                                 NOT FOR PUBLICATION WITHOUT THE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-4454-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JARRELL SWEET,

     Defendant-Appellant.
___________________________

                   Submitted on September 16, 2019 – Decided October 17, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-01-0042.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Robert C. Pierce, Designated Counsel, on the
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      A jury found defendant Jarrell Sweet guilty of second-degree aggravated

assault of his ex-girlfriend, second-degree burglary, N.J.S.A. 2C:18-2(a)(1),

second-degree endangering the welfare of children through abuse, N.J.S.A.

2C:24-4(a)(2), fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3, and

third- and fourth-degree weapons charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.

2C:39-5(d).    He was sentenced to an aggregate fourteen-year prison term,

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

      Defendant, appeals contending:

              POINT I

              [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL
              BECAUSE DETECTIVE BOTELLO TESTIFIED
              THAT A STILL PHOTOGRAPH OF THE ALLEGED
              PERPETRATOR AT THE FERRY STATION WAS
              "ABSOLUTELY IN FACT [DEFENDANT]" WHEN
              THE IDENTITY OF THE PERSON WAS A
              QUESTION FOR THE JURY.     (NOT RAISED
              BELOW).

              POINT II

              THE TRIAL COURT COMMITTED PLAIN ERROR
              BY FAILING TO INSTRUCT THE JURY WITH A
              SPECIFIC     IDENTIFICATION      CHARGE
              CONCERNING       THE      IDENTIFICATION
              TESTIMONY FROM G.J. AND DETECTIVE
              BOTELLO    THAT    CAME    FROM    THEIR
              OBSERVATIONS OF A STILL PHOTOGRAPH
              FROM THE FERRY STATION. (NOT RAISED
              BELOW).

                                                                         A-4454-16T2
                                       2
POINT III

[DEFENDANT] WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL DUE TO COUNSEL'S
FAILURE TO OBJECT TO DETECTIVE BOTELLO'S
LAY OPINION IDENTIFICATION TESTIMONY,
AND HIS FAILURE TO REQUEST A JURY
INSTRUCTION ON IDENTIFICATION. (NOT
RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED BY ADMITTING INTO
EVIDENCE THE SURVEILLANCE VIDEO FROM
. . . 78TH STREET BECAUSE IT WAS NOT
AUTHENTICATED,      WHICH     DEPRIVED
[DEFENDANT] OF A FAIR TRIAL.

POINT V

THE PROSECUTOR COMMITTED MISCONDUCT
DURING SUMMATION BY (1) STATING THAT
THE PERSON IN THE FERRY STATION VIDEO
WAS [DEFENDANT] WHO "STOPPED FOR A
MINUTE TO DRINK WATER" BECAUSE HE WAS
"TIRED AFTER BEATING THE CRAP OUT OF
G.J[,]" (NOT RAISED BELOW)[,] AND (2) THE
PROSECUTOR'S COMMENT THAT YOU HEARD
THE TAXI DRIVER SAY "DUFFEL BAG," WHICH
VIOLATED A PREVIOUS RULING BY THE TRIAL
COURT[,] (PARTIALLY RAISED BELOW)[,]
WHICH DEPRIVED [DEFENDANT] OF A FAIR
TRIAL. (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT COMMITTED PLAIN ERROR
BY NOT STRIKING THE TESTIMONY AND

                                            A-4454-16T2
                    3
               CHARGING THE JURY WITH A CURATIVE
               INSTRUCTION,    SUA    SPONTE,    AFTER
               DETECTIVE DOWD STATED, "WHY DIDN'T
               YOUR CLIENT CONSENT TO A SEARCH OF HIS
               HOUSE TO AVOID THE POLICE HAVING TO GET
               A SEARCH WARRANT IF HE WAS SO WILLING
               TO COOPERATE?" (NOT RAISED BELOW).

               POINT VII

               THE TRIAL COURT COMMITTED PLAIN ERROR
               BY FAILING TO GIVE THE JURY A CURATIVE
               INSTRUCTION, SUA SPONTE, IMMEDIATELY
               AFTER DETECTIVE RECINOS STATED THAT G.J.
               OBTAINED A RESTRAINING ORDER AGAINST
               [DEFENDANT] AND THAT A JUDGE PROVIDED
               THE POLICE WITH PROBABLE CAUSE TO
               GENERATE ARREST WARRANTS. (NOT RAISED
               BELOW).

               POINT VIII

               THE SENTENCE IMPOSED WAS MANIFESTLY
               EXCESSIVE.

       For the reasons that follow, we affirm in part, reverse in part, and remand

for retrial.

                                         I

       Pertinent to the issues before us, the trial revealed the following.




                                                                              A-4454-16T2
                                         4
        Defendant and G.J.'s Relationship

        Defendant and G.J. 1 were co-workers for about six to eight months, who

became friends. On an evening in September 2013, defendant invited G.J. to his

house. She accepted the invitation, which resulted in them having consensual

sex. Thinking she could not become pregnant because of a medical condition,

their sex was unprotected. Nonetheless, when they had sex again weeks later,

defendant used protection. At some point, G.J. realized she was pregnant from

their first liaison, which upset defendant and he wanted her to have an abortion.

G.J. refused.

        After the child was born on May 4, 2014, defendant paid child support.2

Beyond this, defendant minimally engaged in a fatherly role, having sporadic

contact with his son.

        On June 15, 2015, defendant visited G.J. and his son at her North Bergen

apartment where the three had a pleasant evening. Defendant traveled from his

New York residence via ferry, supposedly, the only way he knew how to get to




1
    We use initials to protect the identity of the victim.
2
  Initially, defendant and G.J. reached a private child support agreement but
when he failed to make timely payments, G.J. obtained a court-ordered support
payment.

