                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4920-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY     BARHAM, a/k/a TONEY
BARHAM,     ANTHONY MAURICE
BARHAM,     JEFF RICHARDSON and
MAURICE     WILLIAMS,

        Defendant-Appellant.

_____________________________

              Submitted May 8, 2018 – Decided July 10, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 12-
              12-2881.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele A. Adubato, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Matthew
              E. Hanley, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant   appeals   from   his   convictions   for   third-degree

criminal restraint, N.J.S.A. 2C:13-2(a) (count one as amended);

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count three

as amended); and third-degree terroristic threats, N.J.S.A. 2C:12-

3(b) (count five) arguing:

          POINT I

          IT WAS IMPROPER FOR THE TRIAL COURT TO AMEND
          THE INDICTMENT CHARGING ANOTHER STATUTORY
          OFFENSE OVER THE OBJECTION OF DEFENDANT.

          POINT II

          THE TRIAL COURT'S REFUSAL TO STRIKE THE JURY
          PANEL FOLLOWING THE DISCLOSURE THAT JURORS HAD
          DONE INTERNET RESEARCH ON THE CASE WAS ERROR
          AND DENIED DEFENDANT A FAIR TRIAL.

          POINT III

          THE TESTIMONY OF NURSE O'DONNELL WAS IMPROPER
          AND EXCEEDED THE PROPER LIMITS OF TESTIMONY
          OF LAY WITNESSES.

          POINT IV

          DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
          SHOULD HAVE BEEN GRANTED FOR THE STATE'S
          FAILURE TO ESTABLISH CHAIN OF CUSTODY.

          POINT V

          COMMENTS MADE BY THE PROSECUTOR DURING HER
          SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.

          POINT VI

          THE AGGREGATE SENTENCE IMPOSED BY THE COURT
          OF THIRTY (30) YEARS WITH TWENTY-TWO YEARS


                                   2                             A-4920-15T2
           (22) OF PAROLE INELIGIBILITY WAS EXCESSIVE AND
           SHOULD BE REDUCED.

We agree with the State's concession that the sentence imposed was

barred by statute.    We therefore remand the case for resentencing

but otherwise affirm the convictions.

                                     I

     The trial court granted the State's Rule 3:7-4 motion to

amend the third count of the indictment from second-degree sexual

assault under N.J.S.A. 2C:14-2(c)(1), to second-degree sexual

assault under N.J.S.A. 2C:14-2(c)(4), a charge that had not been

presented to the grand jury.     We review a trial court's decision

to amend an indictment under an abuse of discretion standard.        See

State v. Reid, 148 N.J. Super. 263, 266 (App. Div. 1977).

     Our   Supreme   Court   ruled   the   constitutional   protections

afforded under Article I, Paragraphs 8 and 10 of the New Jersey

Constitution1 necessitate that:

           First,   an  indictment    must  "inform   the
           defendant of the . . . offense charged against
           him, so that he may adequately prepare his
           defense." State v. Lefante, 12 N.J. 505, 509
           (1953); see State v. Wein, 80 N.J. 491, 497
           (1979); State v. La Fera, 35 N.J. 75, 81
           (1961); State ex rel. Bruneel v. Bruneel, 14

1
 "No person shall be held to answer for a criminal offense, unless
on the presentment or indictment of a grand jury . . . ." N.J.
Const. art. I, ¶ 8.    "In all criminal prosecutions the accused
shall have the right . . . to be informed of the nature and cause
of the accusation . . . ." N.J. Const. art. I, ¶ 10.


                                     3                          A-4920-15T2
           N.J. 53, 60 (1953).    Second, the indictment
           must be sufficiently specific to enable the
           defendant to avoid a subsequent prosecution
           for the same offense. Wein, 80 N.J. at 497;
           La Fera, 35 N.J. at 81; Lefante, 12 N.J. at
           509.     Finally, the indictment must be
           sufficiently   specific   "to   preclude  the
           substitution by a trial jury of an offense
           which the grand jury did not in fact consider
           or charge." State v. Boratto, 80 N.J. 506,
           519 (1979); Wein, 80 N.J. at 497; La Fera, 35
           N.J. at 81.

