                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4224-15T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DERRICK FREDERICK,

     Defendant-Appellant.
__________________________

                    Argued September 26, 2018 – Decided January 22, 2019

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 13-05-1281.

                    Cody T. Mason, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Cody T. Mason of counsel
                    and on the brief).

                    Roberta Di Biase, Supervising Assistant Prosecutor,
                    argued the cause for respondent (Joseph D. Coronato,
                    Ocean County Prosecutor, attorney; Samuel J.
                    Marzarella, Chief Appellate Attorney, of counsel;
                    Roberta Di Biase, on the brief).
PER CURIAM

      Defendant Derrick Frederick appeals from judgments of conviction

entered after two severed jury trials. Defendant was convicted in the first trial

– relating to an incident involving the victim, L.H., in Aberdeen – of fourth-

degree criminal trespass, N.J.S.A. 2C:18-3(a), and fourth-degree attempted

criminal sexual contact, N.J.S.A. 2C:5-1; N.J.S.A. 2C:14-3(b), as lesser

included offenses: second-degree burglary, N.J.S.A. 2C:18-2 (count one)1 and

second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1; N.J.S.A.

2C:14-2(a)(3) (count two). In the second trial – relating to an incident involving

the victim, E.R., in Matawan – defendant was convicted of: second-degree

burglary, N.J.S.A. 2C:18-2 (count three); first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(3) (count four); and third-degree criminal restraint,

N.J.S.A. 2C:13-2(a) (count five).

      Defendant raises the following arguments in this appeal:

            POINT I

            FREDERICK'S STATEMENTS SHOULD BE
            SUPPRESSED   AND    HIS  CONVICTIONS
            REVERSED BECAUSE THE POLICE DID NOT
            SEEK CLARIFICATION OR STOP THE FIRST


1
 The numbered counts refer to those in the original indictment. The numbers
were changed on each trial's verdict sheet.
                                                                          A-4224-15T1
                                        2
INTERROGATION    WHEN   HE   DISCUSSED
SEEKING COUNSEL.

A.  THE POLICE WERE REQUIRED TO STOP
THE FIRST INTERROGATION OR SEEK
CLARIFICATION     AFTER    FREDERICK
MENTIONED SEEKING COUNSEL.

B.   FREDERICK'S STATEMENTS FROM THE
SECOND INTERROGATION SHOULD HAVE BEEN
SUPPRESSED BECAUSE THE TAINT FROM THE
FIRST    INTERROGATION    WAS     NOT
ATTENUATED.

C.  THE CONVICTIONS MUST BE REVERSED
BECAUSE THE INADMISSIBLE STATEMENTS
WERE USED TO ATTACK FREDERICK'S
CREDIBILITY IN BOTH TRIALS.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT ADMITTED EVIDENCE,
WITHOUT LIMITING INSTRUCTIONS, THAT
THERE WERE MULTIPLE ALLEGED VICTIMS,
THAT FREDERICK WAS SUSPECTED IN OTHER
BURGLARIES, THAT FREDERICK HAD PEERED
THROUGH APARTMENT WINDOWS, AND THAT
FREDERICK    HAD    POSSIBLE   SEXUAL
COMPULSIONS.

A.  THE    EVIDENCE   OF   FREDERICK'S
ALLEGED BAD ACTS, CRIMES, AND SEXUAL
COMPULSIONS WAS IRRELEVANT AND HIGHLY
PREJUDICIAL, SUCH THAT ITS ADMISSION
REQUIRES REVERSAL.



                                         A-4224-15T1
                  3
B.  EVEN    IF    THE   EVIDENCE   WAS
ADMISSIBLE,    THE   COURT   COMMITTED
REVERSIBLE ERROR IN NOT PROVIDING
PROPER LIMITING INSTRUCTIONS.
POINT III

THE PROSECUTOR ENGAGED IN MISCONDUCT
AMOUNTING TO PLAIN ERROR, INCLUDING
WHEN HE ATTACKED FREDERICK WITH HIS
INFIDELITY, ACCUSED THE DEFENSE OF BEING
PREJUDICED, AND APPEALED TO THE JURY'S
PASSIONS ON THE ISSUE OF SEXUAL ASSAULT.

A.   THE    PROSECUTOR     ENGAGED     IN
MISCONDUCT      WHEN     HE    ATTACKED
FREDERICK'S    CREDIBILITY    WITH    HIS
INFIDELITY, VOUCHED FOR L.H., AND PLAYED
TO THE JURY'S PASSIONS DURING THE
ABERDEEN TRIAL.

B.  THE     PROSECUTOR   ENGAGED    IN
MISCONDUCT WHEN HE WRONGLY ASSERTED
THAT FREDERICK LIED, AND PLAYED TO THE
JURY'S PASSIONS AND UNDULY DISPARAGED
THE DEFENSE REGARDING ALLEGED ANIMUS
AND SEXUAL ASSAULT ISSUES DURING THE
MATAWAN TRIAL.

POINT IV

THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DEPRIVED FREDERICK OF A FAIR
TRIAL IN BOTH CASES AND WARRANTS
REVERAL OF HIS CONVICTIONS.

POINT V



                                            A-4224-15T1
                    4
            A REMAND IS REQUIRED BECAUSE THE COURT
            ERRONEOUSLY        FOUND    AGGRAVATING
            FACTOR ONE, RESTRAINED FREDERICK'S
            ALLOCUTION, DID NOT PROPERLY CALCULATE
            HIS JAIL CREDIT, DID NOT MERGE THE SEXUAL
            ASSAULT AND BURGLARY CONVICTIONS, AND
            DID NOT EXPLAIN THE $2000 N.J.S.A. 2C:14-10
            FINE IMPOSED.

            A.  A REMAND IS REQUIRED BECAUSE THE
            COURT IMPROPERLY FOUND AGGRAVATING
            FACTOR ONE, DID NOT AFFORD A FULL
            OPPORTUNITY TO ALLOCUTE, AND WITHHELD
            A DAY OF EARNED JAIL CREDIT.

