State of New Jersey v. Jennifer Sweeney

NOT FOR PUBLICATION WITHOUT THE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-3186-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JENNIFER SWEENEY,

Defendant-Appellant.

________________________

Argued April 16, 2024 – Decided May 20, 2024

Before Judges Mayer, Whipple and Augostini.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No. 16-12-

1998.

Robin Kay Lord argued the cause for appellant (Law

Offices of Robin Kay Lord, LLC, attorneys; Robin Kay

Lord and Monika Mastellone, on the briefs).

Monica do Outeiro argued the cause for respondent

(Raymond S. Santiago, Monmouth County Prosecutor,

attorney; Monica do Outeiro, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant Jennifer Sweeney appeals from a May 6, 2022 judgment of

conviction and sentence imposed after a jury found her guilty of murder and

related offenses. We affirm the conviction but remand for resentencing.

We recite the facts from the pre-trial evidentiary hearings and the trial

testimony.

Defendant met the victim, Tyrita Julius, through a social club for

motorcycle enthusiasts known as the Ruff Ryders. Defendant and Julius dated

for several years.

In 2015, Julius lived in Linden with her son and daughter. At that time,

Julius's daughter attended high school, and her son attended a local college.

Julius's mother and other family members also lived in Linden.

In August 2015, Julius met Hasan Nicely at a Ruff Ryders event. Nicely

was a member of another social club for motorcycle afficionados. The two

exchanged telephone numbers, started "talking," and began dating.

Because defendant shared a cellular telephone plan with Julius, defendant

monitored Julius's cell phone activities. Defendant, upset Julius was interested

in someone else, contacted Nicely using a blocked cell phone number.

Defendant also looked up the phone numbers of other individuals who Julius

contacted on her cell phone.

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Around mid-November 2015, Julius broke up with defendant and

continued her relationship with Nicely. Based on text messages uncovered

through a lawful search of defendant's cell phone, defendant was unhappy about

the breakup and Julius's new relationship.

On November 21, 2021, Nicely and Julius attended a Ruff Ryders event

together. A Ruff Ryders member noticed defendant become visibly angry when

Julius and Nicely danced together.

The first attempt on Julius's life occurred on November 24, 2015. On that

date, Julius arranged to attend her son's college basketball game with her

daughter and Nicely. Around 7:00 p.m. that evening, Julius planned to drive

everyone to the basketball game. Julius walked out of her house to her son's car

parked nearby, sat in the driver's seat, and waited for her daughter to finish

getting ready. While walking to the car, the daughter saw a "chunky," "[k]ind

of husky" Black man approach.

When the daughter got into the car, the man pulled out a gun, pointed it at

the car's windows, and began shooting. Julius and her daughter were seated in

the front driver and front passenger seats. Both women were struck by bullets.

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Even though she had been shot, Julius drove the car to escape the shooter.

The car crashed into a nearby stop sign and telephone pole. At 7:16 p.m., the

daughter called 9-1-1.

Police and medical personnel responded. The police spoke to the

daughter, processed the crime scene, and canvassed the area for witnesses and

evidence.1 Witnesses gave the police a similar description of the shooter as the

description provided by Julius's daughter.

Emergency medical personnel took Julius to the hospital. She had been

shot multiple times and suffered significant injuries, requiring extensive

surgery.2 During the surgery, the doctors recovered a nine-millimeter bullet

from Julius's body. 3 Julius remained in the hospital for thirty-nine days.

Because Julius did not want to see anyone, her mother restricted hospital

visitors. However, family, certain friends, and defendant were permitted to visit

Julius after the shooting.

1

The police found eight nine-millimeter shell cases at the scene. After

conducting tests, the police determined the shell casings were fired from the

same weapon.

2

Even after the hospital discharged her on January 2, 2016, Julius had difficulty

walking and using her right arm.

3

During Julius's autopsy, the medical examiner uncovered three additional

bullets. The recovered bullets were consistent with a nine-millimeter weapon.

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While Julius remained in the hospital, defendant told some of Julius's

friends that she and Julius were dating again. Defendant also claimed she looked

at engagement rings and planned to propose to Julius on a trip to Puerto Rico.

During and after Julius's hospital stay, defendant continued to use information

from their shared cellular telephone plan to discover men with whom Julius

communicated, including Nicely.

Detective Kenneth Mikolajczyk with the Linden Police Department led

the investigation into the November 2015 shooting. He took a video recorded

statement from defendant on December 17, 2015.

During this statement, defendant told Mikolajczyk that she and Julius

were together for "[a]lmost three years." Upon questioning by the detective,

defendant admitted she and Julius broke up a few days before the shooting.

However, defendant denied she and Julius had a fight.

Defendant told the detective she was at the Woodbridge Mall around 7:00

p.m. with a friend the night of the shooting. According to her statement,

defendant was planning to attend a Ruff Ryders event at 9:00 p.m. that evening.

Defendant told Mikolajczyk she was driving to the Ruff Ryders event and

received a call from a club member saying Julius had been shot. Defendant

explained she went straight to the hospital, along with her shopping friend.

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Later, defendant drove the friend home and returned to the hospital. Defendant

left the hospital around one or two o'clock in the morning. 4

Between January 2016 and March 2016, Julius wanted to "remain[]

friends" with defendant. At that time, Julius's daughter lived with an aunt in

New York because Julius feared for her child's safety. Julius went to visit her

daughter in New York. Due to Julius's physical limitations as a result of the

shooting, Julius's mother arranged for a train attendant to assist Julius during the

trip to New York. Julius returned to New Jersey on March 6, 2016.

On March 8, 2016, Julius went missing. That morning, Julius and a friend

from Linden ran errands. Julius never told her companion she planned to see

defendant later that day.

Later that same morning, defendant picked up Julius, and the two women

spent the day together. Although defendant's friends explained defendant was

excited to see Julius after she returned from upstate New York, defendant's

cellular telephone records told a different story. Defendant continued to search

Julius's cell phone records to learn who Julius contacted and who contacted

4

After defendant's arrest in August 2016, the police discovered information

from cell phone records contradicting defendant's statement to Mikolajczyk as

to her whereabouts at the time of the November 2015 shooting.

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Julius. Defendant even searched Julius's cell phone information on the morning

of March 8.

Julius's mother texted with Julius at 4:44 p.m. on March 8. Thereafter,

two friends tried to call Julius's cell phone, but the calls went to voicemail.

At 7:47 p.m. on March 9, defendant called her friend Donna, explaining

she took Julius to the Long Branch train station. Defendant asked if she could

visit with Donna that evening. Donna replied she was not home, but her husband

was in the house. Although defendant never previously visited Donna's husband

without Donna present, defendant did so around 8:15 p.m. that evening.

While at Donna's house, defendant told Donna's husband about spending

the day with Julius. She also told him she left Julius at the Long Branch train

station to catch a 7:15 p.m. train to Linden and gave Julius $100 cash, a shirt,

and cookies. During their conversation, defendant claimed she did not drive

Julius to Linden because Julius "felt bad" asking defendant to drive from Long

Branch to Linden.

Donna later called defendant to see if she was still at the house. Defendant

explained she left the house and then told Donna about spending the day with

Julius. Defendant also told Donna about planning to propose to Julius.

Defendant further told Donna that she was worried because her calls to Julius

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went into voicemail. Donna also asked why defendant had not driven Julius to

Linden because defendant typically drove to and from Linden on a regular basis.

On March 8, Julius's mother reported Julius missing to the Linden and

Long Branch Police Departments. Julius's mother also contacted her nephew ,

who worked for New Jersey Transit, to see if he could confirm whether Julius

boarded the train from Long Branch to Linden around 7:00 p.m. on March 8.

The nephew stated there were two trains travelling north from Long Branch that

evening—one at 6:55 p.m. and one at 7:17 p.m. After speaking with crew

members on those trains, the nephew could not determine if Julius boarded either

train.

The nephew requested and obtained video footage from the Long Branch

train station depicting northbound trains departing the station around 7:00 p.m.

on March 8. The nephew asked defendant to provide the precise time she left

Julius at the station. Defendant initially said she dropped Julius off at 7:09 p.m.

When the nephew reported he did not see Julius in the platform footage at that

time, defendant claimed her view of the platform was blocked by an arriving

train. Ultimately, the nephew never discovered Julius in any New Jersey Transit

video footage from March 8.

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On March 9, friends and family had not heard from Julius and were unable

to reach her by phone. Defendant claimed she also tried to reach Julius several

times that day but was unsuccessful.

Also on March 9, defendant drove around Long Branch with Donna.

During the drive, defendant pointed to a home owned by Andre Harris.5 Harris

went to high school with defendant and Donna. Defendant told Donna she

recently reconnected with Harris. Defendant also told Donna the police kept

questioning her about Julius's whereabouts. Additionally, defendant expressed

concern that members of the Ruff Ryders would assume defendant had

something to do with Julius's disappearance and retaliate against defendant.

According to Donna, defendant then asked how long it would take to smell

decomposing remains if Julius was deceased. Donna also said defendant

wondered aloud why, if someone were hit in the head, that person would bleed

out of their ears.

5

Harris filed a separate appeal. Because Harris's appeal and this appeal are

interrelated, we incorporate the facts from this opinion in our opinion issued on

the same date regarding Harris's appeal. See State v. Harris, No. A-3228-21

(App. Div. May 20, 2024).

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By the summer of 2016, defendant started dating someone else.

Defendant continued interacting normally with her friends and co-workers and

no longer appeared depressed about Julius's disappearance.

After receiving the missing person report from Julius's mother, the

Monmouth County Prosecutor's Officer (MCPO) worked with the Linden Police

Department to find Julius. Brian Weisbrot of the MCPO worked with Detectives

Kenneth and Kevin Mikolajczky of the Linden Police Department in the search

for Julius.

Because defendant was presumably the last person to see Julius, Weisbrot

and Kenneth Mikolajczyk informally spoke to her on March 11. The officers

arrived at defendant's house at 10:40 p.m. Defendant agreed voluntarily to

provide a more formal statement to the police and drove with her mother to

MCPO later that same evening to give a recorded statement.

During this recorded statement, defendant told the officers she picked

Julius up around 11:50 a.m. on March 8. According to defendant, the two

women went to lunch, then went to the Eatontown motor vehicle office, and then

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went to defendant's Tinton Falls home. 6 Defendant told the officers they left

Tinton Falls at 6:40 p.m., and defendant deposited Julius at the Long Branch

train station at around 7:00 p.m. to catch a northbound train departing at 7:17

p.m.

Defendant also told the officers she went to Donna's house in Long Branch

after leaving Julius at the train station and stayed at Donna's house for about an

hour. Thereafter, defendant claimed she returned to the train station because

she had "a weird feeling" and "didn't want to drop [Julius] off to begin with, so

[she was] just nervous." Defendant explained she met another friend for dinner

that evening.7

Defendant stated Julius wanted to take the train to Linden so defendant

would not have to drive to Linden and then back to Long Branch. Defendant

further told the officers she texted Julius at 8:15 and 10:29 p.m., and called

Julius around 8:00 a.m. the following morning, but Julius never responded.

6

The police obtained surveillance videos from two of these locations. The

videos confirm the timing of defendant's lunch with Julius and their arrival and

departure from the motor vehicle office.

7

The police also obtained surveillance video from the restaurant, which

corroborated defendant's statement about meeting a friend for dinner on March

8.