           [State v.       LeFurge,   101   N.J.    404,    414-15
           (1986).]

     Defendant does not suggest he was prejudiced by the amendment

or that he was unprepared to meet the amended charge.            He contends

the change to the charge involved a substantive error in the

indictment that was corrected by the addition of a substantially

different offense, providing a different element which required a

re-presentment to the grand jury.

     Both sections of N.J.S.A. 2C:14-2(c) proscribe the commission

of "an act of sexual penetration with another person."                     The

indicted charge requires that the State prove "[t]he actor use[d]

physical force or coercion" even though the victim did not "sustain

severe personal injury."        N.J.S.A. 2C:14-2(c)(1).         The amended

charge   has   different    elements:     "[t]he   victim   [was]    at   least

[thirteen] but less than [sixteen] years old and the actor [was]

at least four years older than the victim."                 N.J.S.A. 2C:14-

2(c)(4).

                                      4                               A-4920-15T2
       "In order to preserve the grand-jury function and protect the

constitutional guarantee to indictment by a grand jury, [our

Supreme] Court has insisted that 'the indictment must allege all

the essential facts of the crime, lest an accused be brought to

trial for an offense the grand jury did not find.'"      LeFurge, 101

N.J. at 418 (quoting La Fera, 35 N.J. at 81).    A trial court may,

pursuant to Rule 3:7-4 amend an indictment "to correct an error

in . . . the description of the crime intended to be charged . .

. provided that the amendment does not charge another or different

offense from that alleged and the defendant will not be prejudiced

thereby in his or her defense on the merits."        The "description

of the crime may be changed unless it is 'an essential element.'"

State v. Walker, 322 N.J. Super. 535, 553 (App. Div. 1999) (quoting

State v. J.S., 222 N.J. Super. 247, 258 (App. Div. 1988)).

       We have not been provided with a copy of the grand jury

transcript, but perceive from the third and fourth counts of the

indictment that the panel was presented with evidence to find

N.G.'s date of birth is June 10, 1998, and he was thirteen on the

date of the crime.    Inasmuch as defendant was tried as an adult,

he had to be at least eighteen – more than four years older than

N.G.    We perceive no challenge to the trial court's jurisdiction

based on defendant's age.    See N.J.S.A. 2C:4-11.



                                  5                           A-4920-15T2
     Although the amended charge was not presented to the grand

jury, evidence proving the elements of the charge was sufficiently

placed before the panel save for defendant's age.2                  While the

better course would have been to present evidence related to the

elements of sexual assault under N.J.S.A. 2C:14-2(c)(4) to the

grand jury,      we see no infraction of the tripartite constitutional

guarantees, LeFurge, 101 N.J. at 414-15, by the trial court's

amendment of one second-degree sexual assault with another second-

degree sexual assault when the only difference in the elements of

those crimes was the ages of the victim and defendant; the former

was proved by the evidence, the latter was implicated.

                                    II

     After the court and both counsel were advised that a juror –

identified as "Juror Number 10" — informed a court officer she

heard    other    jurors   discussing       their   internet   research     about

defendant and the case, defense counsel moved to strike the jury

panel.     The trial court, in counsel's presence, individually

interviewed Juror Number 10 who said that on the day before as the

jurors were waiting to enter the courtroom after lunch

            there were a lot of people having loud
            conversations about this, that and the other.
            And then one guy said, and he's here,
            something about the nature of the case. And

2
  Such evidence may have been presented but the devoid record does
not inform us.

                                        6                                 A-4920-15T2
          then he said [he] Googled it and [the lady he
          was conversing with] said, me, too. And then
          he started talking about, well, he's out on
          bond for half a million dollars.     And then
          finally somebody next to me said, you know,
          you're not supposed to be talking about it.

She later, answering defense counsel's question, recalled "he just

said something about sexual assault" – one of the charges against

defendant. When asked by the assistant prosecutor about the number

of people in the general area, Juror Number 10 said, "Twenty?

Maybe more."