            B.  A REMAND IS REQUIRED BECAUSE THE
            COURT ERRED IN NOT MERGING FREDERICK'S
            AGGRAVATED     SEXUAL  ASSAULT    AND
            BURGLARY CONVICTIONS.

            C.   A REMAND IS REQUIRED BECAUSE THE
            COURT DID NOT EXPLAIN THE $2000 N.J.S.A.
            2C:14-10 PENALTY IMPOSED.

      We reject these arguments and affirm defendant's convictions in both

trials. We further affirm in part defendant's sentence arising from the Matawan

trial, but remand to the trial court to reassess the Sex Crimes Victim Treatment

Fund (SCVTF) penalty amount, N.J.S.A. 2C:14-10, and award defendant one

day of jail credit. See R. 3:21-8.




                                                                        A-4224-15T1
                                       5
                                        I

Defendant contends the trial court erred in denying his motion to suppress both

statements he gave to the police "because the detectives continued to interrogate

him after he discussed consulting an attorney during the first [custodial]

interrogation" and his second statement was tainted by the detectives' failure to

seek clarification or stop questioning after he invoked the right to counsel.

      A trial court's decision on a motion to suppress requires our deference to

the court's factual findings so long as they "are supported by sufficient credible

evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). The

deferential standard applies to factual findings based on a video-recorded

statement. State v. S.S., 229 N.J. 360, 379 (2017). "[T]he task of appellate

courts generally is limited to reviewing issues of law. Because legal issues do

not implicate the fact-finding expertise of the trial courts, appellate courts

construe the Constitution, statutes, and common law 'de novo – "with fresh eyes

. . . ."'" Id. at 380 (quoting State v. Morrison, 227 N.J. 295, 308 (2016)). We

need not defer to a trial judge's interpretive conclusions "unless persuaded by

their reasoning." Morrison, 227 N.J. at 308.

      Although the trial court did not address whether defendant was in custody,

it did find the first statement was voluntarily and knowingly made after


                                                                          A-4224-15T1
                                        6
defendant acknowledged he understood the Miranda2 warnings administered by

the detectives. We defer to the court's conclusion based on its findings that the

conversation during the first interview was cordial and defendant's will was not

overborne, all of which are supported by the record.

       The record also supports the trial court's finding that defendant "never said

he didn't want to talk," and that when he "said that he had an attorney back home

. . . in the [United States] Virgin Islands" it was "very clear to the [c]ourt . . . the

[d]efendant's reference to an attorney did not extend beyond the desire to talk to

his attorney about giving a DNA sample. Under no circumstances did he say or

suggest that he wanted to talk to an attorney before speaking further."

       About halfway through the interview, and just before defendant told the

detectives about his arrest and conviction for criminal activity in the Virgin

Islands and that he "chang[ed] everything" after coming to the United States,

the detectives told defendant that they recovered DNA evidence from the crime

scene. They presented defendant with a consent form for his DNA sample and

asked, "Is that something that you would be willing to give us so that we can

drop this issue and rule you out and never have to bother you again?" Defendant

replied, "Okay, I have no problem with it," but added his DNA and fingerprints


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                               A-4224-15T1
                                           7
were "supposed to be on file" in the Virgin Islands due to his "three or four"

arrests and conviction. When defendant told the detectives that he would contact

them and "cooperate with everything" if they wanted "samples, fingerprints,

anything you need," the detectives explained the DNA process and why they

thought it would be "better" if defendant gave a new sample instead of obtaining

records from the Virgin Islands. Defendant tried to assure the detectives of the

accuracy of his Virgin Islands records, saying:

            No, but that's one thing we did, verified before I even
            left the island (inaudible) sit, I have to report for that
            situation. But it is everything accurate on my record. I
            would have to speak to my attorney –

            [Detective]: Okay.

            [Defendant]: – before I give you this. All right? You
            want to know (inaudible) place. You understand?
            Being that you could get held of my records from my
            old cases, or I speak to my attorney, I contact you guys,
            I come down to the detective and –

            [Detective]: Okay.

            [Defendant]: – do it.

            [Detective]: That's fine.

The other half of the thirty-seven minute interview then continued without

defendant's mention of or request for an attorney.



                                                                         A-4224-15T1
                                        8
      We agree with the trial judge's record-supported determination that

defendant did not invoke his right to counsel by saying that he would have to

speak to his attorney – who was in the Virgin Islands – before allowing the

detectives to obtain his Virgin Islands records. 3 The statements, in context,

cannot be viewed as an assertion – clear or ambiguous – of his right to counsel

in connection with the detectives' questioning. See State v. Wright, 97 N.J. 113,

120 (1984) (holding if a suspect's request is unclear, officers are "under an

obligation to clarify the meaning of defendant's remark before proceeding with

further questioning"); State v. Adams, 127 N.J. 438, 447-48 (1992) (requiring

trial courts to examine the totality of the circumstances in determining if the

State proved a defendant's waiver of Fifth Amendment Miranda rights).

      If an invocation at all, it was a limited invocation pertaining only to the

DNA sample. In Adams, our Supreme Court concluded a defendant's decision,

"expressed with no ambiguity whatsoever," after administration of Miranda

warnings, not to give a written statement was not an invocation of his right to

remain silent as to an oral statement. Adams, 127 N.J. at 448-49. The Court


3
   We reject defendant's attempt to link the trial court's early observation that
defendant may be difficult to understand to the State's alleged failure to establish
that his comments about an attorney related to the DNA sample. The trial court,
as evidenced by its findings of fact after listening to both statements, gave no
indication that it could not understand defendant.
                                                                            A-4224-15T1
                                         9
has also ruled a defendant's declaration that he would tell the police "anything

[they] want to know," but would not give a recorded statement without counsel

present, to be a limited invocation of rights that did not prevent the police from

obtaining his unrecorded statement without counsel present. State v. Gerald,

113 N.J. 40, 115-16, 118-19 (1988). Although we determine defendant did not

even equivocally invoke his right to counsel during the first interview, if he did

it was clearly related to obtaining DNA records from the Virgin Islands, not to

the continued questioning. When defendant was asked to provide a DNA sample

toward the end of the two-hour second police-interview, he more clearly stated

that he would "have to speak to [his] attorney first." As the trial court found, he

confirmed that his prior statement about speaking to counsel pertained only to

the request for his DNA sample, and he was willing to continue to talk to the

police. The trial court did not err in denying defendant's motion to suppress his

first statement.

