Eyewitness Identification, 28 (2014)). Thus,

"[a] confirmatory identification occurs when a witness identifies someone he or

she knows from before but cannot identify by name," or can "only [identify] by

A-2793-22

61

a street name." Id. at 592-93. Critically, "a 'confirmatory' identification . . . is

not considered suggestive." Id. at 592.

"[W]e are mindful that the trial court's findings at the hearing on the

admissibility of identification evidence are 'entitled to very considerable

weight.'" Adams, 194 N.J. at 203 (quoting State v. Farrow, 61 N.J. 434, 451

(1972)). That said, "the trial court's findings that photographic identification

procedures were reliable should not be disturbed if there is sufficient credible

evidence in the record to support the findings." Ibid.

Here, the judge's ruling is amply supported by the record. See People v.

Reuben, 626 N.Y.S.2d 251, 252-53 (N.Y. App. Div. 1995) (finding a girlfriend's

familiarity with the defendant to create a confirmatory identification and no need

for a Wade hearing). We therefore reject defendant's arguments challenging the

quality of the photo, the way Hill was questioned, and any perceived lack of

instructions from the police that she should not feel compelled to identify him.

VI.

Defendant's remaining Points both address his sentence. In Point V,

defendant argues that the judge "misunderstood the sentencing range and

imposed an excessive" forty-three-year NERA sentence for murder. He

contends the judge erred in accepting "the State's argument that only an

A-2793-22

62

extended-term sentence could be imposed." Defendant also argues that the

judge "double-count[ed]" his prior record of conviction when using it as a basis

to find him eligible for an extended-term and as a factor to increase the length

of his sentence.

In Point VI, as supplemented by his additional citation letter submitted

pursuant to Rule 2:6-11(d), defendant argues that under our recent decision in

State v. Carlton, 480 N.J. Super. 311 (App. Div. 2024), "the imposition of a

persistent-offender extended-term sentence violated his Fifth and Sixth

Amendment rights." Defendant asserts that, "as in Carlton, that extended-term

must be vacated and remanded for a jury to make the required findings or for

the State to forego pursuing the extended term." Because this latter issue is

dispositive, we address it first.

Carlton comes on the heels of Erlinger v. United States, in which the

United States Supreme Court held that "the Fifth and Sixth Amendments

generally guarantee a defendant the right to have a unanimous jury find beyond

a reasonable doubt any fact that increases his [or her] exposure to punishment."

602 U.S. 821, 828 (2024). The Supreme Court further stated that "[v]irtually

'any fact' that '"increase[s] the prescribed range of penalties to which a criminal

defendant is exposed"' must be resolved by a unanimous jury beyond a

A-2793-22

63

reasonable doubt (or freely admitted in a guilty plea)." Id. at 834 (second

alteration in original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490

(2000)).

Under N.J.S.A. 2C:44-3(a), upon application of the prosecuting attorney,

a person may be sentenced to an extended term of imprisonment if the individual

"has been convicted of a crime of the first, second or third degree and is a

persistent offender." The statute defines a "persistent offender" as:

[A] person who at the time of the commission of the

crime is [twenty-one] years of age or over, who has

been previously convicted on at least two separate

occasions of two crimes, committed at different times,

when he [or she] was at least [eighteen] years of age, if

the latest in time of these crimes or the date of the

defendant's last release from confinement, whichever is

later, is within [ten] years of the date of the crime for

which the defendant is being sentenced.

[Ibid.]

In Carlton, we acknowledged that Erlinger abrogates the rule that allowed

a sentencing court to determine the factual predicates for eligibility for enhanced

sentencing under the persistent offender statute. 480 N.J. Super. at 325-26. We

held that "a unanimous jury must find beyond a reasonable doubt that all five of

the above-enumerated factual predicates are present, or the defendant must

A-2793-22

64

admit these predicates as part of a knowing and voluntary waiver of the right to

a jury trial with respect to extended-term eligibility." Id. at 328-29.

We further concluded that application of the holding in Erlinger to the

persistent offender statute, N.J.S.A. 2C:44-3, applies retroactively to pipeline

cases. Carlton, 480 N.J. Super. at 317; see also Griffith v. Kentucky, 479 U.S.