     Defense counsel resisted the court's stated plan to conduct

a voir dire of the other jurors to ascertain "how far the research

went" and how many people were present during the conversation,

rather than simply dismissing the entire panel.       The court later

denied defendant's application to strike the panel.

     Jury selection continued into the next court day, during

which jurors were asked questions regarding internet research and

discussions about same.   Arguing there were "still conversations

. . . about Googling [and] Google searches," defense counsel

renewed defendant's application to strike the panel.        The court

denied the motion which defendant now contends, quoting the Court

in State v. Bey, 112 N.J. 45, 75 (1988), deprived him of a

constitutionally   guaranteed   "jury   that   is   free   of   outside




                                 7                              A-4920-15T2
influences and will decide the case according to the evidence and

arguments presented."

     Our standard of review recognizes "the trial court is in the

best position to determine whether the jury has been tainted."

State v. R.D., 169 N.J. 551, 559 (2001).    "The abuse of discretion

standard   of   review   should   pertain    when   reviewing      such

determinations of a trial court.      Application of that standard

respects the trial court's unique perspective."     Ibid.   And in the

context of juror exposure to pretrial publicity, our Supreme Court

ruled:

           The appellate standard for reviewing a voir
           dire procedure is whether, despite the trial
           court's efforts, there still existed a
           "realistic likelihood of prejudice" resulting
           from pretrial publicity. State v. Williams,
           93 N.J. 39, 63 (1983).

           Preliminarily,   an  appellate    court  must
           distinguish "between cases in which the trial
           atmosphere is so corrupted by publicity that
           prejudice may be presumed, and cases in which
           pretrial publicity, while extensive, is less
           intrusive, making the determinative issue the
           actual effect of the publicity on the
           impartiality of the jury panel."     State v.
           Biegenwald (Biegenwald I), 106 N.J. 13, 33
           (1987) (citations omitted). . . .

           When a court cannot assume prejudice, the
           inquiry to determine the existence of a
           realistic likelihood of prejudice is whether
           under the totality of the circumstances the
           voir dire resulted in a fair and impartial
           jury.   State v. Biegenwald (Biegenwald II),
           126 N.J. 1, 22-23 (1991).    In making that

                                  8                            A-4920-15T2
           determination, an appellate court should show
           appropriate deference to the trial court's
           assessment   of  "matters   of   credibility,
           judgment and discretion which should not
           ordinarily be disturbed on appeal." State v.
           Gary, 229 N.J. Super. 102, 111 (App. Div.
           1988); see also State v. Singletary, 80 N.J.
           55, 63-64 (1979); State v. Jackson, 43 N.J.
           148, 160 (1964).

           [State v. Harvey, 151 N.J. 117, 211 (1997).]

     The trial court properly declined defense counsel's urging

to strike the panel before determining what was discussed or

overheard.   The court heeded the Supreme Court's directive in Bey

– as we later synopsized in State v. Scherzer, 301 N.J. Super.

363, 487 (App. Div. 1997) – that required the court

           to first examine the information to determine
           if it has the capacity to prejudice the
           defendant, and if it does, the judge must
           conduct voir dire, preferably individually in
           camera, to determine whether any jurors were
           exposed to the information. Bey, 112 N.J. at
           84-86. If they were, the judge then questions
           each juror individually to determine what
           information was learned and whether the juror
           is capable of deciding the case impartially,
           based solely on the evidence presented at
           trial. Id. at 86-87.

     The court's voir dire about the reach of the jurors' research

and discussions is not challenged on appeal.             Moreover, defendant

does not point to any non-evidential information to which some

jurors   were   exposed,   revealed       during   the   voir   dire,     which

potentially impacted their ability to decide the case impartially.


                                      9                                 A-4920-15T2
Defendant    instead    contends   that     his   submission   of    appended

"substantial extraneous material . . . contained . . . internet

articles    about   defendant   and   the   case.    In   addition    to   the

[indicted] charges, mention was made of [defendant's] $500,000[]

bail, that he was on parole supervision on GPS and he was a former

Megan's Law violator."