                                                                         A-4454-16T2
                                           5
New Jersey to visit G.J.'s apartment. Defendant's entry and departure of the

apartment was recorded on the building's surveillance camera system. During

his visit, defendant told G.J. that he did not harbor any negative feelings toward

her for not having an abortion and "was over it." Before defendant left, G.J.

called a taxi service to take him to the Port Imperial Ferry Station (the Ferry

Station) in Weehawken, so he could take the ferry back to New York. Defendant

was never violent or abusive to her, or their son, that evening or any time prior,

according to G.J.

      The Attack

      The evening after defendant's visit, June 16, G.J. was walking up the steps

to her fourth floor apartment with her son and six-year-old niece when she

noticed a black duffel bag and a pair of beige Timberland boots on the second

landing fire escape. Undeterred, G.J. entered her apartment. When G.J.'s sister

arrived to pick up G.J.'s niece, G.J. walked her niece to the second floor and

watched as she continued down the stairs to meet her mother.

      As G.J. was returning to her apartment, she heard her son crying and

rushed up the stairs. Upon entering the apartment, she saw a black male, about

five foot, eight inches tall, dressed in all black, emerge from her bedroom. He

demanded, "where's the money?" then began attacking her by repeatedly


                                                                          A-4454-16T2
                                        6
punching and shocking her with a Taser. G.J. fought back and screamed for help

during the attack, which she recalled lasting approximately five or ten minutes.

      At some point, G.J.'s neighbor, E.A., heard her screams from his

apartment on the same floor. He ran to G.J.'s apartment and attempted to open

the door, but someone inside promptly shut it. E.A. then forced the door open,

stuck his head in, and was immediately punched in the face by the assailant. He

testified the assailant was a dark skinned male, about five foot, ten inches tall,

wearing a hooded sweatshirt, gloves, and dark clothing, with a bandana over his

face. E.A. saw G.J. on the ground screaming, visibly in pain, and "very frantic."

Once the assailant unveiled a Taser and E.A. heard a "crackling" sound, he

retreated to his apartment to call the police.

      After the attack was finished, G.J. made her way to the bedroom to check

on her son. G.J. testified that she could not make out the assailant's features,

but knew it was defendant based on her "intuition" and his "size and stature."

      Police Investigation

      North Bergen Police Officers Santiago Hernandez and Nelson Roman

responded to E.A.'s domestic assault call around 9:30 p.m. After E.A. met them

and explained what he witnessed, they went to G.J.'s apartment where they saw

that she was severely injured. G.J.'s face was completely swollen, her eyes


                                                                          A-4454-16T2
                                         7
partially forced shut, and "blood [was] everywhere." They also observed an

apartment that was in disarray, a Taser on the ground, and an open kitchen

window.

      G.J and E.A. gave similar descriptions of the assailant. G.J was more

definitive, stating that despite the assailant's covered face, she was one hundred

percent sure he was defendant, and showed them a picture of him she had saved

on her cell phone. She repeated her accusations on later dates and, under cross-

examination, stated no relative or friend suggested she should identify the

defendant as her assailant.

      None of the numerous witnesses interviewed were able to identify

defendant as the assailant, each giving varying accounts of his appearance. One

witness stated the assailant wore a cap, light gray button down shirt, gray pants,

and carried a duffel bag. Another witness said he saw a dark-skinned man in a

hood, and a third witness said he was wearing a "light blue surgical mask." A

taxi driver, who also testified at trial, stated the individual, who he drove to the

Ferry Station the night of the incident, was a black male with a "little bag . . .

Like a suitcase."

      Surveillance video from various businesses, a residence near G.J.'s

apartment building, and the Ferry Station, also aided the police in identifying a


                                                                            A-4454-16T2
                                         8
suspect. They depicted an African-American male wearing a long sleeve red t-

shirt, dark shorts, and boots, holding a duffel bag.

      There was no forensic evidence from the crime scene that suggested

defendant committed the assault. None of the various DNA samples taken from

G.J.'s apartment matched defendant. 3       Smudged fingerprints found on the

kitchen windows could not be used to identify anyone. Detectives also traced

defendant's cell phone records, which only revealed two calls made from New

York City: one at 6:33 p.m. and another at 10:33 p.m. There was no indication

from cell phone records that defendant's cell phone was near G.J.'s apartment.

      The Trial

      During his testimony, North Bergen Police Detective Hector Botello

stated that a still photograph of the Ferry Station surveillance footage the night

of the assault, was "a still shot of the suspect." When asked what he learned

from the video footage, the detective replied that "the person there entering was

[defendant]."     Later, when asked on cross-examination how he identified

defendant as the man in the still photograph, he stated, "I know for a fact that's

[defendant] . . . can I explain why I know? . . . You don't want me to ." Defense



3
 When defendant was arrested, he consented to a buccal swap to collect his
DNA.
                                                                          A-4454-16T2
                                        9
counsel suggested the witness tell the prosecutor on re-direct, and neither

objected nor requested that the statement be stricken from the record.

      Several days later, the court sustained defendant's objection to Detective

Robert Maldonado's identification of defendant in a surveillance video from the

Ferry Station on June 15, the day he visited his son. At sidebar, the court

instructed the State that Maldonado needed to use a description of the person

and not identify him as defendant. The court rejected the State's contention that

Maldonado could identify defendant in the video even though there was no

dispute that defendant traveled by ferry to G.J.'s apartment.         Maldonado

subsequently identified the person as the same person matching the description

of the man who was seen earlier in a video leaving G.J.'s apartment building.