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Defendant explained she started to worry when Julius's son called her on March

9 to report Julius never came home.

Defendant denied hurting Julius. She also told the officers she had no idea

where Julius might have gone on March 8.

Defendant expressly consented to the officers' searching her cell phone.

However, the cell phone search did not reveal defendant's communications with

Harris because defendant deleted them. Defendant never mentioned Harris

during the March 2016 recorded statement.

During this interview, defendant agreed to allow the officers to search her

car and home. Defendant and her mother drove home in their car, and the

officers drove in their vehicle. The officers did not conduct a forensic

investigation of defendant's car at that time. 8

As part of their investigation, the police looked into defendant's reported

whereabouts on March 8 after leaving the Long Branch train station. In

reviewing surveillance video provided by New Jersey Transit, the police were

unable to corroborate defendant's differing statements regarding the timing of

Julius's train to Linden. The police also noted Donna's house was only one mile

8

Months later, after defendant's arrest, the police conducted a forensic analysis

of defendant's car and found nothing of evidentiary value.

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from the Long Branch train station but, according to defendant's timeline of the

events on the evening of March 8, there was a one-hour gap between the time

defendant left Julius at the train station and defendant's arrival at Donna's home.

On April 8, while canvassing the area around defendant's home and the

cell phone tower where Julius's cell phone last pinged as part of the search for

Julius, the police spoke to Harris. Harris lived about one mile from the cell

phone tower of Julius's last cell phone transmission. Julius's cell phone was last

used at 7:02 p.m. on March 8, in the area of Joline Avenue and Myrtle Avenue

or McClelland Street in Long Branch, not far from Harris's home. Harris told

the police he knew defendant from high school but did not mention whether or

not he knew Julius.

The police also obtained and reviewed cell phone data for cell phones used

by defendant, Harris, and Julius, including real-time data, historical records

relating to calls and text messages, and records relating to the locations of those

cell phones proximate to the date of Julius's disappearance. In reviewing

defendant's historical cell phone records, the police discovered numerous calls

between defendant and Harris on November 22, 23, 24, and 25, 2015. On

November 22, 2015, just days before Julius was shot, defendant contacted Harris

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at 3:08 a.m. and 3:23 a.m. Harris sent a text message to defendant at 7:04 a.m.

on November 22.

On November 24, 2015, defendant communicated with Harris at 12:21

p.m., 12:49 p.m., 2:07 p.m., 5:02 p.m., 6:26 p.m., 6:27 p.m., 6:53 p.m., 7:09

p.m., 7:11 p.m., 7:13 p.m., 7:17 p.m., 9 7:27 p.m., 7:39 p.m., and 7:44 p.m. The

cell phone location data revealed that the communications between Harris and

defendant between 7:09 p.m. and 7:13 p.m. on November 24 were made while

defendant and Harris were in Linden and near Julius's home.

The cell phone information further revealed multiple calls between

defendant and Harris during the seven o'clock hour on November 24 as both left

the area of Julius's home. At 7:27 p.m., defendant texted a friend that she was

going to the mall to buy sneakers. This text was inconsistent with defendant's

statement to the Linden police that she was in the Woodbridge Mall at 7:00 p.m.

on the day of the shooting.

Additionally, the day after the shooting, the cell phone records confirmed

defendant communicated with Harris numerous times: at 7:15 a.m., 7:23 a.m.,

9:33 a.m., 10:33 a.m., 11:04 a.m., 11:09 a.m., and 11:29 a.m.

9

This communication occurred one minute after Julius's daughter called 9-1-1

to report her mother had been shot.

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The police also examined the cell phone records before and after the date

of Julius's disappearance. Defendant's cell phone records for March 7, 2016,

revealed a call between defendant and Harris at 9:20 p.m. On March 8, 2016,

the cell phone records showed defendant and Harris communicated at 7:40 a.m.,

7:54 a.m., 8:30 a.m., and 8:36 a.m.

On March 8, 2016, shortly after 11:00 a.m., the cell phone location records

placed Julius and defendant in their respective homes. Around 11:27 a.m.,

defendant's cell phone traveled in a northerly direction, and defendant placed a

call to Harris at that time.

At 12:19 p.m., there was an outgoing call from Julius's phone. Julius's

cell phone traveled in a southerly direction at the time of this call. The records

next indicated a series of phone calls from a location near defendant's home

placed by Julius's cell phone at 4:41 p.m., 4:46 p.m., and 4:47 p.m.

Around 6:00 p.m. on March 8, Harris received a series of communications

from defendant. Defendant's communications were from a location near her

home to Harris's phone located near his home in Long Branch.

At 7:02 p.m., Julius's cell phone made a call near Myrtle Avenue in Long

Branch. This call did not originate near the Long Branch train station. The

timing of the call contradicted defendant's statements about taking Julius to the

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Long Branch train station around 7:00 p.m. Further, there were outgoing calls

from defendant's phone at 7:47 p.m. and 7:49 p.m., and an incoming call to

defendant's phone at 8:06 p.m. These phone calls were sent and received while

defendant's phone was in the vicinity of Myrtle Avenue in Long Branch, via the

same cell tower as Julius's phone at 7:02 p.m.

Based upon the cell phone records, the police began investigating Harris.

The police compared Harris's cell phone records to defendant's cell phone

records. The police also noted Harris's physical description matched the

description of the November 24, 2015 shooter provided by Julius's daughter.

The police also obtained Harris's EZ Pass records. According to the EZ Pass

records, Harris travelled southbound on the Garden State Parkway at 7:55 p.m.

on the day Julius was shot.

On August 16, 2016, the police arrested Harris on an outstanding traffic

warrant and took him to the station to be interviewed. In his statement to the

police, Harris initially denied any involvement in Julius's shooting or

disappearance. However, after being confronted with evidence against him,

Harris admitted shooting Julius on November 24, 2015, stated he shot Julius at

defendant's behest, and helped defendant bury Julius's body on March 8, 2016.

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Also on August 16, 2016, the police searched Harris's home pursuant to a

warrant. The police discovered Julius's body buried in the backyard with an

electrical cord around her neck.

A medical examiner (ME) examined Julius's body. According to the ME's

examination, there were no facial fractures, no hemorrhages or discoloration of

the eyes, and no fractures of the neck bone or cartilage. Nor did the ME find

evidence that Julius's death was the result of natural causes. The ME observed

discoloration on Julius's frontal scalp and neck musculature. Based on his

examination of the body, the ME concluded Julius died by "homicidal violence

including ligature strangulation."

Harris agreed to testify against defendant pursuant to a negotiated plea

agreement and a cooperation agreement. Under these agreements, Harris agreed

to testify truthfully at defendant's trial and the State agreed to recommend a

sixteen-year aggregate sentence, subject to No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2(a), in return for his guilty plea on counts one, two, three,

five, and eight in this matter and one count in a separate, unrelated indictment

in another matter.

At trial, Harris testified he met defendant during high school. According

to Harris, he lost touch with defendant after high school. However, he and

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defendant reconnected in the summer of 2015. At that time, Harris was involved

in a contentious divorce with his then-wife.

Defendant told Harris she was dating Julius but suspected Julius was

cheating on her. According to Harris, defendant claimed to have seen him out

with another woman. Harris wanted to keep his dalliances from becoming

public because it would complicate issues related to his divorce, particularly

custody of his children.

Harris testified defendant called him on November 23, 2015, and spoke to

him about an argument she had with Julius a week earlier. Defendant told Harris

she was "frustrated" and "had to get rid of [Julius]." Harris further testified

defendant threatened to tell his wife about his extramarital relationship if he

refused to help defendant.

Harris told the jury he got into his car the next morning and saw a note on

his dashboard. The note depicted an arrow pointing toward the car's glove

compartment. When Harris opened the glove compartment, a nine-millimeter

gun fell out. Harris returned the gun to the glove box and contacted defendant.

Defendant told Harris to meet her at 6:00 p.m. on November 24 at an address in

Linden.

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When he arrived in Linden, Harris pulled his car next to defendant's

vehicle. Harris saw a man in the passenger seat of defendant's car holding a gun

in his lap. When Harris asked defendant to explain, she told Harris to shoot

Julius. Defendant showed Harris a photograph of Julius, described Julius's car,

and provided the car's location.

According to Harris, defendant threatened to shoot him or his children if

he did not shoot Julius. Because defendant sat next to a man with a gun in his

lap and showed Harris photographs of his children on her cell phone, Harris

believed defendant's threats. The police subsequently discovered defendant

researched information about the school Harris's children attended, including

directions to the school and the school's dismissal procedures.

Harris testified he was scared of defendant based on her affiliation with

the Ruff Ryders, which he believed to be a "gang." Because Harris feared

defendant and believed her threats to harm him or his children, Harris shot Julius

on November 24, 2015.

In hindsight, Harris testified he made a bad decision in shooting Julius.

However, Harris explained he did not regret choosing his family over a person

he did not know.

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A few days after shooting Julius, Harris returned the nine-millimeter gun

to defendant. Defendant expressed frustration that Harris "didn't do [his] job"

and she was going to have to go to Julius's hospital and "play her part."

Harris also testified regarding his communications with defendant in early

March 2016. Specifically, Harris stated he spoke to defendant on March 7, 2016,

and defendant called him multiple times on March 8. His testimony was

corroborated by cell phone records obtained by the police.

According to Harris, at 6:01 p.m. on March 8, he received a phone call

from defendant while coaching his son's basketball team in Middletown.

Defendant asked if Harris was home and he told her no, but responded he might

be home later.

Harris testified he returned to his Long Branch home sometime after 6:00

p.m. on March 8. Because he heard his dog barking, Harris went to the back

door and found defendant standing at the door. Defendant asked if Harris had

string to tie down the trunk of her car. Harris offered defendant some twine,

which she rejected as not strong enough. Harris then offered defendant an

electrical cord, which she accepted. Harris shut the door and went about his

business until the dog started barking again. When Harris returned to the back

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door, defendant asked Harris to put the dog elsewhere so she could talk to Harris.

After he stowed the dog, Harris spoke with defendant.

Harris testified defendant said she needed his help and to follow her to the

front of the house. Harris went outside and saw defendant's car in his driveway.

When defendant opened the driver's side door of her car, Harris saw someone in

the passenger seat.

Harris next testified defendant asked if he had a garbage can to help her

"hide this." Harris then discovered Julius dead in the passenger seat. Julius had

his electrical cord wrapped around her neck, and blood seeping from her right

ear.

According to Harris, defendant spoke to Julius's dead body. Defendant

said, "[I]f I can't have you[,] no one can." Harris explained defendant seemed

to be "in a rush, disoriented" and said she "wanted to get to a train station in

Long Branch for whatever reason."

Because Harris lacked a garbage can large enough to fit a person, he got

a tarp and placed the tarp next to defendant's car. Harris then laid Julius's body

on the tarp. At the same time, Harris saw defendant remove the SIM card from

a cell phone and put the card in her pocket. Harris also saw a twenty-two-caliber

handgun in defendant's pocket.

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Harris dragged the tarp to his backyard, dug a shallow grave, and placed

Julius's body in the ground. Harris testified defendant stood watching and acted

as a look out. According to Harris, defendant appeared "distraught, upset, [and]

kind of crying at the same time."