     We perceive nothing from the trial court's voir dire, or

otherwise, that there is a "realistic possibility" that any juror

accessed the extraneous internet material that defendant appended.

See Bey, 112 N.J. at 86 (requiring a court, once "satisfied that

. . . published information has the capacity to prejudice the

defendant" to "determine if there is a realistic possibility that

such information may have reached one or more of the jurors" by

conducting a voir dire to determine juror exposure).                Appending

the internet search results to his brief does not establish a

realistic possibility that jurors found that information.                  The

trial court, after conducting the voir dire of "all the rest of

the [jurors]," found "they either didn't hear it at all, didn't

consider it, and if they did hear something about bail it didn't

matter anyway."        He further found that the questioned jurors

"either said they didn't hear anything, they haven't done any

research, or one mentioned that a prior juror was gonna get excused



                                      10                              A-4920-15T2
[for an unrelated reason] did the research but they didn't discuss

it further."

     Even when a juror has been exposed to extraneous information,

a new trial is not always necessary.            R.D., 169 N.J. at 559.       The

United    States   Supreme     Court        recognized,   "it   is    virtually

impossible to shield jurors from every contact or influence that

might theoretically affect their vote."              Smith v. Phillips, 455

U.S. 209, 217 (1982).          "Due process means a jury capable and

willing to decide the case solely on the evidence before it, and

a trial judge ever watchful to prevent prejudicial occurrences and

to determine the effect of such occurrences when they happen."

Ibid.

     We see no abuse of discretion in the trial court's findings,

after    voir   dire,   that    the    jurors'     exposure     to   extraneous

information did not have the capacity to influence their decision,

warranting dismissal of the panel.              Under the circumstances, we

determine a realistic likelihood of prejudice was not established;

the procedure implemented by the trial court resulted in a fair

and impartial jury.




                                       11                               A-4920-15T2
                                  III

       In considering defendant's argument that the SANE3 nurse's

testimony exceeded the proper limits of lay witness testimony, we

first clarify that, notwithstanding citations by both parties to

N.J.R.E. 701 regarding lay witnesses, defendant challenges the

nurse's testimony only to the extent that it bolstered N.G.'s

credibility; not that it was inadmissible under the lay witness

evidence rule. Indeed, the trial judge sustained defense counsel's

objection to the State's attempt to elicit the reason why N.G. did

not suffer visual anal tearing despite allegations of penile-anal

penetration.

       The SANE nurse, after recounting the version of events N.G.

related    during   a   pre-examination   interview,   identified   and

described the abrasions depicted in photographs she took of N.G.

on the morning of the exam.       The following colloquy took place

during direct examination regarding the first two photographs:

                  [PROSECUTOR:] We’ll start with S-17M as
            in Mary. May I ask again for -- to explain
            what’s in the photo.

            [SANE NURSE:] This is an abrasion to the
            patient’s left knee that he says was sustained
            during his struggle. He said he was running
            out the car, he fell a couple of times, he was
            put up against a concrete wall. So this is
            consistent with what he told me.


3
    Sexual Assault Nurse Examiner.

                                  12                           A-4920-15T2
                . . . .

                [PROSECUTOR]: S-17H is being published.

           . . . .

                [PROSECUTOR:] What is in that photo?

           [SANE NURSE:] That looks like an abrasion to
           his right buttock, or scratch mark, again,
           consistent with the story that was told to me
           by the patient about the struggle that he had.

                . . . .

           . . . So this could be a scratch. It could
           be an abrasion from concrete.      Regardless,
           it’s still an abrasion. Abrasion just means
           that the skin has been taken away from the
           surface of the body. There’s no redness. It
           wasn’t deep enough to cause any bleeding, but
           it’s still an abrasion.        There are all
           different types of abrasions, different grades
           depending on how deep.

                [PROSECUTOR:] Was that consistent with
           the story?

           [SANE NURSE:] Yes, it was consistent.

     Defense counsel objected, not to the testimony that the photos

depicted abrasions, but to the nurse's conclusions "that something

is consistent with [N.G.'s] story would be inappropriate as a non-

expert."   The judge sustained the objection "as to form" and told

the prosecutor, "You might want to re-ask the question"; the

following ensued:

                 [PROSECUTOR:] This abrasion occurred
           based on what the, what the victim told you?