      Despite the court's directive, when Maldonado later discussed the June 16

Ferry Station video, he stated, "[t]he image we got . . . from the exit – entrance

to [the Ferry Station] is the defendant sitting here." Defendant objected, which

the court sustained. The court instructed the jury "whether or not the defendant

is seen in the video is for you the jury to determine . . . please disregard the

officer's last response."

      During cross-examination, North Bergen Police Sergeant David Dowd

was questioned regarding defendant's voluntary consent to various searches and


                                                                          A-4454-16T2
                                       10
tests, including a DNA test, and the failure to obtain a search warrant for

defendant's New York City residence. At one point, Sgt. Dowd remarked, "[i]f

your client – why didn't your client consent to [a] search of his house to avoid

[us] having to get a search warrant if he was so willing to cooperate?" The court

stated, "[defense counsel] is not here to answer questions" before cross-

examination continued.

      Later, during direct examination of the taxi driver, the prosecutor asked

whether he remembered if the man who took his cab on the night of the incident

was carrying anything. Through an interpreter, the taxi driver responded, "[h]e

had a little bag with him. . . . Like a briefcase." Immediately following this

statement, the prosecutor stated, "I believe I heard the witness say duffel bag a

couple times. I'm not sure[]"; to which defense counsel objected. Following a

sidebar hearing, the judge gave a curative instruction that is detailed below.

      Lastly, during summation, the prosecutor stated, "you'll have an

opportunity if you want, if you choose, to hear the testimony again of [the taxi

driver]. The State submits to you[,] if you listen to it again, you will hear him

say duffel bag." Defense counsel did not object to this statement. Prior to this

statement, the prosecutor also stated:

            Well, you saw the video from the night of June 16[,]
            2015. You saw that video and you saw [Defendant] in

                                                                          A-4454-16T2
                                         11
               the video walking straight into the terminal. He didn't
               stop to buy a ticket, he walked – actually he did stop.
               He stopped for about a minute to drink water. He must
               have been tired. He must have been tired after beating
               the crap out of [G.J.]

Again, defense counsel did not object.

         Following deliberations, the jury was deadlocked on count three, the

charge of assault against E.A., but returned a verdict of guilty as to all other

counts of the indictment. The court granted the State's motion to dismiss count

three.

         The court later denied defendant's motion for a new trial and sentenced

him. After merger, defendant was sentenced to an aggregate fourteen-year

prison term subject to the NERA; based upon a seven-year NERA term for

second-degree burglary, a ten-year NERA term for second-degree aggravated

assault, a four-year term for third-degree aggravated assault, and an eighteen-

month term for fourth-degree unlawful possession of a weapon, all to be served

concurrent to each other followed by a consecutive four-year term for third-

degree aggravated assault.

                                          II

         With the exception of defendant's contentions in Points III, IV, and VIII,

defendant's remaining merit brief points were not raised before the trial court,


                                                                           A-4454-16T2
                                         12
thus our plain error standard of review applies. R. 2:10-2.         "Any error or

omission shall be disregarded by [this court] unless it is of such a nature as to

have been clearly capable of producing an unjust result . . . ." Ibid. In a jury

trial, the possibility of such an unjust result must be "sufficient to raise a

reasonable doubt as to whether the error led the jury to a result it otherwise might

not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Defendant carries

the burden of showing plain error. State v. Morton, 155 N.J. 383, 421 (1998).

      We conclude plain error applies to defendant's identification arguments in

Point I, Det. Botello's lay opinion testimony identifying defendant in the still

photo outside the Ferry Station, and in Point II, the court's failure to give a

specific identification jury charge, which together warrant a reversal of

defendant's convictions and a new trial. This, in turn, negates any need to

address defendant's contention in Point III that counsel was ineffective due to

his failure to: (1) object to Det. Botello's lay opinion identification testimony;

and (2) request a jury instruction on identification. In addition, because of our

reversal, we need not address the excessive sentence claim made in Point VIII.

      Before discussing our reasons for reversal, we first address defendant's

arguments that we reject: (1) the trial court erred in its admission of a

surveillance video (Point IV); (2) there was plain error regarding prosecutorial


                                                                            A-4454-16T2
                                        13
misconduct (Point V); (3) there was plain error regarding the State's witness's

remark about defendant's failure to consent to a search warrant (Point VI); and

(4) there was plain error regarding the State's witness's remark on the issuance

of a restraining order against defendant (Point VII).

                                       A.

      In Point IV, defendant contends the court committed reversible error

because it permitted the State to introduce video footage from a surveillance

system located at a residence near G.J.'s apartment building that was not

authenticated by the owner and operator of the surveillance system. The video

displayed a black male wearing a light gray shirt and carrying a duffel bag, who

according to the State was G.J.'s assailant. Defendant stresses the video was in

contrast to the surveillance video footage recovered from other nearby

businesses that depicted a black male wearing shorts and a red shirt. A still

picture of the suspect was taken from the video.

      Defendant argues five conditions that apply to audio-recordings, State v.

Driver, 38 N.J. 255, 287 (1962), also apply to video recordings, and were not

satisfied by the State to support admission of the surveillance video footage in

question. These conditions are:

            The speakers should be identified and it should be
            shown that[:] (1) the device was capable of taking the

                                                                        A-4454-16T2
                                      14
             conversation or statement[;] (2) its operator was
             competent[;] (3) the recording is authentic and
             correct[;] (4) no changes, additions or deletions have
             been made[;] and (5) in instances of alleged
             confessions, that the statements were elicited
             voluntarily and without any inducement.

             [Driver, 38 N.J. at 287 (1962).]