At one point, Harris testified defendant said to Julius's body, "[A]ll you

had to do was say yes." Harris explained defendant kept repeating, "[I]f I can't

have you then nobody can have you." Defendant then told Harris, "[N]o matter

what, if anybody ever ask[s] you, I took her to the train station." Defendant

repeated that command as she left Harris.

Harris told the jury he next spoke to defendant after he talked to the police

on April 8. Harris told defendant the police came to his house. Defendant asked

what Harris said to the police, and he stated he gave them no information.

After this conversation, defendant and Harris agreed to meet. The next

week, defendant arrived at Harris's home "very frustrated because she felt like

people weren't believing her" regarding Julius's disappearance. Defendant also

brandished the twenty-two-caliber handgun and told Harris to keep his mouth

shut.

Harris further testified he asked defendant what she planned to do with

Julius's body. Defendant claimed she was going to remove the body , but she

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never did. Harris never raised the issue again, and he never moved the body.

Harris explained it was defendant's problem "to deal with," and he "wasn't going

to get involved with it anymore."

In December 2016, defendant was indicted, along with Harris, on the

following counts: first-degree attempted murder of Julius and her daughter on

November 24, 2015, N.J.S.A. 2C:5-1 and 2C:11-3 (counts one and two); first-

degree conspiracy to commit murder related to the November 24 attempted

murder, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a) (count three); second-

degree unlawful possession of a weapon on November 24, 2015, N.J.S.A.

2C:58-4 and N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a

weapon for an unlawful purpose on November 24, 2015, N.J.S.A. 2C:39-4(a)

(count five); first-degree purposeful or knowing murder on March 8, 2016,

N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count six); third-degree possession of a

weapon for an unlawful purpose on March 8, 2016, N.J.S.A. 2C:39-4(d) (count

seven); second-degree disturbing or desecrating human remains, N.J.S.A.

2C:22-1(a)(1) and/or (a)(2) (count eight); and fourth-degree tampering with

physical evidence, N.J.S.A. 2C:28-6(1) (count nine).

Defendant and Harris filed several pretrial motions. Prior to deciding the

motions, the judge held multiple days of hearings, including testimonial

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hearings. The judge issued a lengthy written opinion addressing the motions.

Relevant to this appeal, the judge denied defendant's motion to suppress her

statements to the police.

The matter proceeded to trial, starting on August 10, 2021, and ending on

September 3, 2021. In accordance with his plea agreement, Harris testified

against defendant at trial. At the close of the State's case, defendant moved for

a judgment of acquittal. The judge denied the motion, except he dismissed the

attempted murder charge under count two. On September 3, 2021, the jury

found defendant guilty on the remaining counts.

At the May 6, 2022 sentencing hearing, the judge sentenced defendant as

follows: life in prison, subject to NERA on the murder conviction (count six);

a concurrent ten year sentence on the conviction for disturbing human remains

(count eight); a consecutive twenty year sentence, subject to NERA, for the

attempted murder conviction (count one); and a concurrent ten year sentence,

with five years of parole ineligibility, on the conviction for unlawful possession

of a handgun without a permit (count four). The judge merged the remaining

convictions—specifically, he merged counts three and five with count one,

count seven with count six, and count nine with count eight. The judge entered

the judgment of conviction on June 10, 2022.

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On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTION TO SUPPRESS HER

DECEMBER 17, 2015 STATEMENT, AS IT WAS

NOT MADE VOLUNTARILY.

POINT II

THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTION TO SUPPRESS HER

MARCH 11, 2016 STATEMENT, AS IT WAS THE

PRODUCT OF AN ILLEGALLY OBTAINED,

INVOLUNTARY STATEMENT.

POINT III

THE TRIAL COURT'S FAILURE TO ADEQUATELY

INSTRUCT THE JURY ON PERTINENT JURY

CHARGES DENIED THE DEFENDANT DUE

PROCESS AND A FAIR TRIAL. (Partially Raised

Below)

A. The Complexity and Length of the Jury Charges,

Along with the Trial Court's Failure to Fashion a

Tailored Unanimity Charge, Created a Reasonable

Probability that the Murder Verdict was Not

Unanimous. (Not [R]aised [B]elow)

B. The Trial Court Erred in Failing to Charge Passion

Provocation Manslaughter and Attempted Passion

Provocation Manslaughter Despite Counsel's

Request for the Instruction.

C. The Trial Court's "Testimony of a Cooperating

Codefendant" Charge was Fatally Incomplete,

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Which Constituted Plain Error and Warrants

Reversal. (Not [R]aised [B]elow)

POINT IV

DEFENDANT'S CONVICTION MUST BE

REVERSED AS THE INTEGRITY OF BOTH THE

JURY SELECTION AND JURY DELIBERATION

PROCESSES WERE IRREPARABLY TAINTED.

(Not [R]aised [B]elow)

A. A Failure to Adequately Moderate the Virtual Jury

Panel Caused Biased Jurors to Taint the Jury Pool,

Including Impaneled, Deliberating Jurors.

B. Two Jurors Who Were Clearly Not Qualified to

Deliberate Fairly and Impartially Tainted the Jury

Process and Denied Defendant a Fair Trial.

C. The Court Erred in Forcing a Third Juror to

Participate and Deliberate.

D. A Juror was Improperly Excused by the Court as No

Reasoning for the Excusal was Placed on the

Record.

E. Covid-Related Issues Were Not Properly Addressed

with the Jury to Ensure a Fair and Impartial Jury.

F. A Juror Who Flatly Refused to Deliberate Tainted

the Jury Process and Calls into Question the

Unanimity of the Verdict.

POINT V

THE MEDICAL EXAMINER'S TESTIMONY

CONSTITUTED PURE SPECULATION AND WAS

COMPRISED OF NET OPINIONS THAT THE

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26

DEFENSE HAD NO NOTICE OF, WHICH WAS SO

PREJUDICIAL IT DEPRIVED THE DEFENDANT

OF A FAIR TRIAL.

POINT VI

THE PROSECUTOR COMMITTED MISCONDUCT

DURING SUMMATION WHERE HIS COMMENTS

WERE IMPROPER AND SO PREJUDICIAL AS TO

DENY DEFENDANT A FAIR TRIAL AND

REQUIRE REVERSAL OF HER CONVICTIONS.

(Not [R]aised [B]elow)

A. The Prosecutor's Comments in Summation

Improperly Shifted the Burden to the Defense.

B. The Prosecutor's Conclusions in Summation

Exploited Facts that were Not Adduced at Trial and

Not Supported by the Evidence.

C. The Prosecutor Improperly Vouched for the

Credibility of Its Cooperating Witness.

POINT VII

THE TRIAL COURT IMPROPERLY PERMITTED

THE STATE TO USE DEFENDANT'S PRE-ARREST

SILENCE AGAINST HER AT TRIAL, RESULTING

IN MORE BURDEN SHIFTING.

POINT VIII

DEFENDANT'S SENTENCE WAS IMPROPERLY

BASED UPON DISPUTED FACTS AND

EXCESSIVELY DISPROPORTIONATE TO HER

CODEFENDANT'S SENTENCE.

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27

A. The Trial Court Improperly Considered Disputed Facts

in Support of the Imposition of Its Sentence.

B. The 95-Year versus 16-Year Disparity Between

Defendant Sweeney and Codefendant Harris's

Sentences was Not Justifiable.

C. The Trial Court Erred in Imposing Two Consecutive

Maximum NERA Sentences.

I.

We first address defendant's argument that the judge erred in denying her

motion to suppress her December 17, 2015 and March 11, 2016 statements to

the police. Regarding the December 17 statement, defendant asserts she was

"coerced . . . into giving a statement" "by way of a sham grand jury subpoena."

Regarding the March 11 statement, defendant contends that statement was the

poisonous fruit of the illegally obtained December 17 statement. We reject these

arguments.

Prior to ruling on defendant's motion, the judge conducted multiple

hearing days and took testimony from the following individuals: Detective

Weisbrot of the MCPO; Detective Kenneth Mikolajczyk of the Linden Police

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28

Department; and Jill O'Malley, an assistant prosecutor with the Ocean County

Prosecutor's Office. 10

Regarding defendant's December 17, 2015 statement, Mikolajczyk and

O'Malley testified that, in connection with investigating Julius's shooting in

November 2015, the UCPO issued grand jury subpoenas to several people the

police wanted to interview, including defendant. According to the suppression

hearing testimony, the police were not investigating defendant regarding the

shooting. Nor had the police targeted defendant at that time. Rather, the police

and UPCO considered defendant a witness.

Mikolajczyk testified he wanted to speak to defendant because he

understood she and Julius were in a relationship. The detective "figured . . .

[defendant] would be closest to [Julius] and she may have some information that

would lead [him] to who may have hurt [Julius]." O'Malley also testified

defendant's relationship with Julius was "[s]omething to consider" regarding a

possible motive for the shooting.

According to the hearing testimony, on December 16, 2015, police

officers with the Linden Police Department left a subpoena at defendant's home

10

O'Malley worked as an assistant prosecutor in the Union County Prosecutor's

Office (UCPO) at the time of defendant's December 2015 statement to the

police.

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29

with a copy of Mikolajczyk's business card. The following day, police officers

with the Tinton Falls Police Department hand-delivered a subpoena to

defendant. The subpoena "commanded" defendant "to appear in person before

the Grand Jury of Union County" at 1:00 p.m. on December 18, 2015. The grand

jury subpoenas sought information from witnesses regarding the November 24,

2015 shooting.

Detective Mikolajczyk testified he did not know whether a grand jury had

been seated on December 18. In fact, the UCPO commenced a grand jury

proceeding on December 18, and O'Malley reserved the grand jury room from

1:00 p.m. to 4:00 p.m. to hear witness testimony on that date.

According to Mikolajczyk, he understood the subpoenas were issued so

witnesses could contact him. Because several witnesses contacted the detective

in response to the subpoenas, no grand jury testimony was taken on December

18. Instead, Mikolajczyk took statements from the witnesses who contacted

him. Defendant was one of the witnesses who telephoned Mikolajczyk.

Mikolajczyk and O'Malley testified regarding defendant's December 2015

statement to the police. On December 17, 2015, defendant called O'Malley at

the telephone number listed in the subpoena. During that conversation,

O'Malley advised defendant could appear before the grand jury on December

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30

18, or, in lieu of appearing before the grand jury, defendant could contact

Mikolajczyk and provide information, if any, defendant had regarding the

shooting.

After speaking to O'Malley, defendant called Mikolajczyk on December

17. The detective explained he wanted to speak with defendant because she was

known to be close to Julius and might provide information relevant to the

shooting. According to Mikolajczyk, defendant was cooperative and

volunteered to speak with him in person that evening.

Defendant drove herself to the Linden Police Department and arrived

around 4:15 p.m. Before starting the recorded interview, Mikolajczyk told

defendant she did not have to speak with him. However, this comment was not

captured as part of the recorded statement. The detective did not issue the

Miranda11 warnings. Nor did he state defendant could consult with a lawyer.

At the time of the interview, defendant was not under arrest. She was not

charged with any crimes. She was not handcuffed or in custody. Because

Mikolajczyk considered defendant a witness, he treated her as such.

11

Miranda v. Arizona, 384 U.S. 436 (1966).

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31

Mikolajczyk video-recorded defendant's interview for his convenience.

We previously summarized defendant's December 17, 2015 statement. At the

conclusion of the interview, defendant left the Linden police station.