           [SANE NURSE:] Yes.


                                13                          A-4920-15T2
               [PROSECUTOR:] Okay.            It   was,    it   was
          consistent with that?

          [SANE NURSE:] Yes.

                [PROSECUTOR:] What he told you.

          [SANE NURSE:] Yes.

Defense counsel objected; it was summarily overruled.                 The nurse

identified   abrasions   in    two    other   photos,     testifying    without

further objection, that one was "consistent with the story that

was told me [by N.G.] that morning," and the other was "consistent

again, with the injuries that he described he had."

     After the State's failed attempt to elicit why N.G. did not

experience   anal   tearing,    the    prosecutor   continued     her    direct

examination of the nurse:

                [PROSECUTOR:] Ms. O’Donnell, did it, did
          it draw alarm to you that there was -- did the
          victim have tearing in this case?

          [SANE NURSE:] No.

               [PROSECUTOR:] All right.            Did that draw
          alarm to you?

          [SANE NURSE:] No.

               [PROSECUTOR:] Was there anything, did you
          still, based on the information that you
          provided, did you still believe that anal
          penetration had occurred?

          [SANE NURSE:] The victim told me that he was,
          so I treat it as such and attempt to collect
          evidence.




                                      14                                A-4920-15T2
                [PROSECUTOR:] The lack of the tearing,
           did that conflict in any way with his story?

           [SANE NURSE:] No.

No objection was made.

      "In general, a trial court is afforded 'considerable latitude

regarding the admission of evidence,' and is to be reversed only

if the court abused its discretion."        State v. Nelson, 173 N.J.

417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)).

This is because a trial court, having "intimate knowledge of the

case, is in the best position to engage in this balancing process."

State v. Ramseur, 106 N.J. 123, 266 (1987).

      The issue of credibility "is peculiarly within the jury's ken

and with respect to which ordinarily jurors require no expert

assistance."    State v. J.Q., 252 N.J. Super. 11, 39 (App. Div.

1991), aff'd, 130 N.J. 554 (1993).      We also think that comment is

apropos to non-experts because "the jury is charged with making

credibility determinations based on ordinary experiences of life

and   common   knowledge   about   human   nature,   as   well   as   upon

observations of the demeanor and character of the witness."           State

v. Jamerson, 153 N.J. 318, 341 (1998).

      Contrary to defendant's argument that "the questions posed

to the nurse regarding whether N.G.'s abrasions were consistent

with his version of events was nothing more than a veiled attempt



                                   15                             A-4920-15T2
to bolster [his] credibility," a careful review of the record

reveals that was not the case.    The nurse made clear her "report

is the alleged victim's account of what happened to [him] on that

particular instance. . . . It's [his] account of what happened .

. . ."   Her testimony was clearly dependent on whether the jury

believed N.G.'s testimony.     When the nurse testified that the

abrasions were consistent with what N.G. told her, it is obvious

she meant that the injuries matched "the story" N.G. told her.     At

no time did she ever state she believed N.G.'s version or accepted

it as true.   That decision was left to the jury in this case in

accordance with the trial court's instruction to the jury on their

role in judging credibility.

     As to the testimony regarding the lack of anal tearing,

because no objection was made, it must be judged under the plain-

error standard: that is, whether its admission "is of such a nature

as to have been clearly capable of producing an unjust result."

R. 2:10-2; State v. Macon, 57 N.J. 325, 335-37 (1971).

     We are unpersuaded by defendant's similar argument that that

testimony improperly bolstered N.G.'s credibility.   We disapprove

of the question posed by the prosecutor: "based on the information

that you provided, did you still believe that anal penetration had

occurred?"    The nurse's answer, however, did not follow the

prejudicial path: "The victim told me that he was, so I treat[ed]

                                 16                         A-4920-15T2
it as such and attempt[ed] to collect evidence."              So when the

nurse negatively answered the prosecutor's question — "The lack

of the tearing, did that conflict in any way with his story?" —

the issue of N.G.'s credibility was again left in the jury's hands.