      Inasmuch as the first statement was not infirm, we find no merit in

defendant's contention that the taint from the detectives' failure to honor his right

to counsel during the first interview "carried over to the second interrogation

. . . such that the resulting statements should have also been suppressed." As

such, we need not address whether any taint was attenuated by the passage of


                                                                             A-4224-15T1
                                        10
five weeks between the first and second statements, during which time defendant

was not incarcerated.

      We determine defendant's argument that the inadmissible statements were

improperly used to attack his credibility at trial to be without sufficient merit to

warrant discussion in this written opinion. R. 2:11-3(e)(2). Not only were both

statements admissible, they could be used to impeach defendant's credibility

even if taken in violation of defendant's Miranda rights. Oregon v. Hass, 420

U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); State v. Burris, 145

N.J. 509, 533-36 (1996).

                                             II

      Defendant argues the trial court erred when it failed to exclude bad-acts

evidence concerning: other burglaries and peering into apartment windows ;

defendant's sexual compulsion; and the crimes charged in the severed

indictment. "[E]vidence of other crimes, wrongs, or acts is not admissible to

prove the disposition of a person in order to show that such person acted in

conformity therewith." N.J.R.E. 404(b). "Such evidence may be admitted for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,




                                                                            A-4224-15T1
                                        11
knowledge, identity or absence of mistake or accident when such matters are

relevant to a material issue in dispute." 4 Ibid.

      "[A] trial court's evidentiary rulings are 'entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment.'"

State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J.

469, 484 (1997)). "Under that standard, an appellate court should not substitute

its own judgment for that of the trial court, unless 'the trial court's ruling "was

so wide of the mark that a manifest denial of justice resulted."'" Ibid. (quoting

Marrero, 148 N.J. at 484).

      Defendant also contends that prosecutorial misconduct at each trial,

although not objected to, amounted to plain error because the prosecutor's

comments during each summation were clearly capable of producing an unjust

result. R. 2:10-2. We review defendant's contentions separately for each trial.

                              A. The Aberdeen Trial




4
   Before evidence can be admitted under Rule 404(b), the proponent must
establish: 1) the evidence of the other crime must be admissible as relevant to a
material issue; 2) it must be similar in kind and reasonably close in time to the
offense charged; 3) the evidence of the other crime must be clear and
convincing; and 4) the probative value of the evidence must not be outweighed
by its apparent prejudice. N.J.R.E. 404(b); State v. Cofield, 127 N.J. 328, 338
(1992). The trial court was not asked to, nor did it undertake, this analysis.
                                                                            A-4224-15T1
                                        12
      Defendant lodged no objection to any of the bad-acts evidence during the

first trial involving the Aberdeen crimes alleged in the first and second counts

of the indictment. A trial court's error in admitting testimony "to which there

was no objection" is subject to reversal only if there was plain error, that is "error

'clearly capable of producing an unjust result.'" State v. Branch, 182 N.J. 338,

353 (2005) (quoting Rule 2:10-2). If error is found, "we must consider whether

there is reasonable doubt that the jury would have ruled other than as it did."

Ibid. (quoting State v. Irving, 114 N.J. 427, 447 (1989)).

      Defendant claims evidence was admitted linking him to other burglaries

and to peering into windows at an apartment complex, and that the assistant

prosecutor mentioned same in his opening statement.            In his opening , the

assistant prosecutor told the jury the Aberdeen detective assigned to the case

was informed by a detective in neighboring Matawan, where defendant resided,

that he spoke to defendant "generally about [defendant's] knowledge about

burglaries that were going on in the area." The assistant prosecutor continued,

although they did not detain defendant because the police "had nothing to hold

him . . . they felt very strongly he was a suspect."

      The Aberdeen detective's testimony related that Matawan detectives

informed him that they received a "suspicious call involving [defendant]," who


                                                                              A-4224-15T1
                                         13
was subsequently stopped "in a nearby [apartment] complex . . . at [four or five]

in the morning." As a result of that stop, defendant became a suspect in the

Aberdeen case. The Aberdeen detective then related that, as part of a joint

investigation he and the Matawan detective conducted, they interviewed

defendant and asked him about unsolved burglaries in the area. Although

defendant denied involvement in those crimes, the Aberdeen detective still

considered "defendant to be a person of interest in the investigation."

      The Matawan detective testified that the joint investigation – a common

practice that he said occurred "all the time" between the two towns – involved

the Aberdeen incident, not the other unsolved burglaries. He also related that a

Matawan officer, dispatched to an area on a report of "a black male subject" who

was peering in apartment windows, stopped defendant. Based on the stop, the

Matawan detective said he advised the Aberdeen detective that defendant was a

potential suspect and interviewed defendant "generally if he had any information

about burglaries that were reported in the Matawan, Aberdeen area." After

defendant denied any knowledge of those incidents, the Matawan detective said

defendant was not detained because the police "didn't have information to hold

him." The detective still considered defendant to be a "person of interest"




                                                                          A-4224-15T1
                                      14
causing the police to surveil defendant. That surveillance led to the discovery

of DNA evidence linking defendant to the Aberdeen crimes.

      When viewed in the context of the entire trial, the State never sought to

link the evidence of other burglaries and the peering to defendant. That evidence

only explained how defendant was developed as a suspect in the Aberdeen case.