At the suppression hearings, Detective Weisbrot of the MCPO testified

regarding defendant's March 11, 2016 recorded interview. On that date,

Weisbrot was assigned to investigate the missing person report concerning

Julius. He and other members of the MCPO met with officers from the Linden

Police Department, including Detectives Kenneth and Kevin Mikolajczyk. The

group discussed the missing person report made by Julius's mother, and the

November 2015 shooting of Julius. As of March 2016, the shooting remained

unresolved and under investigation.

The Long Branch Police Department contacted Julius's cellular telephone

provider and obtained location data. However, they were unable to locate

Julius's cell phone.

Since defendant was the last person to have seen Julius before she

disappeared, the Long Branch police contacted the Police Department in Tinton

Falls, where defendant lived with her mother. The police wanted to ascertain

whether Julius might be at defendant's home. They eventually determined Julius

was not at defendant's house. However, defendant's mother confirmed Julius

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32

had been at the home on March 8, and defendant took Julius to the Long Branch

train station.

Weisbrot testified he contacted Julius's cellular telephone provider to

obtain additional records to learn where Julius had been and who she contacted

prior to her disappearance. Those records showed the last call received or sent

by Julius's cell phone was in Long Branch, near Joline Avenue and Myrtle

Avenue.

On the night of March 11, 2016, and into the early morning hours of March

12, Weisbrot and Kenneth Mikolajczyk interviewed defendant. At that time, the

police did not have Julius's cell phone records.

The officers initially arrived at defendant's home at approximately 10:40

p.m. on March 11. Defendant's mother also was in the house.

The officers told defendant they were assigned to investigate Julius as a

missing person and wanted to speak with defendant because she was the last

person to see Julius. At the time, the officers considered the matter a missing

person investigation, not a homicide investigation. The officers asked if

defendant would be willing to drive to the MCPO for questioning. They did not

take defendant into custody. Nor did the officers have any basis for doing so.

Thus, the officers did not provide Miranda warnings to defendant.

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33

According to the police, defendant was "very cooperative" and agreed to

be interviewed at the MCPO. The officers left defendant's home and drove to

the MCPO in Asbury Park. Defendant, accompanied by her mother, travelled

to the MCPO separately.

At the MCPO, the officers met defendant in an interview room.

Defendant's mother remained in the lobby. For their convenience, the officers

recorded the interview. Prior to the interview, the officers did not advise

defendant of her Miranda rights because defendant was not under arrest or in

custody. Weisbrot further explained defendant was free to leave the MCPO at

any time and allowed her to keep her cell phone during the interview.

We previously summarized defendant's statements during the March 2016

interview. The interview ended at 2:48 a.m., and defendant drove home with

her mother. After the interview, the two officers drove to defendant's home

because defendant agreed the officers could search her car and home.

The officers searched defendant's car and a portion of defendant's house.

During the search, they found and removed a t-shirt belonging to Julius from

defendant's car and a restaurant receipt from defendant's bedroom.

The investigation into Julius's disappearance continued. On August 16,

2016, the day the police interviewed Harris, the police arrested defendant.

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34

In an extensive and detailed written opinion, the judge denied defendant's

motion to suppress her statements to the police. The judge found defendant's

December 17, 2015, statement was voluntary and concluded she was not in

custody at that time because the police considered defendant a witness rather

than a suspect.

The judge also rejected defendant's argument that the grand jury subpoena

was a "sham," relying upon O'Malley's credible testimony that the grand jury

was in session on December 18, and O'Malley was prepared to take defendant's

testimony if she appeared on that date. The judge credited O'Malley's testimony

that she opened a grand jury proceeding into Julius's shooting and, as of the date

of the grand jury proceeding, there were no arrests or charges related to the

shooting. Similarly, the judge accepted as credible O'Malley's testimony that

she reserved several hours for the grand jury to take testimony from defendant

and other witnesses who received subpoenas.

The judge further found defendant's argument that her statement on

December 17 was involuntary because she had been subpoenaed to be contrary

to the factual record. According to the judge, the record reflected the following:

defendant chose to speak with the police rather than testify before the grand

jury; defendant contacted Mikolajczyk to arrange the date and time of the

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35

interview; defendant drove to the police station for the interview; defendant was

never restrained or otherwise placed into custody by the police during the

interview; and Mikolajczyk advised defendant she had no obligation to speak

with him. Under these circumstances, the judge found no obligation for the

police to issue Miranda warnings and no basis for finding the defendant's

statement involuntary.

The judge also found defendant's March 11, 2016 statement was voluntary

and that she was not in custody during that interview. The judge explained

defendant voluntarily traveled to the MCPO for that interview with her mother

and was never restrained or deprived of her freedom of movement. Because the

judge concluded defendant was not in custody, he found the police had no

obligation to issue Miranda warnings.

In reviewing a trial court's ruling on a suppression motion, we defer to the

court's factual findings if those findings are supported by sufficient credible

evidence in the record. State v. O.D.A.-C., 250 N.J. 408, 425 (2022); State v.

Sims, 250 N.J. 189, 210, cert. denied, Sims v. N.J., ___ U.S. ___, 143 S. Ct. 409

(2022). Our deferential standard of review applies regardless of whether the

statement is video-recorded or otherwise recorded or documented. State v.

Tillery, 238 N.J. 293, 314 (2019).

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36

However, we review a trial judge's legal conclusions de novo, including

the validity of a defendant's waiver of the right against self-incrimination and

the voluntariness of a defendant's statement. Arizona v. Fulminante, 499 U.S.

279, 287 (1991); O.D.A.-C., 250 N.J. at 425.

The right against self-incrimination is protected under both federal and

state law. The federal protection arises under the Fifth Amendment to the

Constitution, U.S. Const. amend. V ("No person . . . shall be compelled in any

criminal case to be a witness against himself . . . ."), applicable to the States

under the Fourteenth Amendment, U.S. Const. amend. XIV. State v. Ahmad,

246 N.J. 592, 609-10 (2021). State protection in New Jersey arises under

statutory and common law. N.J.S.A. 2A:84A-19; N.J.R.E. 503; O.D.A.-C., 250

N.J. at 420. New Jersey's protection against self-incrimination is more

expansive than its federal counterpart. O.D.A.-C., 250 N.J. at 420.

A person may waive the right against self-incrimination. State v.

Vincenty, 237 N.J. 122, 132 (2019). However, in the context of custodial

interrogations, "[l]aw enforcement officers must first advise a suspect of the

right against self-incrimination before attempting to obtain a waiver of the

right." Ibid. Known as the Miranda warnings, a defendant must be advised of

the following: the right to remain silent; that anything said could be used in a

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37

court of law; the right to have an attorney present and, if a defendant cannot

afford an attorney, to have an attorney appointed for them; and that these rights

may be invoked at any time during the interrogation. Miranda, 384 U.S. at 479;

O.D.A.-C., 250 N.J. at 412, 420.

The State bears the burden of proof beyond a reasonable doubt that a

defendant's waiver of the right against self-incrimination was "knowingly,

intelligently, and voluntarily waived" under the totality of the circumstances.

O.D.A.-C., 250 N.J. at 420-21, 425. "That burden of proof is higher than under

federal law, which requires the government to 'prove waiver only by a

preponderance of the evidence.'" O.D.A.-C., 250 N.J. at 420 (quoting Colorado

v. Connelly, 479 U.S. 157, 168 (1986)).

"Miranda is triggered only when a person is in custody and subject to

questioning by law enforcement." Ahmad, 246 N.J. at 610. Whether someone

is in custody, requiring issuance of the Miranda warnings, is a fact-sensitive

inquiry. Id. at 611. Although no formal arrest or physical restraints are required

to find a person was in custody, being in custody entails a "significant

deprivation" of one's "freedom of action." State v. Bullock, 253 N.J. 512, 533

(2023) (quoting State v. P.Z., 152 N.J. 86, 103 (1997)); State v. Erazo, 254 N.J.

277, 298-99 (2023).

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38

In this case, there is no evidence defendant suffered any substantial

deprivation of her freedom while being interviewed by the police in December

2015 or March 2016. Additionally, there is sufficient evidence in the record

supporting the judge's finding that defendant's statements to the police were

voluntary.

Defendant's reliance on Garrity v. New Jersey, 385 U.S. 493 (1967), is

misplaced. In Garrity, the petitioners were subjected to coercive conduct when

the "choice imposed on [them] was one between self-incrimination or job

forfeiture." Id. at 496-98. Specifically, the petitioners were told that if they

refused to answer questions, they would be subject to removal from office. Id.

at 494. Here, defendant was under no such compulsion to self-incriminate.

Under the totality of the circumstances, the judge properly admitted

defendant's December 2015 statement to the police finding she was not in

custody and her statement was voluntarily. Because defendant's December 2015

statement was valid, defendant's fruit-of-the-poisonous-tree argument raised for

the first time on appeal regarding her March 2016 statement—that the March

2016 statement was the product of the unlawfully obtained December 2015

statement—fails as well. See State v. O'Neill, 193 N.J. 148, 171 n.13 (2007).

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39

Even on the merits, defendant's March 2016 statement was valid under the

totality of the circumstances. Regarding the March 2016 statement, defendant

agreed to meet with the police who were investigating Julius's disappearance.

Defendant and her mother drove to and from the MCPO in their own car.

Defendant was not under arrest. Nor was she confined or restrained in any way.

Further, defendant was not subjected to coercive questioning during this

interview. Rather, the police treated defendant as a person who might possess

information relevant to Julius's disappearance because defendant was the last

person known to have seen Julius. Moreover, as of March 2016, there was no

evidence Julius's disappearance was connected to any criminal act.

Having reviewed the record, we are satisfied there is substantial evidence

in the record supporting the judge's finding defendant was not in custody while

being questioned by the police in December 2015 and March 2016 and that

defendant gave these statements voluntarily. Thus, the judge correctly

concluded no Miranda warnings were required.

II.

We next consider defendant's arguments that inadequate jury instructions

deprived her of due process. Specifically, defendant contends: (1) the charges

were complex and long, and did not include a tailored unanimity charge; (2) the

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40

judge erred in failing to charge passion provocation manslaughter and attempted

passion provocation manslaughter; and (3) the cooperating co-defendant charge

was incomplete. We reject these arguments.

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Lora, 465 N.J. Super. 477, 501 (App. Div. 2020) (quoting State v. Green,

86 N.J. 281, 287 (1981)). "Jury charges 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." State v. Singleton, 211

N.J. 157, 181-82 (2012) (quoting Green, 86 N.J. at 287-88). Erroneous charges

on fundamental issues are presumed to constitute reversible error. State v.

Carrero, 229 N.J. 118, 127 (2017).

"Objections to charges that are deficient in essentials will preserve these

issues on appeal and will ordinarily result in a reversal." Green, 86 N.J. at 289.

Where a defendant does not object when a charge is given, as defendant failed

to do in this case except as to the passion provocation charge,

"there is a presumption that the charge was not error and was unlikely to

prejudice the defendant's case." State v. Montalvo, 229 N.J. 300, 320 (2017)

(quoting Singleton, 211 N.J. at 182). Absent an objection, we review for plain

error and "disregard any alleged error 'unless it is of such a nature as to have

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41

been clearly capable of producing an unjust result.'" State v. Funderburg, 225

N.J. 66, 79 (2016) (quoting R. 2:10-2); see also State v. Adams, 194 N.J. 186,

206-07 (2008) ("Generally, a defendant waives the right to contest an instruction

on appeal if he does not object to the instructions as required by Rule 1:7-2.").