314, 328 (1987) ("We therefore hold that a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending

on direct review or not yet final, with no exception for cases in which the new

rule constitutes a 'clear break' with the past.").

We also rejected the State's argument that the harmless constitutional error

doctrine applies to the pipeline cases to which Erlinger is retroactively applied.

Carlton, 480 N.J. Super. at 329-38. We based that holding on "the Erlinger

majority's unambiguous rejection of the notion that overwhelming evidence

obviates the need to have a jury make the decision" that the elements of an

extended-term statute have been met. Id. at 336. We see no reason to depart

from that holding here.

On the State's application, the judge found defendant qualified for

sentencing as "a persistent offender" under N.J.S.A. 2C:44-3(a) based on his

A-2793-22

65

criminal history which included a 2014 Delaware conviction "for drug dealing"12

and a 2021 New Jersey conviction for "possession of a handgun without . . . a

permit." After appropriate mergers, the judge sentenced defendant to a

discretionary extended term of forty-three years in prison, subject to NERA, on

count two, and a concurrent fifteen-year term of imprisonment, subject to

NERA, on count three. In support, the judge found aggravating factors three,

six, and nine based on the "substantial risk" of re-offense, defendant's significant

criminal history, 13 and the "need" for deterrence. See N.J.S.A. 2C:44-1(a)(3),

(6), (9). The judge found no mitigating factors and concluded that "the

aggravating factors prepondera[ted] over the lack of any mitigating factors."

Affording Erlinger pipeline retroactivity to defendant's direct appeal of

his sentence, we vacate defendant's extended-term sentence and remand for

resentencing consistent with Erlinger and Carlton. If the State seeks to impose

an extended-term sentence on remand, the court shall, in the absence of a

knowing waiver of defendant's right to a jury trial, hold a jury trial on the murder

12

"A conviction in another jurisdiction can support a discretionary imposition

of an extended term." State v. Copeman, 197 N.J. Super. 261, 265 (App. Div.

1984) (citing N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:44-4(c)).

13

The judge pointed out that defendant also had seven prior "misdemeanors or

disorderly persons offenses" in Delaware and New Jersey, consisting of

assaultive, drug, and weapons possession-related charges.

A-2793-22

66

charge limited to the question of whether defendant is a persistent offender. See

N.J.S.A. 2C:44-3(a). The State shall have the burden of proving, beyond a

reasonable doubt, the required persistent offender elements.

Because the extended-term sentence is integral to the overall sentence, we

need not address defendant's remaining sentencing arguments other than to point

out that in State v. Tillery, our Supreme Court held that there was "no error in

the trial court's reliance on defendant's criminal record both to determine

defendant's 'persistent offender' status under N.J.S.A. 2C:44-3(a), and to support

the court's finding of aggravating factors three, six, and nine." 238 N.J. 293,

327 (2019); see also State v. McDuffie, 450 N.J. Super. 554, 576 (App. Div.

2017) (rejecting "as lacking merit" the defendant's claim that the court

"impermissibly double-counted his criminal record, when granting the State's

motion for a discretionary extended term, and again, when imposing aggravating

factor six, which considers the extent and seriousness of a defendant's prior

record").

Further, once the determination is made that defendant meets the statutory

eligibility criteria for persistent-offender status for sentencing to an extended

term,

the range of sentences, available for imposition, starts

at the minimum of the ordinary-term range and ends at

A-2793-22

67

the maximum of the extended-term range. By

recognizing that the top of the extended-term range is

the "top" applicable to a persistent offender, we do not

make mandatory a defendant's sentencing within the

enhanced range. Rather, we merely acknowledge that

the permissible range has expanded so that it reaches

from the bottom of the original-term range to the top of

the extended-term range. Where, within that range of

sentences, the court chooses to sentence a defendant

remains in the sound judgment of the court—subject to

reasonableness and the existence of credible evidence

in the record to support the court's finding of

aggravating and mitigating factors and the court's

weighing and balancing of those factors found. On

appellate review, the court will apply an abuse of

discretion standard to the sentencing court's

explanation for its sentencing decision within the entire

range.

[State v. Pierce, 188 N.J. 155, 169-70 (2006).]

In sum, we affirm defendant's convictions, vacate his extended-term

sentence, and remand for further proceedings, to include resentencing.

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

A-2793-22

68