Any possible taint from the Matawan officer's stop of defendant after he was

observed, as the assistant prosecutor described, "doing suspicious activity," or

the questioning of defendant about other burglaries was buffered by the

detectives' acknowledgement that no evidence linked defendant to any other

crime. Nor was there any mention of the severed Matawan sexual assault. The

Matawan detective's testimony about common joint investigations, and that this

investigation involved only the Aberdeen incident, made clear that defendant

had no connection to any other incident.

      Defendant also alleges error in the admission of portions of his second

statement in which the police referenced sexual attacks against two women –

not just the Aberdeen victim – and also asserted defendant had a sexual

compulsive disorder that led him to commit the crimes.          We note that the

statement underwent substantial redactions after the trial court severed the cases.

Defense counsel reviewed the redacted video statement and transcript, also


                                                                           A-4224-15T1
                                       15
referred to as a listening aid for the jury, and posed no objection to the final,

redacted version.

      There are two sections of the statement in which the Aberdeen detective

references not only L.H. but another woman:

            Yeah, she stabbed you with a knife and we have your
            blood off that knife and that knife is – gives us a
            complete profile of your, of your DNA. So if you need
            help, bro, it's okay, talk to us about it, but these two
            girls here, you didn't know them. You don't know their
            names. You know everybody else that you're banging,
            but you don't know their names. Right? You have a
            problem you need help with? This is America. I don't
            know what it's like in the U.S. Virgin Islands, 'ya know.
            Nobody's judging you, but if you need help, just say it.

            But my point is you didn't know the girl. You went
            there. Admit you have a problem. And you need to
            work on it. You're 32 years old. You could turn your
            life around still, but don't bullshit us and tell us that you
            know these people 'cause you didn't know these people.
            You may have seen them in passing, but they didn't
            invite you in because what do you think we're gonna do
            now, we're going to bring them in and say, oh, you meet
            this guy at 7-Eleven, do you know this guy? And
            they're gonna say, hell, no, I don't know the guy. You're
            beat anyways, so you might as well just tell us exactly
            what happened and maybe we can get you some help.
            Because these girls are gonna tell us they don't know
            you from Adam.

            [(emphasis added).]




                                                                            A-4224-15T1
                                        16
These two brief references are intermingled with colloquy at the end of a long

statement during which all of the other many references were to the Aberdeen

victim alone. The State made no reference to other victims, including the victim

of the crimes charged in the severed counts, at any other time during the trial.

      The foregoing excerpts from defendant's second statement contain some

of the complained-of references to defendant's sexual compulsive disorder – his

so-called "problem." Defendant cites to three other sections:

             – and she says I never had a talk, I never had a
            conversation with anybody about coming to my house
            and having a massage. I would bet everything I own
            that's what she's going to tell me. Let's get off this
            nonsense. Let's talk about what your problem is. You
            can't – you're not going to get better unless you admit
            to your problem. This girl didn't have you come over
            to her house for a massage. You may have seen her at
            7-Eleven, you may have seen her where she lives, but
            you didn't talk to her. You didn't. And maybe you have
            a split personality, I don't know. I'm no doctor. But go
            to, go to be there and tell me, tell me the truth. You
            don't know this girl. This girl surely didn't invite you
            to her house. You know it, I know it, She knows it and
            God knows it. How you gonna get better if you don't
            just come clean with yourself?

            Have we not – have we not treated you like – I'm, I'm
            talking to you. I want to see you get better, man. I feel
            bad that you got yourself in this thing, man, but you got
            a demon that you're struggling with and you need, you
            need to come clean on it.



                                                                          A-4224-15T1
                                      17
            It's okay, dude, but you, you know you want to get
            better. You know you don't want to do this. You know
            you don't want to hurt nobody. You have a mom. You
            have sisters? . . . You have sisters. I know you don't
            want to hurt nobody. But how you gonna change if you
            can't come clean on your problem? You got a problem.

      In summation – ahead of the court's instruction that the jury's assessment

of the credibility of defendant's statement should include the circumstances and

facts as to how the statement was made – defense counsel argued the detectives

did not explore any theories other than that defendant was guilty and that they

lied to him during the interviews in order to elicit a confession. The Aberdeen

detective's remarks about defendant's "problem" can only be viewed as part of

his efforts to get defendant to "come clean" and admit to the crime. The

comments were designed to convince defendant he should admit to the crimes

in order to avail himself of mental health treatment. They were obviously not a

diagnosis of defendant. Nor did the detective suggest or prove any evidence that

there was a source for his comments;5 they were attributable only to the

investigative technique he employed.




5
   In his statement, defendant admitted he tried to get mental health assistance
in the Virgin Islands and that he sometimes heard voices. He also mentioned he
was going to see a psychiatrist. These portions of the statement were redacted
before presentation to the jury.
                                                                        A-4224-15T1
                                       18
      Defendant also claims the State elicited testimony from his then-

girlfriend, "over defense counsel's objection, that she broke up with [defendant]

because 'a lot of things had come about, a lot of questions were coming up' and

she 'started noticing behaviors about him that made [her] feel differently about

him.'" That testimony was actually elicited by the State in response to defense

counsel's cross-examination query if the girlfriend thought defendant "was great

with [the girlfriend's] kids" and if she "thought he was very kind and a good

person." The defense, as the trial court suggested, elicited improper character

evidence from the girlfriend. After the testimony was elicited by the State,

defense counsel did not object; she requested a sidebar conference at which the

court fostered the development of follow-up questioning to which defendant did

not object:

              [ASSISTANT PROSECUTOR]: Ma'am, you were
              asked on cross-examination your . . . opinion of the
              [d]efendant at the time you were dating him and you
              offered an opinion that he was nice to you, he was nice
              to your kids. Do you recall that?

              [GIRLFRIEND]: Yes.