Defendant contends these conditions were not fulfilled by the testimony of

North Bergen Police Det. Jason Apello because he failed to testify that before

placing the video onto a flash drive, he personally reviewed the video "in real

time," and that the time and date were accurate.

      It is well-settled that a videotape "qualifies as a writing[ ]" under N.J.R.E.

801(e) and must be "properly authenticated" before being admitted. See State

v. Wilson, 135 N.J. 4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of

authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter is what its

proponent claims." The authentication rule "does not require absolute certainty

or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999).

"The proponent of the evidence is only required to make a prima facie showing

of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made,

the [item] is admissible, and the ultimate question of authenticity of the evidence

is left to the jury." Ibid. (citations omitted).

                                                                            A-4454-16T2
                                         15
      Authentication of a videotape is similar to the authentication of a

photograph.    State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).

"[T]estimony must establish that the videotape is an accurate reproduction of

that which it purports to represent and the reproduction is of the scene at the

time the incident took place."    Ibid. (citing Wilson, 135 N.J. at 15). The

photographer or videographer need not testify "because the ultimate object of an

authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at

14. Thus, "any person with the requisite knowledge of the facts represented in

the photograph or videotape may authenticate it." Ibid.

      After reviewing the record, we conclude the court's decision to admit the

video was not an abuse of discretion. See State v. Brown, 170 N.J. 138, 147

(2001). Det. Apello provided the authenticity of the surveillance video footage

without the necessity of the testimony of the camera system's owner.          He

testified that a week after G.J was attacked, he observed a surveillance camera

on the outside of a home near G.J.'s apartment building. He further explained

that he and other officers watched the video, which covered the date around the

time of G.J.'s attack, and saw a male with a duffel bag walking east. He

determined the video footage's date and time was accurate by checking the

video's time stamp against the time on his watch or cellphone, because


                                                                        A-4454-16T2
                                      16
"occasionally, [the surveillance equipment is] not linked up with the internet so

the times may be off, the dates could be off." He further verified the video

depicted the area near G.J.'s residence. Accordingly, there was no unjust result

by the court's admission into evidence of the video and the still photograph

captured therefrom.

                                       B.

      In Point V, defendant contends the prosecutor committed misconduct in

making two remarks during summation. Before specifying the remarks, we first

mention the principles that govern our review.

      To warrant a new trial for prosecutorial misconduct, the 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." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.

Timmendequas, 161 N.J. 515, 575 (1999)).            While a prosecutor "in its

summation may suggest legitimate inferences to be drawn from the record," a

prosecutor "commits misconduct when [the summation] goes beyond the facts

before the jury." State v. Harris, 156 N.J. 122, 194 (1998). In determining

whether a prosecutor's actions were sufficiently egregious, we consider: (1)

whether defense counsel made a timely and proper objection; (2) whether the


                                                                          A-4454-16T2
                                       17
remarks were promptly withdrawn; and (3) whether the judge struck the remarks

from the record and issued a curative instruction. State v. Frost, 158 N.J. 76, 83

(1999). In our review, "we consider the tenor of the trial and the responsiveness

of counsel and the court to the improprieties when they occurred."

Timmendequas, 161 N.J. at 575. If no objection was made, the prosecutor's

conduct generally will not be deemed prejudicial, as the failure to object

indicates counsel did not consider the conduct improper and deprives the trial

judge of the opportunity to take curative action. State v. Echols, 199 N.J. 344,

360 (2009).

      1. The First Remark

      The prosecutor urged the jury that defendant was the individual in the

Ferry Station surveillance video and "stopped for about a minute to drink water

. . . . he must have been tired after beating the crap out of [G.J.]" Defendant

stresses the sole question for the jury was the identification of the man in the

Ferry Station surveillance video, and any comments made inferring defendant

was the individual – other than those by G.J. – constitute reversible plain error.

Defendant points out that Det. Botello impermissibly identified defendant as the

man in the video, which was repeated by Detective Maldonado, and the court

attempted to remedy the issue with a curative instruction. He argues that despite


                                                                          A-4454-16T2
                                       18
this curative instruction, the prosecutor made an unsupported comment

implicating defendant as the man in the video, and therefore, reversal is

necessary.

      We conclude the prosecutor's comment that it was defendant in the video

does not constitute prosecutorial misconduct. Even though identification was

the sole question for the jury, the prosecutor's argument during summation was

essentially attempting to persuade the jury that defendant was the man in the

video. The comment that it was defendant in the video does not constitute

prosecutorial misconduct because it was supported in the record by G.J.'s

admitted testimony.     As for Det. Botello's identification testimony, it is

discussed below as impermissible lay opinion testimony in Section III. With

respect to the "drinking water/beating G.J." comment, the prosecutor drew an

inference, albeit a stretch, based upon the evidence. And, given the lack of an

objection, no unjust result occurred.

      The record reveals this trial was fought zealously by both parties, and our

courts "have recognized that criminal trials provoke strong feelings and that

'rhetorical excesses . . . invariably attend litigation.'" State v. Smith, 212 N.J.

365, 409 (2012) (quoting State v. Williams, 113 N.J. 393, 456 (1988)). And it

is well-settled that "such excesses . . . do not always justify reversing a jury's


                                                                           A-4454-16T2
                                        19
verdict." Ibid. (citing Frost, 158 N.J. at 88). The prosecutor's remarks did not

compromise the jury's ability as fact-finders. Moreover, the court instructed the

jury that they are the sole judges of the evidence, summations are not evidence,

and we presume the jurors followed the court's instructions.            State v.

Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012).