Regarding jury instructions, "plain error requires demonstration of 'legal

impropriety in the charge prejudicially affecting the substantial rights of the

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

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

about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting

State v. Hock, 54 N.J. 526, 538 (1969)). The alleged charge error "is viewed in

the totality of the entire charge, not in isolation." Ibid. "An appeal centered

around jury instructions requires courts to read the charge as a whole, and not

just the challenged portion, to determine its overall effect." State v. A.L.A., 251

N.J. 580, 591 (2022). "In addition, any finding of plain error depends on an

evaluation of the overall strength of the State's case." Chapland, 187 N.J. at

289.

A.

Defendant contends the charge was overly complex and long.

Specifically, defendant argues some charges were premised upon the State's

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42

theory of accomplice liability, whereas the murder charge was premised upon

the State's theory of liability based upon defendant's own conduct. Defendant

contends these differing liability theories created a reasonable probability of

juror confusion and a lack of unanimity, with some jurors finding defendant

guilty of murder as Harris's accomplice−a theory not pursued by the State−and

others finding her guilty of murder by her own conduct.

Because defendant failed to raise this argument at trial, we review for

plain error. R. 2:10-2. After reviewing the record, we are satisfied there was

no error related to the length or complexity of the jury charges.

Here, the judge instructed the jury on each charge in the indictment, as

well as the lesser included offenses. Regarding the murder charge, the judge

clearly instructed that the jury was required to find defendant caused Julius's

death and specifically referred to the State's theory that defendant strangled

Julius with an electrical cord.12

Regarding juror unanimity, the judge explained the jury did not have to

be unanimous as to which form of murder was committed—whether defendant

knowingly or purposely caused Julius's death or inflicted serious bodily injury

resulting in Julius's death. However, to find defendant guilty of murder, the

12

In count seven, the State claimed the electrical cord was the murder weapon.

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43

judge stated that "all jurors must agree that the defendant either knowingly or

purposely caused the death or serious bodily injury resulting in the death of

Tyrita Julius."

Regarding the other charges, the judge instructed the jury could find

defendant guilty based on accomplice liability or vicarious liability theories.

The verdict sheet did not differentiate between the State's different theories of

liability. However, the judge gave the jurors a written copy of the jury charge,

which differentiated the State's liability theories. "When there is an error in a

verdict sheet but the trial court's charge has clarified the legal standard for the

jury to follow, the error may be deemed harmless." State v. Galicia, 210 N.J.

364, 387 (2012). Because the jury had a copy of the judge's charge, we are

satisfied the jury followed the judge's written instructions in answering the

questions on the verdict sheet.

On appeal, defendant failed to identify any specific error in the judge's

jury charge or verdict sheet. Rather, defendant argues generally that the jury

charge was too long and potentially confusing to the jury. Such a general

argument fails to establish plain error in the judge's charge to the jury.

Further, the judge's instruction to the jury on the murder charge comported

with the statutory language under N.J.S.A. 2C:11-3(a)(1) and (a)(2), as well as

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Model Jury Charge (Criminal), "Murder" (rev. June 14, 2004). Moreover, in the

context of the entire charge, the trial evidence, and the State's theory of the case

as argued by the prosecutor, we discern no basis to conclude the jury was

confused as to the elements for the murder charge. Nor was the jury confused

as to the requirement of a unanimous conclusion that defendant committed

purposeful or knowing murder by her own conduct and not based upon

accomplice liability.

B.

Next, defendant contends the judge erred in declining to issue a jury

instruction on passion/provocation manslaughter as to the murder charge and the

attempted murder charge. She argues the trial evidence supported charging

passion/provocation because "the entire State's case rested on the theory that

defendant's passions were inflamed as a result of a course of ill treatment by a

paramour" who "kept leaving her for a man." We disagree.

At trial, defendant requested a passion/provocation manslaughter charge

on the murder count. However, defense counsel did not request the charge on

the attempted murder count. The judge rejected defendant's requested

passion/provocation manslaughter charge, finding it was "not warranted by the

evidence in the case."

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45

N.J.S.A. 2C:1-8(e) provides: "The court shall not charge the jury with

respect to an included offense unless there is a rational basis for a verdict

convicting the defendant of the included offense." Where a defendant did not

request a lesser-included offense charge, the charge must be given only if it is

clearly indicated by the evidence. State v. Canfield, 252 N.J. 497, 501 (2023).

On the other hand, where a defendant requests an instruction on a lesser-

included offense and the request is denied, we must determine "whether 'the

evidence presents a rational basis on which the jury could (1) acquit the

defendant of the greater charge and (2) convict the defendant of the lesser.'"

Carrero, 229 N.J. at 128 (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "If

such a rational basis exists, a trial court's failure to give the requested instruction

is reversible error." Ibid.

"The rational-basis test sets a low threshold." Ibid. "A defendant is

entitled to a lesser-included offense instruction rationally supported by the

evidence, even if the instruction is inconsistent with the defense theory." Ibid.

"In deciding whether the rational-basis test has been satisfied, the trial court

must view the evidence in the light most favorable to the defendant." Ibid.

"Passion/provocation manslaughter is an intentional homicide committed

under extenuating circumstances that mitigate the murder." State v. Robinson,

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46

136 N.J. 476, 481 (1994). Passion/provocation manslaughter, N.J.S.A.

2C:11-4(b)(2), consists of four elements: (1) adequate provocation; (2)

insufficient time for defendant to cool off between the provocation and the

killing; (3) defendant was actually impassioned by the provocation; and (4)

defendant had not cooled off before the killing. Carrero, 229 N.J. at 129. "The

first two elements are assessed objectively, while the third and fourth are 'more

subjective because they relate to the defendant's actual response.'" Ibid.

(quoting Robinson, 136 N.J. at 490). "To warrant the passion/provocation jury

charge, the evidence must rationally support only the first two elements; the

subjective elements 'should usually be left to the jury to determine.'" Ibid.

(quoting State v. Mauricio, 117 N.J. 402, 413 (1990)).

The first element requires proof of provocation sufficient to arouse the

passions of an ordinary person beyond the power of their control. Ibid. "Words

alone are insufficient to create adequate provocation," but the presence of a

weapon or conduct constituting a battery could be sufficient. Ibid. Under the

second element, there is no specific timeframe to establish a cooling off period;

instead, there must be a showing of insufficient time for a reasonable person in

the defendant's position to cool off. Id. at 129-30.

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47

Here, the judge correctly concluded there was no evidence adduced at trial

to support a passion/provocation manslaughter charge. There was no evidence

Julius did anything to arouse the passion of an ordinary person beyond the power

of their control. Nor was there any evidence Julius ever used a weapon against

defendant or physically abused defendant. While defendant may have been

upset when Julius broke off their relationship, there was nothing in the record to

support a passion/provocation manslaughter charge. See State v. Darrian, 255

N.J. Super. 435, 447-52 (App. Div. 1992) (rejecting a passion/provocation

manslaughter charge premised upon a jealous rage following an argument,

absent evidence of physical abuse or threat of physical harm); State v. McClain,

248 N.J. Super. 409, 413-14, 419-20 (App. Div. 1991) (rejecting a

passion/provocation manslaughter charge premised upon the victim's repeated

infidelity and where the incidents of the victim's abuse toward the defendant

were remote in time to the victim's murder).

Furthermore, on this record, there was no evidence of an insufficient time

for a reasonable person in defendant's position to cool off. To the contrary,

based on the evidence, defendant planned the November 2015 shooting after

spending several weeks monitoring Julius's cell phone communications to

uncover evidence of Julius's infidelity. As it relates to the March 8, 2016

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murder, the record indicates defendant spent the early morning hours searching

Julius's cell phone records but thereafter spent the day with Julius, eating lunch,

running errands, and visiting at defendant's home.

Having reviewed the record, we discern no error under these facts in the

judge's denial of defendant's request for a passion/provocation manslaughter

charge.

C.

Defendant also argues the judge's charge regarding the testimony of a

cooperating co-defendant was fatally incomplete. Because this portion of the

jury charge omitted a sentence advising that Harris's guilty plea could not be

used as evidence of defendant's guilt, defendant asserts the charge was critically

flawed and warrants reversal of her conviction. See Model Jury Charge

(Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (rev. Feb.

6, 2006); see also Adams, 194 N.J. at 208 ("Although a co-defendant's guilty

plea may be considered for credibility purposes, it may not be used as

substantive evidence of the defendant's guilt."). Defendant contends the failure

to include the omitted sentence, combined with the prosecutor's statements to

the jury emphasizing Harris's obligation to testify truthfully under the

cooperation agreement, resulted in prejudice.

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49

Because defendant failed to raise this issue before the trial court, we

review for plain error. R. 2:10-2. On this record, we discern no plain error in

the judge's charge regarding the testimony of a cooperating co-defendant.

Consistent with the cooperating co-defendant model charge, the judge

gave the following jury instruction:

Now, Andre Harris[,] who was indicted for the crimes

that defendant is on trial for[,] has testified on behalf of

the State. Andre Harris, who was indicted for the

crimes that defendant is on trial for, has pleaded guilty

to some of those charges, mainly the first count of

Indictment 1612-1998, charging Andre Harris with

attempted murder of Tyrita Julius; the second count

charging Andre Harris with attempted murder of

[Julius's daughter]; a third count charging Andre Harris

with conspiracy to commit the murder of Tyrita Julius;

a fifth count charging Andre Harris with possession of

a handgun for an unlawful purpose[;] and the eighth

count charging Andre Harris with disturbing or

desecrating human remains. Andre Harris also pled

guilty to the first count of Indictment 1606-099[7]

charging him with obtaining CDS by fraud. Andre

Harris has testified on behalf of the State.

Evidence of Andre Harris's pleas of guilty may

be used only in determining the credibility or

believability of his testimony. A jury has a right to

consider whether a person who has admitted that they

failed to comply with society's rules would be more

likely to ignore the oath requiring truthfulness on the

witness stand than a person who has never been

convicted or pleaded guilty to a crime. You may

consider such evidence along with all the other factors

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that I mentioned previously in determining the

credibility of a witness.

The law requires that the testimony of such a

witness be given careful scrutiny. In weighing Andre

Harris's testimony, therefore, you may consider

whether he has a special interest in the outcome of the

case and whether his testimony was influenced by the

hope or expectation of any favorable treatment or

reward or by any feelings or revenge or reprisal. If you

believe this witness to be credible and worthy of belief,

you have a right to convict the defendant, Jennifer

Sweeney[,] on his testimony alone provided, of course,

that upon the consideration of the whole case you are

satisfied beyond a reasonable doubt of defendant,

Sweeney's, guilt.

The judge gave the foregoing instruction at defense counsel's request.