              [ASSISTANT PROSECUTOR]: Now, since that time,
              has your opinion about the [d]efendant . . . that he was
              a good, decent man, has that changed?

              [GIRLFRIEND]: Yes.


                                                                         A-4224-15T1
                                        19
            [ASSISTANT PROSECUTOR]: Has it changed in the
            favorable way or a disfavorable way?

            [GIRLFRIEND]: Disfavorable.

      Defendant's own theory of the case was that he engaged in an affair with

L.H. although he was in a relationship with his girlfriend, and that L.H. cut short

a tryst with him because she thought her boyfriend would discover her affair

with defendant. Indeed, defendant responded affirmatively to his counsel's

questions on direct examination that he was still in a relationship with his

girlfriend when he started a relationship with L.H. and that "this interaction with

[L.H. was] not something that [he] would have wanted [the girlfriend] to know

about." No objection was made when the assistant prosecutor asked defendant

on cross-examination if he deceived the girlfriend "into thinking that she was in

an exclusive relationship"; defendant answered, "yes."

      Infidelity permeated the trial. As defense counsel said of both defendant

and L.H. in summation, "Well, they're both cheating, [they] are both cheating, I

guess, and isn't that kind of what you do[] if you're having an affair; right?

Again, we're all adults." Later in summation, defense counsel acknowledged

defendant was in a dating relationship with the girlfriend who

                   thought they were in a very monogamous
                   relationship, that they weren't seeing other
                   people. She liked him enormously, he was good

                                                                           A-4224-15T1
                                       20
                     around her kids, he took them to the pool, and I
                     think it was very clear that when she found out
                     that he was not faithful, that that relationship was
                     ended and it ended most likely on a sour note.
                     Again, not a crime that we settle in this court.

While none of this testimony or attorney comment should have been permitted,

see N.J.R.E. 405(a); N.J.R.E. 608(a); State v. Parker, 216 N.J. 408, 418-19

(2014); State v. Mondrosch, 108 N.J. Super. 1, 4-5 (App. Div. 1969) (holding

the disposition of a person may not be proved by specific instances of conduct),

the girlfriend never linked defendant's behavior that made her "feel differently"

about him or caused the change in her opinion of him, to any criminal conduct

or other bad acts.

      We are not persuaded by defendant's arguments – at times, freighting the

trial evidence with contrived meaning – that the admission of "[i]rrelevant and

[h]ighly [p]rejudicial" evidence requires reversal. Most of the evidence was

benign.   Other evidence that may have been construed in a vacuum to be

prejudicial was explained away, or at least moderated, by other evidence or the

circumstances of the case.       As to any evidence that was unrelated to the

Aberdeen case, the judge instructed the jury to consider only evidence that was

relevant and material to the charged crimes.




                                                                            A-4224-15T1
                                         21
      Under the plain error standard, no error in the context of the entire trial –

either in the admission of evidence about the unrelated burglaries and peering,

the police accusation of defendant's sexual compulsions, portions of defendant's

statements indicating there were other victims of sexual assault or the assistant

prosecutor's elicitation of defendant's infidelity and his comments thereon – was

clearly capable of producing an unjust result warranting reversal.

      We look askance at the assistant prosecutor's closing remarks after he

appropriately told the jury that defendant took the stand and admitted lying to

the police:

              Who else did he lie to? He lied to the woman that he
              was involved with. He had a serious relationship, he
              knew her children. She even said, when asked by
              [defense counsel], what did you think of the defendant?
              And she said, when I was dating him, I thought he was
              a nice guy. Well, we know her opinion has since
              changed once she got to know the real [defendant]. But
              he's apparently not only a liar but a pretty darn good
              one, because he was able to convince this woman who
              is a nurse, a professional, who had children, that he was
              a good enough guy to be invited into her home, be
              around her children and all the time he was running
              around and doing God only knows what else. So he's a
              good liar. So he got on the stand, he told you he's a liar,
              we know from [the girlfriend] . . . that he's a very good
              liar. So we have a story from a good liar that, hey, it
              could happen.




                                                                            A-4224-15T1
                                         22
The assistant prosecutor's statement was based on evidence that should not have

been admitted. But, not surprisingly in light of defendant's admissions that he

was having an affair with L.H. and the injection of the girlfriend's character

evidence by the defense, no objection was made by the defense. Defendant's

failure to make a timely objection to a prosecutor's improper comment,

"indicates that in the atmosphere of the trial the defense did not believe that the

prosecutor's remarks were prejudicial." State v. Wilson, 57 N.J. 39, 51 (1970).

In the context of the entire record, evidence of defendant's infidelity and the

assistant prosecutor's comments thereon was not "so egregious that it deprived

defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting

State v. Pennington, 119 N.J. 547, 565 (1990)). As we recognized in State v.

Murray, 338 N.J. Super. 80, 87-88 (App. Div. 2001):

            "To justify reversal, the prosecutor's conduct must have
            been 'clearly and unmistakably improper,' and must
            have substantially prejudiced defendant's fundamental
            right to have a jury fairly evaluate the merits of his
            defense." "Generally, if no objection was made to the
            improper remarks, the remarks will not be deemed
            prejudicial." The failure to make a timely objection not
            only indicates the defense did not believe the remarks
            were prejudicial at the time they were made, but also
            deprives the judge of the opportunity to take the
            appropriate curative action. In addition, in reviewing a
            prosecutor's summation, we must consider the context
            in which the challenged portions were made, including
            determining whether the remarks were a measured

                                                                           A-4224-15T1
                                       23
            response to defendant's summation made in an attempt
            to "right the scale."

            [(citations omitted).]

Defendant was extensively cross-examined about numerous inconsistencies in

his statements to the police which were far more germane to the case; he

admitted he lied to the police five times during his second statement.