      2. The Second Remark

      The prosecutor's alleged second inappropriate comment pertained to the

bag carried by the male who was taken by taxi to the Ferry Station the night of

the incident. The taxi driver, through an interpreter, stated the man had a

"briefcase," not a duffel bag. The prosecutor declared, "I believe I heard [the

taxi driver] say duffel bag a couple times, I'm not sure[,]" defense counsel

objected and moved for a mistrial claiming there was a material

misrepresentation of the taxi driver's testimony. The court denied the request,

but agreed with defense counsel to give a curative instruction.

      The jury was told the statement was stricken from the record and

cautioned them:

            Since we are using an interpreter, you are bound by
            what the interpreter says the witness sa[id], [alright]?

                  ....



                                                                         A-4454-16T2
                                      20
            So, let's say somebody in the jury does understand the
            Arabic language and you think the witness said
            something because you understand it . . . you have to
            disregard it because the record and what you can
            consider is only as interpreted by the interpreter.

            Now, we had an added issue here, where . . . the
            [prosecutor] said that [the taxi driver] said duffel bag.
            She is not a witness in this case. You are to completely
            disregard that comment. It is not proper for an attorney
            to tell you what the evidence is. The only thing an
            attorney can do is present the evidence to you by way
            of witnesses.

            So, with respect to this witness, whatever your
            recollection was as to the answers to what he was
            carrying, as stated by the interpreter, is the only thing
            you may consider as evidence in this case.

      During summation, this issue was raised again when the prosecutor

remarked, "[t]he State submits to you if you listen to it again, you will hear him

say duffel bag." There was no objection by defense counsel. Although the

prosecutor essentially suggested to the jury that the interpreter was wrong,

defendant now argues that the State misrepresented the taxi driver's testimony

about the type of bag the man carried.

      In support of reversal, defendant cites State v. Ross, 249 N.J. Super. 246

(App. Div. 1991), where we reversed a defendant's conviction because a

prosecutor argued during summation that a ten-year-old sex abuse victim could

not fabricate the details of her account of the incident, despite the prosecutor

                                                                          A-4454-16T2
                                       21
being aware of the victim's prior history of abuse. 249 N.J. Super. at 250-52.

We held that "[f]or the prosecutor to have made that argument knowing it to be

at least arguably contrary to the facts which defendant was precluded from

adducing was improper, unfair, and, in view of the paramountcy of credibility

issue, irremediably prejudicial." Id. at 250.

      Although the prosecutor's summation remark was improper because it was

a misstatement of the taxi driver's testimony as translated by the interpreter, we

cannot conclude that it was capable of causing an unjust result.           We are

unpersuaded that Ross demands a reversal of defendant's conviction. There was

a basis for the prosecutor's assertion that the suspect was carrying a duffel bag

because of the testimony by other witnesses and the surveillance videos that

depicted what the suspect carried. Moreover, since the court gave a curative

instruction to the jury, and also instructed them that summations are not

evidence and they are the sole finders-of-fact, the comment was not "so

egregious that it deprived the defendant of a fair trial," and thus, reversal is not

warranted. Frost, 158 N.J. at 83; see State v. Ramseur, 106 N.J. 123, 322 (1987).

There is no indication that the jury did not follow the court's instructions. See

Montgomery, 427 N.J. Super. at 410.




                                                                            A-4454-16T2
                                        22
                                      C.

      In Point VI,    defendant argues Sgt. Dowd's comment during cross-

examination, "[w]hy didn't your client consent to a search of his house to avoid

the police having to get a search warrant if he was so willing to cooperate[,]"

deprived him of a fair trial because it shifted the burden of proof onto him. In

particular, he asserts the statement compromised his presumption of innocence,

effectively requiring him to present evidence tending to rebut Sgt. Dowd's

assertions. Had his counsel objected to the statement, the court would have

given a curative instruction to the jury to remedy such an egregious error. We

are unpersuaded.

      The comment by Sgt. Dowd was inappropriate because it suggested that,

had defendant consented to a search of his residence, the police would not have

had to obtain a search warrant. Defendant had no obligation to consent to a

search of his residence. Yet, the comment, which was not objected to, did not

shift the burden to defendant to prove his innocence. The prosecutor did not

make the comment, which would imply the State's trial strategy. The comment

was made by a witness in response to defense counsel's cross-examination that

informed the jury that defendant voluntarily consented to: (1) being interviewed




                                                                        A-4454-16T2
                                      23
by police; (2) providing a DNA and fingerprint sample; (3) turning over his

cellphone; and (4) cooperating with DYFS workers.

      This is not like State v. Jones, 364 N.J. Super. 376 (App. Div. 2003),

which is cited by defendant to support reversal of his conviction. There, we

reversed the defendant's conviction because the prosecutor, in response to the

defendant's argument that a fingerprint analysis was never completed on the

firearm allegedly used to commit the crime, summed-up stating, "[a]nd while

the defense never has a burden of proof, when they put on a case[,] stop and ask

yourself why isn't it they dusted the gun for prints to disprove that his

fingerprints were on there? Maybe the defendant knows something we don't,

that it is his gun." Jones, 364 N.J. Super. at 382. Defendant did not object to

the comments, but we determined they were "so clearly erroneous and so capable

of affecting the jury's deliberations that we are constrained to reverse [the]

defendant's conviction." Ibid.

      We cannot agree with defendant that this fleeting comment made by a

witness during a heated cross-examination was reversible error and created an

unjust result that denied defendant a fair trial.




                                                                        A-4454-16T2
                                        24
                                       D.