It was already established that the victim alleged only the tip

of defendant's penis penetrated his anal cavity.              The lack of

tearing did not conflict with N.G.'s version.          Although the better

course would have been to curtail the State's comparative pursuit,

we do not determine this brief line of questioning amounted to

plain error.

                                   IV

     Defendant claims five comments made by the prosecutor during

her summation – none of which were objected to — "substantially

prejudiced defendant's right to a fair evaluation of his case and

had a clear capacity to affect the verdict" because she demeaned

the defense, commented on facts not in evidence and vouched for

witnesses' credibility.

     The mere "finding of prosecutorial misconduct does not end a

reviewing court's inquiry because, in order to justify reversal,

the misconduct must have been 'so egregious that it deprived the

defendant of a fair trial.'"      State v. Smith, 167 N.J. 158, 181

(2001)   (quoting   State   v.   Frost,   158   N.J.    76,   83   (1999)).

Accordingly, the prosecutor's statements must constitute a clear

                                   17                               A-4920-15T2
infraction    that   substantially   prejudiced   the   defendant's

fundamental right to have the jury fairly evaluate the merits of

his or her defense.    State v. Roach, 146 N.J. 208, 219 (1996);

State v. Bucanis, 26 N.J. 45, 56-57 (1958).

     Besides averring the prosecutor "commenced her summation

stating that defense arguments were meant to 'mislead and confuse

you,'" defendant quotes — often incorrectly and out of context —

other snippets of the prosecutor's summation:

First:

               Again, the witness has no motive to
          deceive you, she supports and corroborates
          what N.G. has already told you, and she has
          no bias in the case. I submit to you that she
          was credible, and supports and corroborates
          everything that N.G. told you.

Second:

               Again,    we're   talking    about    an
          identification 10 months later. No. That's
          called an investigation that took 10 months.
          That's called the State making sure and
          corroborating   and  finding   evidence   and
          speaking to people sending the DNA out, doing
          an investigation.

Third:

          I   heard   surveillance    tapes.      Yeah.
          Surveillance tapes can __ __ a little,
          especially if you have them high up on
          warehouse, can come off a little blurry.

And fourth:

          I think defense in her argument we don’t Know
          how it got there I submit it got there by

                                18                          A-4920-15T2
             vehicle.   It got sent by car.   I mean the
             person who actually picked this up and then
             put it in the car and got it to Annette
             Estilow. No, that person didn't testify . .
             . But Annette Estilow testified and she
             received the kit.

     We   consider   the   summation      in    its   entirety    in   order     to

ascertain the "fair import" of the State's closing.                    State v.

Wakefield, 190 N.J. 397, 457 (2007).

     Notwithstanding defendant's argument, the prosecutor did not

contend   defense    counsel's    entire       summation    was   intended     "to

mislead and confuse" the jury.         The prosecutor responded to that

portion of defense counsel's summation where she said the nurse

worked for the Essex County Prosecutor's Office; the prosecutor

attempted    to   dispel   the   implication      that     "there's    some    big

conspiracy" between the nurse and prosecutor.

     Another portion cited by defendant was edited to obfuscate

the prosecutor's purpose in telling the jury why the nurse's

testimony was credible.      Defense counsel started her summation by

telling the jury, "When it comes to the testimony of witnesses you

are to consider their credibility, their demeanor, who called them

here,   do   they   have   any   motive    or    bias    to   testify?"        The

prosecutor's full comments about the nurse clearly shows she was

responding to defense counsel's statement, and defense counsel's

attack on the procedures followed by the nurse in examining N.G.


                                    19                                    A-4920-15T2
      "A prosecutor may argue that a witness is credible, so long

as the prosecutor does not personally vouch for the witness or

refer to matters outside the record as support for the witness's

credibility."      State v. Walden, 370 N.J. Super. 549, 560 (App.