      We are not persuaded by defendant's argument that the assistant

prosecutor vouched for L.H.'s credibility. The assistant prosecutor's comments

challenged by defendant about L.H.'s modesty, strong fight or flight response,

and her bravery were not at all related to her credibility. Even if the assistant

prosecutor did support L.H.'s credibility, it was in response to a direct attack by

defense counsel in summation: "I'll come right out and say it, she is a liar";

"[t]here are lies and then there are travesties of injustice lies." "A prosecutor

may not express a personal belief or opinion as to the truthfulness of his or her

witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (1993). It is

permissible, however, to "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). At worst, that is what the assistant prosecutor

did here. Contrary to defendant's arguments, the comments were not likely to

                                                                           A-4224-15T1
                                       24
"arouse sympathy for [L.H.] with the jury" because the prosecutor tied them to

the evidence and drew reasonable inferences therefrom.              The assistant

prosecutor's comments were not clearly and unmistakably improper; nor did

they substantially prejudice defendant's right to have the jury fairly evaluate the

merits of his defense.

      Under the plain error standard of review, the alleged error here was not

"sufficient to raise a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004)

(alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "The

mere possibility of an unjust result is not enough." State v. Funderburg, 225

N.J. 66, 79 (2016) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). Reversal

is not warranted.

                             B. The Matawan Trial

      Defendant's reprised arguments regarding the admission of evidence

regarding the Matawan officer's stop after receiving a call about someone

peering in windows and the detectives' questioning of defendant about

burglaries in Matawan and Aberdeen lead to the same result as in the Aberdeen

trial, albeit after considering some additional evidence.




                                                                           A-4224-15T1
                                       25
      The assistant prosecutor, in his opening statement, said the police

investigation of defendant began when the Matawan officer approached the

Matawan detective and told him, a week prior he "went out on [a] suspicious

person call" and "didn't see anyone except [defendant]."           The assistant

prosecutor related the detective then interviewed defendant and "asked him if he

knew anything about the burglaries in the area.         [Defendant] denied any

knowledge and they let him go."

      The officer testified that he responded at approximately 10:00 p.m. to the

call of a "suspicious suspect walking behind the apartment buildings, possibly

looking into the windows of the cars and/or apartments." He searched the area

and found defendant walking away from the apartment complex area. The

officer said defendant explained that he was looking for a stolen bicycle and that

he did not arrest or charge defendant.

      Defense counsel requested a sidebar conference at which she objected to

the testimony that a person "was looking in the windows and looking into the

cars," in apparent violation of a pretrial agreement that the State would elicit

only that the officer responded to "a suspicious person" and not relate that the

person was looking into cars and apartment windows; the trial court confirmed

that agreement.   Counsel moved for a mistrial. The judge denied the motion


                                                                          A-4224-15T1
                                         26
in light of the State's concession that it would ask further questions to eliminate

any prejudice; this testimony followed:

            [ASSISTANT PROSECUTOR]: You later found out
            that other patrol officers who had spoken to the callers
            found out that nobody actually looked inside any of the
            windows of apartment or cars. Is that correct?

            [MATAWAN OFFICER]: Correct.

            [PROSECUTOR]: So, again, considering that the
            people who had called had reported no criminal
            activity, the [defendant] had indicated he was there for
            a legitimate purpose, looking for his lost bike, you let
            him go. Correct?

            [OFFICER]: That is correct.

            [PROSECUTOR]:         And he wasn't charged with
            anything?

            [OFFICER]: No, he was not.

      Defendant also challenges a reference to multiple burglaries during the

Matawan detective's testimony wherein he explained to defendant prior to the

first statement, "we had some burglaries going on within the area . . . and just

wanted to see if he had any information or knowledge . . . that pertained to our

investigations." Defendant also points to references made by detectives during

his first statement, which was played to the jury: "we've had a couple different

little burglaries in town and some, some thefts"; that defendant had "been seen


                                                                           A-4224-15T1
                                       27
out pretty late at night" and "a couple things . . . added up"; "so what about, uh,

some of these little burglaries that we've had . . . you know anything about any

of them?"; "we've actually recovered some DNA and . . . fingerprints"; "[s]o you

basically are . . . saying that you had no involvement in any type of criminal

activity in Matawan or Aberdeen."

      We, again, note defendant did not object to the contents of the statements,

which were redacted for the Matawan trial. Although the record does not

contain a clear statement, as there was prior to the Aberdeen trial, that the

redacted recordings were acceptable, defense counsel confirmed that the only

pretrial issue she raised related to the call to which the Matawan officer

responded.

      As in the Aberdeen case, neither the Matawan detective's testimony nor

defendant's first statement contained any assertion that defendant was involved

in the other burglaries or that his fingerprints or DNA were connected to other

investigations. In fact, defendant denied involvement in any criminal conduct

throughout the interview and the detective admitted before the jury that he did

not have fingerprints or DNA, and his statement to defendant that he did was an

interview "tactic." In the statement, defendant also responded to the detective's

question, "[d]o you stay out real late? You were seen walking around once or


                                                                           A-4224-15T1
                                       28
twice before like really early," by explaining that he walked or jogged in the

early morning. The detective testified that he "didn't pursue any charges" and

"dropped [defendant] off at his girlfriend's house" after the first statement. See

State v. Figueroa, 358 N.J. Super. 317, 325-26 (App. Div. 2003) (finding "no

abuse of discretion in the trial court's treatment" of the defendant's statement

about uncharged robberies because he "did not implicate himself, so it was not

other crimes evidence as to him").

      Defendant challenges as prejudicial portions of his second statement that

indicated there were multiple victims: officers knew he "didn't kill these girls,"

(emphasis added); "[t]hese girls didn’t invite you into their homes. Neither one

of them. You know? And neither one of them are dead, thank God, and they're

all gonna be okay. You didn’t' kill them and I know you didn’t want to kill

them. And I know you didn’t want to hurt them" (emphasis added); and "you

like to overpower them." (emphasis added).