Defense counsel did not object to the charge as read by the judge,

notwithstanding the omission of the following sentence from the model charge:

"However, you may not use [Harris's] plea of guilty as evidence that this

defendant is guilty of the crimes that [she] is charged with." Model Jury Charge

(Criminal), "Testimony of a Cooperating Co-Defendant or Witness." Regarding

the omitted sentence, the model charge states: "There may be circumstances

where this . . . sentence is not appropriate." Id. at n.3 (citing State v. Murphy,

376 N.J. Super. 114, 122-23 (App. Div. 2005)).

In Murphy, we considered the omission of this sentence from the

cooperating co-defendant model charge. The trial judge in Murphy told the jury

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that a court could only accept a plea agreement if the court was satisfied that the

person pleading guilty was guilty of the offense. Id. at 121. The trial court gave

the cooperating co-defendant charge but did not include the sentence informing

the jury that the co-defendant's guilty plea could not be used as substantive

evidence of defendant's guilt. Id. at 122. We concluded the facts in Murphy,

where the victim was unable to identify the defendant or the co-defendant,

required the trial judge "clearly define not only the limited use of the testimony

but also the prohibited use of the testimony." Id. at 122-23. Based on the

omission of the prohibited use instruction, coupled with other trial errors, we

reversed the defendant's conviction and remanded for a new trial. Id. at 124-25.

In a case decided three years after Murphy, the New Jersey Supreme Court

found the omission of the sentence in the cooperating co-defendant charge did

not constitute plain error because: defense counsel "thoroughly cross-

examined" the witness; the witness's "lack of credibility was a major theme in

closing arguments for the defense, which asserted that [the witness] was a liar";

the witness's "detailed testimony . . . independently established his guilt of the

crime and, therefore, his guilty plea added little weight to that testimony"; and

the trial judge gave "the standard charge on credibility." Adams, 194 N.J. at

208-09 (citing State v. Stefanelli, 78 N.J. 418, 437 (1979)). Under the

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circumstances presented in Adams, the Court concluded the error−failing to

instruct the jury it should not consider the co-defendant's guilty plea as

substantive evidence of the defendant's guilt−lacked a clear capacity to produce

an unjust result and had a minimal effect on the outcome of the trial. Id. at 209.

Here, unlike the facts in Murphy, there was ample evidence of defendant's

guilt without Harris's testimony as a cooperating co-defendant. Specifically, the

evidence included defendant's cell phone communications, other cell phone

records, and EZ Pass records. Further, the judge never made any statement to

the jury that could remotely be construed as bolstering Harris's testimony.

Additionally, defendant's attorney vigorously cross-examined Harris and, during

summation, forcefully attacked his credibility.

Having reviewed the record as a whole, we are satisfied the jury was

adequately instructed regarding its consideration and assessment of Harris's

testimony. The judge's failure to read the omitted sentence in the cooperating

co-defendant charge did not constitute plain error under these circumstances.

III.

We turn to defendant's argument for reversal of her conviction based on

an irreversible taint in the integrity of the jury selection process. For the first

time on appeal, defendant argues: (1) the trial judge allowed biased jurors to

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taint the jury pool, including jurors who ultimately were empaneled and

deliberated; (2) two of the selected jurors were not qualified to deliberate fairly

and impartially and thus tainted the jury process, depriving defendant of a fair

trial; (3) the judge erred in forcing a juror to participate and deliberate; (4) the

judge improperly excused a juror without placing the reasons on the record; and

(5) the judge failed to properly address COVID-related issues with the jury to

ensure a fair and impartial trial. Because defendant did not raise these

arguments before the trial court, we review for plain error. R. 2:10-2.

Criminal defendants have a constitutional right to be tried before an

impartial jury. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10; State v.

Little, 246 N.J. 402, 414 (2021). Jury voir dire is a key component to

safeguarding that right. State v. Fortin, 178 N.J. 540, 575 (2004).

"The voir dire should be probing, extensive, fair[,] and balanced." State

v. Papasavvas, 163 N.J. 565, 585 (2000). However, "a trial court's decisions

regarding voir dire are not to be disturbed on appeal, except to correct an error

that undermines the selection of an impartial jury." State v. Winder, 200 N.J.

231, 252 (2009).

The trial judge has broad discretion in the conduct of voir dire and the

exercise of that discretion generally will not be disturbed on appeal. Little, 246

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N.J. at 413. "The wide latitude afforded trial courts in the determination of a

prospective juror's qualifications stems from the inability of appellate courts to

appreciate fully the dynamics of a trial proceeding." State v. DiFrisco, 137 N.J.

434, 459 (1994).

Decisions concerning the potential bias of prospective

jurors are primarily subjective in nature. They require

at bottom a judgment concerning the juror's credibility

as he responds to questions designed to detect whether

he is able to sit as a fair and impartial trier of fact.

Consequently, such evaluations are necessarily

dependent upon an observation of the juror's demeanor

during the course of voir dire [−] observations which an

appellate court is precluded from making.

To be sure, in certain circumstances a

venireman's potential for bias is sufficiently indicated

by his past experiences that a refusal to excuse for cause

will necessitate a reversal. In the majority of cases,

however, whether or not to dismiss the challenged juror

is heavily dependent upon subjective evaluations of his

credibility.

....

. . . Inasmuch as [a] trial judge observe[s] [a]

venireman's demeanor, he [is] in a position to

accurately assess the sincerity and credibility of . . .

statements, and [an appellate court] should therefore

pay due deference to his evaluation . . . .

[State v. Singletary, 80 N.J. 55, 63-64 (1979) (citations

omitted).]

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"Probing inquiries are essential in uncovering hidden biases." State v.

Williams, 113 N.J. 393, 424 (1988). However, there are "[n]o hard-and-fast

rules" in determining whether removing a juror for cause is proper. DiFrisco,

137 N.J. at 460. That decision is left to the trial judge's sound discretion. Ibid.

We "review[] the trial court's jury-related decisions under the abuse of

discretion standard" because of the trial court's "unique perspective and the

traditional deference we accord to trial courts in 'exercising control over matters

pertaining to the jury.'" State v. Brown, 442 N.J. Super. 154, 182 (App. Div.

2015) (quoting State v. R.D., 169 N.J. 551, 559-60 (2001)).

A.

Defendant contends jury selection was tainted by the impaneling of juror

number three. During voir dire, the judge asked juror number three whether he

thought the criminal justice system could be fair. The juror responded "yes,"

explaining that people of different ethnicities and different opinions and belief

systems come together to reach one conclusion, and he believed this showed

"fairness." This juror also told the judge the following:

And just before we came on or yesterday when they

were mentioning the case at what happened, or just, you

know, briefly, a few people said, okay, of course, they

wanted to leave and wanted to get it over with, and they

were just saying consider the person to be guilty. I

mean, if the evidence is there, but then it's–there's a

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reason why there's court, so I have to look at everything

all different angles and actually prove a point.

Defendant contends the foregoing statement by juror number three during

voir dire evidenced potential jurors in the pool believed defendant was guilty

before completion of jury selection. Defendant asserts the statement by juror

number three presented "extremely troubling, and arguably horrifying

information," compelling a more complete inquiry of the potential jury pool by

the trial judge.

Defendant's argument rests on nothing more than speculation. There was

no evidence suggesting prospective jurors interacted with one another during

jury selection or discussed methods for avoiding jury service. Even if such

discussions occurred, the judge's voir dire of each prospective juror eliminated

individuals who may have pre-judged defendant's guilt prior to the start of the

trial. The judge had no obligation to conduct separate questioning of prospective

jurors based upon juror number three's statement.

Ultimately, after considering juror number three's responses to the judge's

questions, defendant's counsel found him "eminently qualified" to serve as a

juror and raised no objection to seating him as a juror. On this record, we discern

no abuse of discretion in the judge's questioning of the jury pool or, specifically,

juror number three.

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B.

Defendant next argues the judge erred in seating two unqualified jurors.

First, she asserts juror number thirteen was unqualified because he had mental

health issues and difficulty understanding questions.

Juror number thirteen cogently responded to the judge's questions. The

juror informed the judge he suffered from depression and anxiety, which

"[c]ould" affect his ability to serve as a juror. However, the juror worked in a

stressful job for more than thirty years and told the judge he could be a fair juror.

Both counsel found juror number thirteen to be qualified. Neither counsel

requested any further questioning by the judge related to the juror's ability to

serve. Nor did counsel object to seating this individual as a juror.

Next, defendant asserts juror number six should have been excused due to

medical issues. During jury selection, juror number six stated he had muscle

spasms in his lower back which, at the time of jury selection, prevented him

from sitting for long time periods. He explained this medical condition could

interfere with his ability to be fair and impartial. However, this juror's responses

to the judge's voir dire questions qualified him for jury service. Neither attorney

objected to him being seated as a juror. More importantly, juror number six was

qualified for jury service on July 15, 2021, and the trial did not start until nearly

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a month later. If juror number six still suffered back spasms at the start of the

trial, he likely would have so advised the judge and counsel regarding any

limitation in his ability to serve as a juror.

Nothing on the record evinces the judge's abuse of discretion in seating

juror number thirteen or juror number six.

C.

Defendant next asserts the judge erred in "forcing" juror number two to

participate and deliberate as a juror.

On the second day of trial, juror number two presented a letter from her

employer to be excused from jury service. The judge denied that request

because it was made after jury selection and after the jury had been sworn.

In accordance with Rule 1:7-2, defense counsel could have objected to the

denial of the juror's request but did not do so. Nor did defendant's attorney

request the judge conduct any further inquiry of juror number two regarding her

ability to continue serving as a juror.

We are satisfied the judge did not abuse his discretion in retaining juror

number two as a seated juror. There was no good cause to excuse this juror once

the trial began. R. 1:8-2(d)(1); see State v. Jenkins, 182 N.J. 112, 124 (2004).

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D.

Defendant also argues the judge erred in excusing juror number fifteen

during the trial without any explanation. Defense counsel did not object to the

judge's excusing this juror or request an explanation. Nor has defendant

proffered any harm resulting from the excusal of juror number fifteen. On this

record, we are satisfied there was no plain error in excusing this juror to warrant

reversal of defendant's conviction.

E.

Additionally, defendant asserts the judge erred in failing to ask

prospective jurors if they were comfortable serving on a jury during the COVID-

19 pandemic. Because the judge did not question the jurors about the issue, she

argues the judge failed to satisfy his obligation to ensure a fair and impartial

jury. We disagree.

The record reflects the judge addressed the judiciary's COVID-related

precautions and protocols during jury selection. See generally State v. Dangcil,

248 N.J. 114 (2021) (addressing the jury selection process as a result of

COVID). Even after the jurors were initially qualified, certain jurors requested

exemptions from jury service. The requested exemptions by jurors included not

wanting to wear masks or being unable to wear masks. Defense counsel never

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asked the judge to further explore COVID-related concerns with prospective

jurors. Nor did defense counsel object to excusing jurors based upon COVID

concerns.

We are satisfied the judge did not abuse his discretion in any aspect of the

jury selection process. Nor was there plain error in the refusal to dismiss or to

excuse jurors from service.

IV.

We turn to defendant's argument that a juror who allegedly refused to

deliberate tainted the jury deliberation process. Defendant also asserts this issue

calls into question the unanimity of the jury's verdict. However, defendant never

raised this issue during the trial, so we review for plain error. R. 2:10-2.

The issue involved a note submitted to the judge by the jury after the jury

began deliberating. The jury started deliberating at 2:02 p.m. on September 2,

2021. The jury recessed at 4:31 p.m. that day. At about 10:00 a.m. the next day,

the judge received the following note from the jury: "We, the jury, have some

concerns regarding some of the jurors. One juror is not willing to deliberate.

Thank you."