      In Point VII, defendant contends plain error occurred when New Bergen

Police Officer Carmen Recinos "testified that, based upon G.J.'s statement, she

obtained a restraining order, coupled with her remark that a judge provided the

police with probable cause to arrest [defendant] . . . ." Defendant further

maintains the court failed to issue a curative instruction considering "the

testimony is much more egregious because Officer Recinos stated that a family

court judge found G.J.'s testimony credible and granted her a restraining order."

Defendant reasons that plain error occurred because with Officer Recinos's

"restraining order and arrest warrant testimony, the jury could infer that

[defendant] committed the offenses and was a present danger to hurt or even kill

G.J. and her young son."

      While on direct examination, Officer Recinos was discussing a statement

he obtained from G.J. during an interview after defendant had given a statement

at the police station, when the following colloquy ensued:

            Q: Based on the statement that you got from [G.J.],
            what did you do?

            A [(Recinos)]: She had requested a restraining order.
            So we called one of our judges on the scene being that
            she couldn't walk that much still. He granted her the
            restraining order.


                                                                         A-4454-16T2
                                      25
            Q: And what did you do after that?

            A [(Recinos)]: After that we headed back to
            headquarters and we advised the [j]udge . . . of her
            statement and what she said, and he provided us with
            probable cause to generate warrants to arrest
            [defendant].


      We find no merit to defendant's contention that Officer Recinos's

testimony had the ability to influence the jury to find defendant guilty of

attacking G.J. and the related offenses because a restraining order and arrest

warrant were issued. Officer Recinos's brief testimony was merely an outline

of the process that led to defendant's arrest. See State v. Marshall, 148 N.J. 89,

240 (1997), (holding there was no authority in support of a rule that "the jury

should be shielded from knowledge that search warrants have been issued in a

criminal matter because the prior judicial determination of probable cause may

influence the jury to assume guilt."). The prosecutor did not harp on this process

in her summation or, for that matter, have any other witness echo this testimony.

No unjust result occurred in defendant's trial due to Officer Recinos's comments.

                                       III.

      Because defendant's respective arguments in Points I and II, concerning

Det. Botello's lay opinion testimony identifying defendant in a still photo, and



                                                                          A-4454-16T2
                                       26
the trial court's failure to give a specific identification jury charge , are

interrelated, we address them together.

                                      A.

      Stressing that Det. Botello never actually met defendant and was only

familiar with him in connection with the investigation and reviewing

surveillance video footage, defendant argues the State improperly bolstered

G.J.'s testimony that defendant was her masked assailant based upon her

"intuition", by introducing the inadmissible lay opinion of Det. Botello that

defendant was the individual in the still photograph from the Ferry Station

surveillance video footage. G.J. testified that the man in the photograph, which

she had never seen before, was defendant.4 Defendant maintains that because

Det. Botello was not sufficiently familiar with him, he impermissibly

encroached on the jury's responsibility of identifying defendant in the

photograph.

      Defendant further argues the court committed reversible error because it

failed to instruct the jury on identification, which was pertinent to the

identifications made by G.J. and Det. Botello, thereby, denying defendant of his


4
  According to G.J.'s grand jury testimony, the photograph was shown to her at
her sister's house four days after the assault, and she identified the man as
defendant. The jury was not made aware of this identification.
                                                                        A-4454-16T2
                                      27
right to a fair trial. He submits the court had the duty "to instruct the jury as to

fundamental principles of law which control the case," and that dut y was not

extinguished by the failure to request a specific identification charge.

      We are guided by the following principles. Lay opinion testimony is

permitted when it is "rationally based on the perception of the witness" and "will

assist in understanding the witness' testimony or in determining a fact in issue."

N.J.R.E. 701. Lay opinion testimony "is not a vehicle for offering the view of

the witness about a series of facts that the jury can evaluate for itself or an

opportunity to express a view on guilt or innocence." State v. McLean, 205 N.J.

438, 462 (2011). "[T]estimony in the form of an opinion, whether offered by a

lay or an expert witness, is only permitted if it will assist the jury in performing

its function." McLean, 205 N.J. at 462. "The [r]ule does not permit a witness

to offer a lay opinion on a matter . . . as to which the jury is as competent as he

to form a conclusion[.]"     Id. at 459 (internal quotation marks and citation

omitted). Furthermore, a police witness is not permitted to offer an opinion

regarding a defendant's guilt. State v. Frisby, 174 N.J. 583, 593-94 (2002)

(disapproving police testimony that opined regarding innocence of one person

and inferentially the guilt of the defendant); State v. Landeros, 20 N.J. 69, 74-




                                                                            A-4454-16T2
                                        28
75 (1955) (holding that a police captain's testimony that defendant was "as guilty

as Mrs. Murphy's pet pig" caused "enormous" prejudice warranting reversal).

      These principles apply to opinions regarding an offender's identity. "In

an identification case, it is for the jury to decide whether an eyewitness credibly

identified the defendant." State v. Lazo, 209 N.J. 9, 24 (2012).

      In Lazo, the issue was whether it was proper for a detective with no

personal knowledge of the crime to testify at trial that he included the

defendant's photo in a photo array because the defendant's photo resembled the

composite sketch of the assailant. Id. at 12. The issue in Lazo had been fully

raised and argued at trial and, thus, was not raised as plain error as it is here.

Our Supreme Court noted that "[t]he victim's identification was the only

evidence linking defendant to the crime.        No physical evidence or other

corroboration of the identification was presented." Id. at 15. The jury in Lazo

convicted the defendant of second-degree robbery and second-degree conspiracy

to commit robbery. Id. at 16.