Div. 2004).     Weighing defendant's failure to object to the remarks

at the time they were made against the offending conduct, we cannot

conclude the prosecutor's tactics "interfer[ed] with the jury's

right to make the credibility determination," Frost, 158 N.J. at

88, or deprived defendant of a verdict that "fairly reflected the

evidence," State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005).

      Defendant does not make clear the basis for his objection to

the prosecutor's comment about N.G.'s identification of defendant

ten months after the incident. We perceive that she was responding

to defense counsel's comments regarding the time lag between the

crime and the identification.

      We   also   find   misleading    defendant's    argument     that   the

prosecutor "made statements that were not in evidence" when she

referenced surveillance tapes.             Again, the snippet quoted by

defendant in his merits brief does not allow a full appraisal of

the   State's     summation   which    directly   responded   to    defense

counsel's argument that the State presented no evidence regarding

any efforts to locate surveillance tapes.         The prosecutor did not

comment on tapes as if they were evidence.           She rebutted defense

                                      20                             A-4920-15T2
counsel's point and focused on what she argued was better evidence

– DNA.

      The State concedes there was no evidence to support the

prosecutor's comment – in an attempt to establish a full chain of

custody – that the DNA evidence was transported by car to the New

Jersey State Police forensic scientist.

      We determine the summation taken as a whole – considering the

prosecutor's misstatement – was not "so egregious that it deprived

the defendant of a fair trial."           Frost, 158 N.J. at 83.      The jury

had   the   opportunity      to   consider    defendant's    attack    on    the

transportation of the DNA evidence and was instructed counsel's

comments    in   summation    were   not     evidence.      The   prosecutor's

unsupported comment did not amount to a clear infraction that

substantially prejudiced defendant's fundamental right to have the

jury fairly evaluate the merits of his case.

                                       V

      Defendant's    argument      that    his   motion   for     judgment    of

acquittal should have been granted because the State failed to

establish the chain of custody for a buccal swab taken from




                                      21                               A-4920-15T2
defendant is without sufficient merit to warrant discussion in

this opinion.4     R. 2:11-3(e)(2).

     A motion for judgment of acquittal at the close of the State's

case may be granted "if the evidence is insufficient to warrant a

conviction."      R. 3:18-1.

           [T]he question the trial judge must determine
           is whether, viewing the State's evidence in
           its entirety, be that evidence direct or
           circumstantial, and giving the State the
           benefit of all its favorable testimony as well
           as all of the favorable inferences which
           reasonably could be drawn therefrom, a
           reasonable jury could find guilt of the charge
           beyond a reasonable doubt.

           [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

     N.G.'s testimony about the assault and his identification of

defendant were sufficient to defeat that motion, even without the

DNA evidence.

                                       VI

     The trial court granted the State's motion for extended terms

on all three convictions and sentenced defendant to the maximum

prison   terms:    twenty   years   for     second-degree   sexual   assault,

concurrent   to    ten   years   for   third-degree   criminal   restraint,

consecutive to ten years for third-degree terroristic threats.



4
 We note the buccal swab was not entered into evidence; we suppose
that is the reason the chain of custody evidence was not challenged
in an evidentiary motion.

                                       22                             A-4920-15T2
The trial court's imposition of extended terms – mandatory on

count three and discretionary on counts one and five – as conceded

by the State, was illegal.    See State v. Robinson, 217 N.J. 594,

598 (2014) (holding "the plain language of N.J.S.A. 2C:44-5(a)(2)

bars the imposition of a discretionary extended term when the

prosecutor has requested one and the trial court is obliged to

impose a mandatory extended term on another offense in the same

proceeding").    As   in   Robinson,   "[o]ur   disposition   requires

vacation of defendant's sentence and that the matter be remanded

for imposition of a new sentence," necessitating a new sentencing

proceeding, id. at 611, at which "the trial court should view

defendant as he stands before the court on that day," State v.

Randolph, 210 N.J. 330, 354 (2012). We therefore need not consider

defendant's excessive sentencing argument.

     Affirmed but remanded for resentencing proceedings.            The

amended judgment of conviction should reflect the proper statutory

citation for the count-three crime: N.J.S.A. 2C:14-2(c)(4).           We

do not retain jurisdiction.




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