The judge addressed the jury's note with counsel. While counsel discussed

the note with the judge, and before the judge could respond to the jury regarding

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that note, the judge received another note from the jury indicating it reached a

verdict. Without objection from either counsel, the jury returned to the

courtroom, and the verdict was read in open court. Thereafter, the judge polled

the jury, and the verdict was deemed unanimous.

Jury issues are left to the sound discretion of the trial court, and we review

such issues for abuse of discretion. R.D., 169 N.J. at 559-60. Here, we are

satisfied there was no abuse of discretion. Based on the record, after the judge

received the first note, the jury apparently resolved any issue without judicial

intervention and rendered a unanimous verdict. We discern no basis for the

judge to question the jurors regarding the note once the members of the jury

seemingly resolved any issues among themselves and rendered a verdict.

V.

Next, defendant argues the judge erred in admitting the ME's testimony.

She asserts the ME's testimony was speculative and consisted of net opinion.

Further, defendant claims she lacked notice of portions of the ME's testimony,

which deprived her of a fair trial. We reject these arguments.

Specifically, defendant asserts the ME's testimony that Julius died as a

result of "homicidal violence including ligature strangulation" was speculative

and not proffered within a reasonable degree of medical certainty. Defendant

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62

claims the ME's opinion was supported solely by the existence of the electrical

cord found around Julius's neck rather than any "physical, medical, or otherwise

observable biological evidence."

Additionally, defendant contends the judge impermissibly allowed the ME

to speculate that Julius may have suffered blunt force trauma or other significant

head injury prior to being strangled. Defendant claims if she had notice of the

ME's opinion related to blunt force trauma, she could have filed a motion to bar

that testimony or, alternatively, retained her own expert to refute the ME's

testimony. We reject these arguments.

Without objection from defense counsel, the judge qualified the ME as an

expert in the fields of anatomic, clinical, and forensic pathology. The ME

performed an autopsy on Julius's remains and saw the body in situ. Based on

the ME's observations and autopsy, the ME testified he found: a "white

electrical cord kind of draped over [Julius's] neck," as well as "discolorations of

the neck musculature"; a "red[-]pink kind of discoloration, in [Julius's] left eye";

and head trauma in the form of discoloration of the scalp.

Regarding the scalp discoloration, defense counsel objected to the ME's

testimony that Julius suffered blunt force trauma to her head. Counsel argued

he had no report from the ME related to any blunt force trauma. Additionally,

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counsel asserted the ME failed to establish his opinion regarding blunt force

trauma was made within a reasonable degree of medical certainty.

The judge overruled defense counsel's objection. The judge explained he

believed the State was not claiming blunt force trauma caused Julius's death. In

overruling defendant's objection, the judge stated defense counsel would be able

to cross-examine the ME as to the cause of death. Defense counsel proceeded

to cross-examine the ME, and the cross-examination highlighted, rather than

downplayed, the ME's blunt force trauma testimony.

Based on his training and experience, as well as his post-mortem

examination of the body, the ME−within a reasonable degree of medical

certainty−opined as to Julius's cause and manner of death. He testified the cause

of death was "homicidal violence including ligature strangulation," and the

manner of death was homicide. The ME explained "homicidal violence" was "a

wastebasket term" used when he "can't have a specific mechanism for what

caused the death." Additionally, the ME stated he included strangulation as a

part of his finding, "[j]ust for the sheer reason that [he] ha[d] a ligature present."

Counsel extensively questioned the ME on the following: the ME's

qualifications; the nature of ligature strangulation, including how many minutes

it "could take" for the victim to die; the ME's inability to opine as to the exact

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cause of Julius's death, including the ME's failure to check the box on the

autopsy form indicating blunt trauma as an "additional circumstance" in the

cause and manner of death; and the ME's specific finding of ligature

strangulation notwithstanding that the electrical cord was not tied around

Julius's neck. Further, defense counsel noted the absence of specific evidence

in the ME's findings supporting ligature strangulation, such as ma rks on the

neck, fingerprints around the throat, indication of a struggle, or specific fractures

or hemorrhages in the body typically associated with strangulation. Ultimately,

the ME conceded he was not "100 percent" certain as to the cause of Julius's

death.

Where an objection is made to the trial court, we review the trial judge's

evidentiary rulings for abuse of discretion. State v. Burney, 255 N.J. 1, 20

(2023). Here, defense counsel objected to the ME's testimony regarding blunt

force trauma. However, defense counsel never objected to the ME's

determination of death by homicidal violence including ligature strangulation as

impermissible net opinion. Thus, as to that issue, we apply the plain error

standard of review. R. 2:10-2.

The proponent of expert testimony bears the burden of proof on

admissibility. State v. Torres, 183 N.J. 554, 567 (2005). N.J.R.E. 702 provides:

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"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." This rule imposes three

requirements for the admission of expert testimony:

(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror; (2)

the field testified to 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 intended testimony.

[State v. Derry, 250 N.J. 611, 632-33 (2022) (quoting

Torres, 183 N.J. at 567-68).]13

"Those requirements are construed liberally in light of Rule 702's tilt in favor of

the admissibility of expert testimony." State v. Jenewicz, 193 N.J. 440, 454

(2008).

Under N.J.R.E. 703:

The 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

13

Well after completion of defendant's trial, the New Jersey Supreme Court

issued its decision in State v. Olenowski, 253 N.J. 133 (2023). In Olenowski,

the Court held, in determining reliability of scientific evidence under N.J.R.E.

702 in the future, courts should employ the test set forth in Daubert v. Merrell

Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Id. at 138-39, 151-54.

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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.

Defendant argues the ME's opinion as to Julius's cause of death constituted

impermissible "net opinion." We disagree. "[T]he net opinion rule 'requires an

expert to give the why and wherefore of his or her opinion, rather than a mere

conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg

v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Here, the ME determinations were not net opinion. The ME's opinions

were based upon his education, training, and examination of Julius's body . The

record indicated the body was found, decomposing, in a shallow grave in

Harris's backyard. The body had an electrical cord, or ligature, around the neck.

The ME testified his examination found no evidence of death by natural causes

or other causative factors. Based on the body's decomposition, the ME was

unable to provide an opinion on "a specific mechanism for what caused the

death" or state with one hundred percent certainty the cause of death. However,

the ME offered his opinion within a reasonable degree of medical certainty. See

State v. Howard-French, 468 N.J. Super. 448, 465-66 (App. Div. 2021). The

weight given to the ME's opinion was for the jury to resolve based on the

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evidence, including the ME's testimony during cross-examination. Cf.

Jenewicz, 193 N.J. at 466.

We also reject defendant's claimed discovery violation under Rule

3:13-3(b)(1)(I) related to the ME's report. Prior to trial, the prosecutor provided

a copy of the ME's report to defense counsel. The report included a reference

to discoloration on the underside of the skin of Julius's frontal scalp, as well as

the determination of cause and manner of death. Further, the ME's testimony

did not stray from his areas of qualified expertise. See State v. Jamerson, 153

N.J. 318, 337-38 (1998). In addition, the ME's report simply discussed the

existence of discoloration without opining whether the discoloration constituted

evidence of blunt force trauma. Nothing in the ME's report claimed blunt force

trauma caused or contributed to Julius's death. Nor did the prosecutor pursue a

theory of blunt force trauma in summation. Not once during closing argument

did the prosecutor mention the possibility of blunt force trauma or the

discoloration on Julius's scalp.

On this record, defendant failed to demonstrate a deprivation of her right

to due process related to the ME's testimony.

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VI.

Defendant next argues prosecutorial error during the prosecutor's

summation deprived her of a fair trial. We disagree.

In criminal trials, prosecutors play a dual role: vigorously representing

the State's interests, while assuring the defendant is treated fairly and justice is

done. State v. Williams, 244 N.J. 592, 606-07 (2021). Prosecutors are accorded

"wide latitude" in arguing their case to the jury and may do so forcefully. State

v. Garcia, 245 N.J. 412, 435 (2021). However, prosecutors must not

misrepresent the law or the facts. Id. at 435-36. In presenting arguments,

prosecutors should not stray from the evidence and the legitimate inferences that

can be drawn therefrom. Williams, 244 N.J. at 607.

However, "every prosecutorial misstep will not warrant a new trial."

Garcia, 245 N.J. at 436. We "must measure the prejudicial effect of the

prosecutorial excesses against a defendant's fair trial rights." Ibid. A new trial

is only warranted when, viewing the trial as a whole, the prosecutor's conduct

was so egregious that it substantially prejudiced the defendant's right to have the

jury fairly evaluate the evidence, leading to the possibility of an unjust resu lt.

Ibid.

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Generally, a fleeting remark will not constitute grounds for reversal. State

v. Gorthy, 226 N.J. 516, 540 (2016). "Trials, particularly criminal trials, are not

tidy things. The proper and rational standard is not perfection; as devised and

administered by imperfect humans, no trial can ever be entirely free of even the

smallest defect. Our goal, nonetheless, must always be fairness." State v. R.B.,

183 N.J. 308, 333-34 (2005); see also State v. Weaver, 219 N.J. 131, 155 (2014)

(noting a defendant is entitled to fair trial, not a perfect one).

"Generally, if no objection was made to the improper remarks, the remarks

will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999). "The

failure to object suggests that defense counsel did not believe the remarks were

prejudicial at the time they were made. The failure to object also deprives the

court of an opportunity to take curative action." Id. at 84.

Here, defendant never objected to any remarks during the prosecutor's

summation. Thus, we review for plain error. R. 2:10-2.

Defendant argues the prosecutor improperly shifted the burden of proof to

the defense by commenting upon defendant's whereabouts at the time of Julius's

shooting and disappearance. However, defendant mischaracterizes the

prosecutor's argument.

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Contrary to defendant's claim, the prosecutor did not state defendant was

required to present an alibi. The prosecutor simply noted instances of

defendant's peculiar behavior after Julius disappeared.

Nor did the prosecutor shift the burden of proof to the defendant. Rather,

during the State's closing argument, the prosecutor merely highlighted defense

counsel's failure to address the State's presentation of damaging evidence

against defendant at trial. Defense counsel did not address the following trial

evidence proffered by the State: the couple's breakup just before the November

2015 shooting; defendant's sudden belief after the shooting that the couple

would be engaged; defendant's researching where Harris's children attended

school; and defendant's cell phone communications and records, including the

location of defendant's phone in Linden at the time of the shooting.

Having considered the record, we conclude the prosecutor's comments

during closing argument were not improper references to defendant's failure to

adduce evidence in response to the State's evidence or present an alibi.

Defendant cherry picks the prosecutor's statements in isolation and fails to

consider the overall context in which the comments were made. The prosecutor

made these comments to support the inconsistencies between defendant's

statements to the police and her statements to others.

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The prosecutor also focused on the failure of defendant's statements to

cast doubt regarding other evidence of guilt presented by the State. For example,

the prosecutor noted defendant told the police she took Julius to the Long Branch

train station and then went to Donna's house in Long Branch. However, there

was a significant time gap between defendant allegedly dropping Julius at the

Long Branch train station and visiting Donna's home, located just minutes from

the train station.

Nor did the prosecutor impermissibly refer to facts and inferences not

based on evidence in the record. Specifically, defendant points to the following

statements by the prosecutor regarding Julius's death: "If you're unconscious,

and you're not breathing, it happens a lot quicker" and "I mean, it's a lot easier

to strangle and kill someone when they're unconscious."