      The Court held that the detective's testimony violated N.J.R.E. 701

because his opinion was not based on personal knowledge, and the testimony

only served to bolster the victim's identification, which was the sole basis of the

defendant's conviction. Id. at 24. The detective did not witness the crime, did


                                                                           A-4454-16T2
                                       29
not know the defendant, and relied solely on the victim's description. Ibid. "Nor

was there a change in appearance that the officer could help clarify for the jurors;

they could have compared the photo and the sketch on their own. Finally, the

sole eyewitness told the jury what he observed firsthand." Ibid.

      The Court reversed, holding that a police officer may not "improperly

bolster or vouch for an eyewitness' credibility and thus invade the jury's

province." Ibid. Because the identification was the only evidence against the

defendant, the Court could not "conclude that the error was harmless." Id. at 27.

      The Lazo Court reviewed federal authority on whether a lay police witness

may opine that a defendant is depicted in a crime scene photograph. The Court

noted that one federal court held lay opinion "permissible where the witness has

had sufficient contact with the defendant to achieve a level of familiarity that

renders the lay opinion helpful." Id. at 22 (internal quotation marks and citation

omitted). Whether the opinion is helpful in turn depends on the witness's

knowledge of the defendant's appearance at the time of the crime, the defendant's

dress, and "whether the defendant disguised his appearance during th e offense

or altered her looks before trial, and whether the witness knew the defendant

over time and in a variety of circumstances." Ibid. (internal quotation marks

and citation omitted). "[C]ourts recognize that when there is no change in


                                                                            A-4454-16T2
                                        30
defendant's     appearance,   juries   can   decide   for   themselves—without

identification testimony from law enforcement—whether the person in a

photograph is the defendant sitting before them." Id. at 23.

      The Court cited a decision finding it error to admit an officer's opinio n

that a defendant was depicted in a bank surveillance photo where the officer's

opinion "was based entirely on his review of photographs . . . and witnesses'

descriptions . . . ."   Ibid. (internal quotation marks and citation omitted).

Another factor in determining whether to permit a lay opinion on identification

is "whether there are additional witnesses available to identify the defendant at

trial." Ibid.

      The Court cited favorably to the Law Division's 1981 decision in Carbone.

In Carbone, the defendant was charged with five armed bank robberies, and the

State secured statements from individuals who knew the defendant and who

identified him from photographs taken by the banks' surveillance cameras. 180

N.J. Super. at 96-97. Citing cases from other jurisdictions, the Law Division,

considered a number of factors in reaching its determination that the proposed

identifications were admissible, including: (1) the fact that the defendant's

appearance had changed since the time of the offense charged; (2) the lack of

eyewitnesses to the offenses charged; (3) the extent of the potential witnesses'


                                                                         A-4454-16T2
                                       31
familiarity with the defendant, particularly at the time of the offenses charged;

and (4) the basis of the witnesses' knowledge of the defendant. Id. at 97-100.

      Although New Jersey law is sparse on the subject of the admissibility of

lay opinion testimony identifying a defendant from surveillance video or

surveillance photographs, there is abundant case law from other jurisdictions on

the subject. Those cases generally hold that such testimony may be admissible

after considering a variety of factors, including a number of the factors set forth

under New Jersey case law in Lazo and Carbone.5


5
  See, e.g., United States v. White, 639 F.3d 331, 335-36 (7th Cir. 2011); United
States v. Contreras, 536 F.3d 1167, 1170-73 (10th Cir. 2008); United States v.
Beck, 418 F.3d 1008, 1013-15 (9th Cir. 2005); Nooner v. State, 907 S.W.2d 677,
684-86 (Ark. 1995); People v. Leon, 352 P.3d 289, 312-13 (Cal. 2015);
Robinson v. People, 927 P.2d 381, 382-85 (Colo. 1996) (en banc); Young v.
United States, 111 A.3d 13, 15-16 (D.C. 2015); Glenn v. State, 806 S.E.2d 564,
568-69 (Ga. 2017); State v. Barnes, 212 P.3d 1017, 1020-26 (Idaho Ct. App.
2009); People v. Thompson, 49 N.E.3d 393, 402-09 (Ill. 2016); Gibson v. State,
709 N.E.2d 11, 15-16 (Ind. Ct. App. 1999); Morgan v. Commonwealth, 421
S.W.3d 388, 391-92 (Ky. 2014); State v. Berniard, 163 So.3d 71, 89-91 (La. Ct.
App. 2015); State v. Robinson, 118 A.3d 242, 247-52 (Me. 2015); Moreland v.
State, 53 A.3d 449, 453-56 (Md. Ct. Spec. App. 2012); Commonwealth v.
Vacher, 14 N.E.3d 264, 278-79 (Mass. 2014); Lenoir v. State, 222 So.3d 273,
276-78 (Miss. 2017) (en banc); State v. Gardner, 955 S.W.2d 819, 823-25 (Mo.
Ct. App. 1997); Rossana v. State, 934 P.2d 1045, 1048-49 (Nev. 1997); State v.
Sweat, 404 P.3d 20, 22, 24-27 (N.M. Ct. App. 2017); People v. Sanchez, 941
N.Y.S.2d 599, 606 (App. Div. 2012), aff'd, 991 N.E.2d 698 (N.Y. 2013); State
v. Patterson, 791 S.E.2d 517, 520-23 (N.C. Ct. App. 2016), review denied, 794
S.E.2d 328 (N.C. 2016); State v. Fripp, 721 S.E.2d 465, 467-69 (S.C. Ct. App.
2012); Woods v. State, 13 S.W.3d 100, 101-05 (Tex. Crim. App. 2000); State v.