                                                                          A-4224-15T1
                                       29
      Although these references should have been redacted, 6 once again, these

three references by the Matawan7 detective are mingled with dialogue at the end

of a long statement during which all of the other many references were solely to

the Matawan victim. And, again, the State made no reference to other victims,

including the Aberdeen victim, at any other time during the trial, including

summation.

      The detectives' references to defendant's "problem," "demons," "disease,"

and "issues" with which he was struggling for "a long time" were contained in

different portions of the statement than were played at the Aberdeen trial.

Additionally, the Matawan detective responded to defendant's statement that he

was going to see a psychiatrist by speculating about the reason: "I don't know


6
  During a post-trial motion hearing, the trial court recounted the efforts made
to edit the recordings of defendant's interviews, rejecting defendant's contention
that evidence of the Aberdeen trial was adduced during the Matawan trial:

             We scrupulously reviewed the . . . videotape of his
             interview and anything that could have referred in trial
             number two to trial number one was redacted. We did
             the best that we could to separate the . . . two videotapes
             so that there would not be unfair prejudice.
7
   We have utilized the official transcription of defendant's redacted second
statement that was played before the jury in attributing portions of the colloquy
set forth therein to the Matawan and Aberdeen detectives respectively. We note
the listening aid supplied by the State reverses these attributions. Regardless of
which version is correct, our review is the same.
                                                                           A-4224-15T1
                                        30
whether it's a dominance, the overpowering, the anonymity. Maybe it's just a

stranger, 'ya know, a fantasy that you're living out, I don't know."

      When viewed in context, the detectives' remarks were designed to goad

defendant to confess. The Matawan detective, after he offered possible reasons

defendant wanted to see a psychiatrist, asked defendant, "What is it? Can you

enlighten me on it a little bit? [Because] I'm curious." Later, after the Aberdeen

detective told defendant the State's version of the incident, the Matawan

detective pressed:

            When . . . it's all over, man, you feel guilty. Right?
            When something like this happens?

            [DEFENDANT]: Yeah, that is some –

            [DETECTIVE]: Yeah, I know it's not something you
            want to do. It's a demon you're struggling with. Right?
            Am I right?

            [DEFENDANT]: Yeah, it could be.

As was the case in the Aberdeen trial, the detectives' comments were not a

diagnosis of defendant. And, again, the detectives did not suggest or prove any

evidence that there was a source for their comments; they were attributable to

the investigative technique the detectives employed.

      Contrary to defendant's arguments, the admitted evidence was not clearly

capable of producing an unjust result. As in the Aberdeen trial, he was not

                                                                          A-4224-15T1
                                       31
implicated in the peering or other burglaries and thefts about which he was

questioned.    Questions about psychiatric issues and the detectives' false

statements about DNA and fingerprint evidence were interrogation tactics; no

reasonable juror could take the comments to be evidence.              And the brief

references to other victims, when viewed against the DNA evidence and

defendant's statement in which he admitted he was at the crime scene and that

he digitally penetrated E.R., did not inject sufficient prejudice in the trial so that

the jury – which heard a version of events from defendant and E.R. – would not

have found defendant guilty.

      Defendant also contends the prosecutor's comments during summation in

the Matawan trial require reversal because he "falsely stated that [defendant]

lied about where he was on the night of the incident," "unfairly disparaged the

defense, vouched for E.R.'s credibility, and played to the jury's passions when

he accused the defense of anti-Mexican animus and tied the case to larger issues

of sexual assault."

      Defendant points to two instances in which the assistant prosecutor

accused him of lying to the police during his first and second statement about

where he was on the night of the incident, when in fact defendant stated, "I

believe I was at my girl's" and that he would "double-check with her." (emphasis


                                                                              A-4224-15T1
                                         32
added). The assistant prosecutor commented twice about defendant's prior

statements relating to that issue: "He said he was at his girlfriend's . . . . He

wasn’t. She was working." "When he was brought in shortly after, he said [he]

was with [the girlfriend] that night."

      When confronted on cross-examination with both statements, defendant

admitted that when he told the police that he was at his girlfriend's house on the

night of the incident, "[t]hat was not correct." The defendant was then asked,

"And when you told the police that you didn't go to your other friend, Tina's[8]

apartment who also lived in the Mark Hampton Apartments, that was also a lie

because you went there." Defendant answered, "I went there, yes." Defendant

admitted, "neither of these turned out to be correct." When defendant was later

asked, "And you lied to the police about where you were that evening," he

answered:

            Listen, I told the police that I was by Tina's house, the
            first interview. Due to the circumstances that three
            officers came to the complex to pick me up, two was
            Detective Lavallo and his partner and Detective
            Chevalier. Before they went with me, Katina was
            telling me that Detective Chevalier is her friend from
            school. That was her exact words to me.
                   So when I went for questioning and they asked
            me about Tina, I denied being by Tina because I didn't

8
    Defendant's girlfriend, Katina, was also referred to as Tina during the
statements and trials.
                                                                          A-4224-15T1
                                         33
            know exactly why they actually had me here. I don’t
            know if they looking for information to relate to Tina,
            about the next Tina, so I denied being anyplace near
            next to Tina's house.
                   When they came for me for the second interview,
            I clarified to them my exact whereabouts that evening.
            Simple as that.

      It was up to the jury, as instructed by the trial court, to determine what the

facts were "[r]egardless of what the attorneys have said."          The jury was

instructed: "in recalling the evidence in this case . . . it is your recollection of

the evidence that must and should guide you as judges of the facts"; the jury was

told "closings by the attorneys are not evidence and must not be treated by you

as evidence." In light of the defendant's statements and cross-examination, we

perceive no misconduct, much less prejudicial misconduct, in the assistant

prosecutor's comments.