Contrary to defendant's assertion, these statements by the prosecutor were

grounded in the evidentiary record. Moreover, many of the statements cited by

defendant as improper were made by the prosecutor in response to defense

counsel's summation.

Nor did the prosecutor improperly vouch for Harris's credibility. The

prosecutor simply noted a party to a cooperation agreement must tell the truth;

otherwise, any plea deal would be vacated. The prosecutor's comment was both

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truthful and based on the evidentiary record. The prosecutor never offered any

personal opinion regarding the truthfulness of Harris's testimony. See State v.

Brown, 138 N.J. 481, 546 (1994) (noting testimony about the obligation to

testify truthfully pursuant to plea agreement). The prosecutor's comment also

responded to defense counsel's attack on Harris's credibility during summation.

Additionally, the absence of any objection during closing arguments indicates

defense counsel did not deem the prosecutor's statements improper. Frost, 158

N.J. at 83-84.

We discern nothing in the record to support defendant's claim that

statements by the prosecutor during summation were impermissible or warrant

the reversal of her conviction.

VII.

We next consider defendant's argument that the judge impermissibly

allowed the State to use her pre-arrest silence against her at trial. Alternatively,

defendant argues "[a]t a minimum, a strong-worded limiting instruction should

have been read to the jurors," and "[b]ecause that was not done here, the jury

was left to proceed on the assumption that defendant's pre[-]arrest silence was

evidence of her guilt."

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Specifically, during Weisbrot's testimony, defendant contends the

prosecutor's questions improperly suggested defendant had an obligation to help

the police solve Julius's shooting by providing unsolicited information about

Harris. Similarly, defendant argues the prosecutor's comments regarding

defendant's failure to implicate Harris during her March 2016 statement to police

were improper.

Because defendant objected to Weisbrot's testimony, we review the

judge's evidentiary ruling for abuse of discretion. Burney, 255 N.J. at 20.

However, defense counsel did not object to the prosecutor's comment on this

issue during summation or request a limiting instruction, so we review these

issues for plain error. R. 2:10-2.

There is a federal constitutional right against self-incrimination, U.S.

Const. amends. V and XIV, and a state common law and statutory privilege

against self-incrimination. State v. Santamaria, 236 N.J. 390, 411 (2019); State

v. Kucinski, 227 N.J. 603, 616-17 (2017). "Under federal law, the use for any

purpose at trial of a defendant's silence after his arrest and the administration of

Miranda warnings violates his or her privilege against self-incrimination and his

or her right to due process." State v. Stas, 212 N.J. 37, 57 (2012).

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Under New Jersey law, "even silence that precedes the administration of

Miranda warnings—if it is 'at or near' the time of a defendant's arrest—cannot

be used for any purpose at trial." Id. at 57-58 (quoting State v. Elkwisni, 190

NJ. 169, 181 (2007)). "However, . . . pre-arrest silence that is not 'at or near' the

time of arrest, when there is no government compulsion and the objective

circumstances demonstrate that a reasonable person in a defendant's position

would have acted differently, can be used to impeach that defendant's credibility

with an appropriate limiting instruction." Id. at 58 (citing State v. Lawrence

Brown, 190 N.J. 144, 158-59 (2007)). "It cannot, however, be used as

substantive evidence of a defendant's guilt." Ibid.

We reject defendant's argument regarding the impermissible use of her

pre-arrest silence during the trial. Here, defendant's voluntary statements to the

police were not made "at or near" the time of her arrest. Although defendant did

not receive Miranda warnings prior to providing either statement, no warnings

were required because defendant was not in custody or a suspect at the time of

her statements to the police. "Evidence of pre-arrest silence, in the absence of

official interrogation, does not implicate the defendant's right against self-

incrimination." State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005).

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Pre-arrest silence may be used to impeach a defendant. Jenkins v.

Anderson, 447 U.S. 231, 238-39 (1980); see also State v. Brown, 118 N.J. 595,

615 (1990) ("[E]vidence regarding pre-arrest silence is admissible if, when

viewed objectively and neutrally in light of all circumstances, it generates an

inference of consciousness of guilt that bears on the credibility of the defendant

when measured against the defendant's apparent exculpatory testimony.").

Although the judge likely erred in failing to advise the jury that evidence

of defendant's silence could be used only to assess the credibility of her

statements to the police, the omission of such a limiting instruction did not

constitute plain error. Defendant's lies and omissions were evident from the cell

phone records admitted as evidence during the trial. Moreover, the judge

instructed the jury regarding its assessment of the credibility of defendant's

statements to the police specifically and the credibility of witnesses generally.

On this record, we are satisfied defendant's constitutional rights were not

violated as the evidence of defendant's pre-arrest silence was not clearly capable

of producing an unjust result.

VIII.

Defendant also challenges the sentence imposed. Defendant asserts the

judge improperly relied on disputed facts in the pre-sentence report during his

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sentencing decision. Additionally, defendant contends her sentence was

disproportionate to the sentence imposed on Harris. We reject defendant's

disproportionate sentencing argument. However, we are constrained to remand

to the trial court for resentencing, relying solely on established facts.

A.

Our sentencing standard of review is well established. We review

sentences "in accordance with a deferential standard." State v. Fuentes, 217 N.J.

57, 70 (2014). We "should not 'substitute [our] judgment for those of our

sentencing courts.'" State v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v.

Case, 220 N.J. 49, 65 (2014)). We will affirm the sentence unless the judge

violated the sentencing guidelines, failed to weigh and balance the aggravating

and mitigating factors based upon competent and credible evidence in the

record, or imposed a sentence that shocks the judicial conscience. State v. Roth,

95 N.J. 334, 364-65 (1984).

At the sentencing hearing, the judge found the following aggravating

factors applied: aggravating factor one, N.J.S.A. 2C:44-1(a)(1), "[t]he nature

and circumstances of the offense, and the role of the actor therein, including

whether or not it was committed in an especially heinous, cruel, or depraved

manner"; aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that

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defendant would commit another offense; aggravating factor nine, N.J.S.A.

2C:44-1(a)(9), the need for deterrence; and aggravating factor fifteen, N.J.S.A.

2C:44-1(a)(15), the fact that the offense involved an act of domestic violence.

Regarding the requested mitigating factors, the judge found the following

factor applied: mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), the defendant's

lack of criminal history or history of delinquency. However, the judge gave this

factor little weight. The judge rejected mitigating factors eight and nine,

N.J.S.A. 2C:44-1(b)(8) and (9), which require "[t]he defendant's conduct was

the result of circumstances unlikely to recur," and "[t]he character and attitude

of the defendant indicate he is unlikely to commit another offense," respectively.

In the judgment of conviction, the judge found the aggravating factors

substantially outweighed any mitigating factors.

Having reviewed the record, we agree with defendant that the judge relied

upon contested facts in his findings on the aggravating and mitigating factors,

and those contested facts were incorporated in the judge's sentencing decision.

Specifically, the judge relied on the following disputed facts: (1) disparaging

remarks made about defendant by her ex-girlfriend and ex-wife; (2) finding

Julius's daughter a second victim in the November 2015 shooting despite the

judge's dismissal of the attempted murder count against defendant (count two);

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and (3) defendant's role in precluding people from visiting Julius after the

shooting because Julius's mother testified she made that decision at her

daughter's request.

There was no evidence introduced at trial about defendant's prior romantic

relationships. In fact, the State did not plan to use any statements it obtained

from defendant's prior romantic partners unless defendant opened the door by

seeking to introduce evidence of her good character. Because defendant never

introduced any evidence of her good character at trial, there was nothing in the

record regarding disparaging remarks from defendant's prior romantic partners.

The pre-sentence report contained negative statements about defendant

and allegations of defendant's physical abuse by two of defendant's former

romantic partners. Those statements in the pre-sentence report were never the

subject of any hearing which would have allowed defendant to rebut those

allegations.

At the sentencing hearing, the judge concluded the incidents described in

the pre-sentence report regarding defendant's prior romantic relationships were

relevant because defendant argued her good character in support of the requested

mitigating factors. Based on our review of the sentencing transcript, the judge

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relied on the incidents between defendant and her prior romantic partners in

rendering his findings on the aggravating and mitigating factors.

Findings by a sentencing judge regarding aggravating and mitigating

factors "must be supported by competent, credible evidence in the record," and

cannot be based upon "[s]peculation and suspicion." Case, 220 N.J. at 64. It is

improper for a sentencing judge to rely upon "unproven, disputed allegations of

the presentence report" without conducting a hearing to resolve any factual

disputes. State v. Hupka, 203 N.J. 222, 240-41 (2010).

Here, the sentencing judge did not conduct a hearing on the disputed facts

in the pre-sentence report. As a result, we are constrained to remand for

reconsideration of the judge's sentencing decision.

A defendant must be sentenced "anew" where resentencing is ordered

unless the remand is for correction of a technical error, or the remand order is

limited in scope. State v. Robinson, 217 N.J. 594, 610-11 (2014) (quoting State

v. Randolph, 210 N.J. 330, 350 (2012)). Such a resentencing entails "a new

analysis of the aggravating and mitigating factors" applicable to the defendant

"as he appears on the day of resentencing." Randolph, 210 N.J. at 354. On

remand, counsel may present arguments regarding the applicable aggravating

and mitigating factors.

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B.

We reject defendant's disparate sentencing argument. Defendant asserts

the ninety-five-year sentence she received is not justified when compared to the

sixteen-year sentence Harris received. A sentencing disparity "may invalidate

an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232

(1996). However, the fact that a co-defendant received a lighter sentence than

a defendant does not establish a sentencing error. Ibid. Disparate sentences

may be justified based on dissimilar defendants. Id. at 232-34.

Based on the record in this case, defendant was more culpable and

committed more offenses against Julius than Harris. Additionally, Harris

pleaded guilty to the charges against him and agreed to testify against defendant

at her trial. Given these facts, even though defendant had no prior criminal

record, the disparate sentences were justified. We discern no abuse of discretion

in the sentence imposed upon defendant as compared to the sentence imposed

on Harris.

We also reject defendant's argument that the judge erred in imposing two

consecutive maximum NERA sentences. The judge heard counsel's arguments

on whether to impose consecutive versus concurrent sentences. After

considering the arguments, the judge explained his reasons for imposing

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consecutive sentences. The judge found there were "two discre[te] and separate

acts of violence against Ms. Julius at different times, different dates[,] and

different locations." Having found there were two separate crimes, the judge

stated:

The sentences as to the first and fourth counts will run

consecutive to the sentence imposed on the sixth and

eighth counts from State v. [Yarbough]. The Court has

found that the crimes set forth in the first and fourth

counts and sixth and eighth counts were separate [acts]

of violence committed on different dates, different

times[,] and different locations. Even though these acts

targeted the same victim, the [c]ourt does not find on

this record that these acts were committed so closely in

time and place, it must constitute a single period of

abhorrent behavior.

The facts and record suggest[,] as alluded to by

the State[,] that there may have been a period of

attempted reconciliation in the interim between the

violent acts[,] further underscoring the separate[ness]

of these acts.

On this record, the judge's imposition of consecutive sentences satisfied

the requirements under State v. Yarbough, 100 N.J. 627, 643-44 (1985). The

judge considered the relevant factors and stated his reasons in support of

consecutive sentences.

Affirmed as to the conviction. Remanded for resentencing in accordance

with this opinion. We do not retain jurisdiction.

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