      Defendant also contends the prosecutor's statement about E.R. – "She got

tied up and she wasn't sexually satisfied so she got angry. Let's face it . . . you

know how crazy those Mexicans, are, hot-blooded, and she just called the

police" – was improper and prejudicial.        While we vehemently decry the

assistant prosecutor's insertion of an offensive ethnic stereotype in the trial, we

perceive his sophomoric comment reflected on him, not defendant.                 His

imprudent remark was an attempted response to defense counsel's contention in


                                                                            A-4224-15T1
                                        34
summation that E.R. falsely accused defendant because "she felt so disrespected,

she felt hurt, she was angry" that defendant left during a consensual sexual

assignation. At no time did the assistant prosecutor attribute those words to

defendant.    His irresponsible comment responded to the sharply disputed

versions of the sexual encounter presented by the State and defense counsel's

summation during which she referred to E.R.'s version as a "story" – a false

report.

      Those disputed facts and defense counsel's comments also gave rise to the

assistant prosecutor's purported attempt "to frame the case inside the larger

context of sexual assault in America," when he stated:

                    In this day and age, ladies and gentlemen, it is
             disappointing and difficult that we still deal with the
             myth that women are not sexually assaulted. They're
             just jilted. They didn't like the men. Oh, he's getting
             out, I'm going to get back with him. In this day and age
             when we have jurists on the bench, presidential
             candidates for both parties that we still have these
             myths. You go into that jury room with your common
             sense that balances out, look at the demeanor in which
             people testify. Look at all the facts and circumstances.
             And if we go and look at this he said/she said situation.
             And, again, I hate that term.

Although the prosecutor made comments about "this day and age" and about

presidential candidates and jurists, he did not encourage the jury to convict on

an improper basis but rather tied his comments back to the disputed evidence at

                                                                         A-4224-15T1
                                       35
trial, including defendant's contention that the tryst was consensual and E.R.

falsely accused defendant of sexual assault.     He did not vouch for E.R.'s

credibility.

      In light of those disputed facts and defense counsel's comments, we

determine defendant's argument that the assistant prosecutor unfairly disparaged

the defense by referring to defendant's "story" that E.R. was "jilted" to be

without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      No objection was made to the State's summation. As such, the remarks

generally "will not be deemed prejudicial." Timmendequas, 161 N.J. at 576

(citing State v. Ramseur, 106 N.J. 123, 323 (1987)). "The failure to make a

timely objection not only indicates the defense did not believe the remarks were

prejudicial at the time they were made, but also deprives the judge of the

opportunity to take the appropriate curative action." Murray, 338 N.J. Super. at

87-88 (citing Timmendequas, 161 N.J. at 576). Under that lens, we do not

perceive the State's summation was "clearly and unmistakably improper" and

was "so egregious that it deprived the defendant of a fair trial."         State v.

Wakefield, 190 N.J. 397, 438 (2007) (first quoting State v. Papasavvas, 163 N.J.

565, 625 (2000); then quoting State v. Smith, 167 N.J. 158, 181 (2001)).




                                                                           A-4224-15T1
                                      36
      The admission of improper evidence and the assistant prosecutor's

improper comments are not errors "sufficient to raise a reasonable doubt as to

whether [the errors] led the jury to a result it otherwise might not have reached."

Daniels, 182 N.J. at 95 (quoting Macon, 57 N.J. at 336). "The mere possibility

of an unjust result is not enough." Funderburg, 225 N.J. at 79 (citing Jordan,

147 N.J. at 422). As was the case in the Aberdeen trial, reversal is not warranted

in the Matawan trial.

                              C. Cumulative Error

      The cumulative errors in each trial do not require reversal. Defendant did

not receive a perfect trial in either case, but he received fair ones. State v.

Weaver, 219 N.J. 131, 160 (2014).

                                        III

      Defendant challenges the sentence imposed in connection with only the

Matawan trial.     He received a twenty-year prison term for first-degree

aggravated sexual assault on count four, a ten-year term for second-degree

burglary on count three concurrent to count four, and a five-year term for third-

degree criminal restraint on count five concurrent to counts three and four.

      We determine his argument that "the court did not give [defendant] a full

opportunity to allocute," and improperly found aggravating factor one, to be


                                                                           A-4224-15T1
                                       37
without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

He was afforded the right to allocute pursuant to Rule 3:21-4(b).

      Contrary to defendant's contention, the court's finding of aggravating

factor one was supported by the competent evidence in the record including the

trial evidence. State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Natale, 184

N.J. 458, 489 (2005)).

      We also reject his argument that the court erred in failing to merge the

burglary with the aggravated sexual assault.      Our previous analysis of the

statutory elements of each of those crimes led "us to conclude that the

Legislature intended to and did create separate and distinct offenses for burglary

and sexual assault which do not merge." State v. Adams, 227 N.J. Super. 51, 63

(App. Div. 1988); see also State v. Mosch, 214 N.J. Super. 457, 465 (App. Div.

1986); c.f. State v. Cole, 120 N.J. 321, 332-33 (1990).

      We do find merit in defendant's contention that the court imposed a $2000

SCVTF penalty, N.J.S.A. 2C:14-10(a)(1) – the statutory maximum amount –

"without commenting on the nature of the offense, [defendant's] ability to pay

despite his indigent status, or the reasons for imposing the maximum penalty."

"[T]he sentencing court should provide a statement of reasons when it sets a

defendant's SCVTF penalty within the statutory parameters." State v. Bolvito,


                                                                          A-4224-15T1
                                       38
217 N.J. 221, 235 (2014). The court is required to assess "a defendant's ability

to pay" by looking "beyond the defendant's current assets and anticipated income

during the period of incarceration." Id. at 234. There is no indication this was

done here, requiring vacation of the SCVTF penalty and a remand for the

purpose of reassessing the penalty amount. Furthermore, during the remand

proceedings the court should award defendant additional jail credit; the State

concedes defendant is entitled to one day jail credit from the date of his arrest

on September 28, 2012.

      Affirmed in part; remanded to address the SCVTF penalty and to award

one day jail credit. We do not retain jurisdiction.




                                                                         A-4224-15T1
                                       39