                                                                           A-4454-16T2
                                       32
A few courts from other states have concluded that lay opinion testimony is

more likely to be admissible when the surveillance video is of passable quality,

but is grainy or shows only a partial view of the person of interest. See, e.g.,

Nooner, 907 S.W.2d at 685; Glenn, 806 S.E.2d at 569; Barnes, 212 P.3d at 1025;

Thompson, 49 N.E.3d at 404. In such cases, the lay witnesses' opinions become

more valuable to the jury, based upon their superior knowledge of the

defendant's appearance, particularly around the time of the crime.

                                         B.

      Defendant also argues as plain error that reversal should be granted

because the trial court failed to give any instruction on identification.           In

particular, he cites Model Jury Charge (Criminal), "Identification: In-Court and

Out-of-Court Identifications" (Revised June 5, 2006), or Model Jury Charge

(Criminal), "Identification: No In-Court and Out-of-Court Identifications Out-

of-Court Identification Only" (Approved October 26, 2015).

      It is undisputed that "[a]ppropriate and proper charges to a jury are

essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court

must guarantee that jurors receive accurate instructions on the law as it pertains



George, 206 P.3d 697, 700-02 (Wash. Ct. App. 2009), review denied, 217 P.3d
783 (Wash. 2009). But see State v. Finan, 881 A.2d 187, 191-94 (Conn. 2005);
Ibar v. State, 938 So.2d 451, 462 (Fla. 2006).
                                                                             A-4454-16T2
                                        33
to the facts and issues of each case. State v. Smith, 210 N.J. Super. 43, 54 (App.

Div. 1986).    A trial court is vested with discretion in delivering the jury

instructions that are most applicable to the criminal matter before it." State v.

Funderburg, 225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84

(1960)). "An erroneous jury charge when the subject matter is fundamental and

essential or is substantially material is almost always considered prejudicial."

State v. Maloney, 216 N.J. 91, 104-05 (2013) (internal quotation marks and

citation omitted).   We apply a presumption that improper instructions are

reversible error in criminal cases. Id. at 105. However, that presumption is

overcome if the error is "'harmless beyond a reasonable doubt.'" Ibid. (quoting

State v. Collier, 90 N.J. 117, 123 (1982)).

      "Plain error in the context of a jury charge . . . [must be] sufficiently

grievous . . . to convince the court that of itself the error possessed a clear

capacity to bring about an unjust result." State v. Hyman, 451 N.J. Super. 429,

455 (App. Div. 2017) (alterations in original) (quoting State v. Torres, 183 N.J.

554, 564 (2005)). "Under the plain error standard, [the] 'defendant has the

burden of proving that the error was clear and obvious and that it affected his

[or her] substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001)

(quoting State v. Morton, 155 N.J. 383, 421 (1998)). The plain error analysis of


                                                                          A-4454-16T2
                                       34
an erroneous jury charge mandates that the reviewing court examine the charge

as a whole to determine its overall effect. State v. McKinney, 223 N.J. 475, 494

(2015).

      There is presently no New Jersey model jury charge on evaluating lay

witness opinion testimony in this particular context. The model charges on

identification evidence specifically address only identifications made by

eyewitnesses to the crime; they do not address identifications made based upon

surveillance video of a crime. Model Jury Charge (Criminal), "Identification:

In-Court Identification Only" (rev. July 19, 2012, eff. Sept. 4, 2012); Model Jury

Charge (Criminal), "Identification: Out-of-Court Identification Only" (rev. July

19, 2012, eff. Sept. 4, 2012); Model Jury Charge (Criminal), "Identification: In-

Court and Out-of-Court Identifications" (rev. July 19 2012, eff. Sept. 4, 2012).

There is, however, a federal jury charge on lay witness opinion. See Modern

Federal Jury Instructions – Criminal, 2.10, "Opinion Evidence (Lay Witnesses)

(F.R.E. 701)" (2018). 6



6
  Witnesses are not generally permitted to state their personal opinions abou t
important questions in a trial. However, a witness may be allowed to testify to
his or her opinion if it is rationally based on the witness's perception and is
helpful to a clear understanding of the witness's testimony or to the
determination of a fact in issue.


                                                                          A-4454-16T2
                                       35
                                        C.

      Applying these principles leads us to conclude that the combination of

Det. Botello's testimony identifying defendant as the man in the still photograph

at the Ferry Station on the night of the assault, and the absence of any

identification jury instructions, were clearly capable of creating an unjust result

requiring a new trial.

      In this case, defendant's guilt turned on identification. There was no

physical evidence linking defendant to G.J.'s attack, such as DNA or

fingerprints. Defendant's cell phone records did not indicate he was near the

vicinity of G.J.'s apartment the night of the attack. Although witnesses gave

physical descriptions of the assailant, only G.J testified that defendant was her

assailant. Despite the fact that his face was covered, it was her "intuition," based

upon knowing him from their work and personal relationship, which led her to

conclude he was her attacker.




       In this case, I am permitting (name) to offer (his)(her) opinion based on
(his)(her) perceptions. The opinion of this witness should receive whatever
weight you think appropriate, given all the other evidence in the case and the
other factors I will discuss in my final instructions for weighing and considering
whether to believe the testimony of witnesses.

  Modern Federal Jury Instructions-Criminal 2.10 (2019)


                                                                            A-4454-16T2
                                        36
      There are no facts in the record to indicate that Det. Botello had any

familiarity with defendant prior to or during his investigation into G.J. 's attack

enabling him to identify defendant from a still photograph of the video. 7 The

detective neither witnessed the crime nor knew defendant prior to the incident;

apparently relying solely on the descriptions provided by G.J. and other

witnesses regarding defendant's clothing and physical build. He seemingly had

no more insight into the suspect's identity then members of the jury.

      Our concern regarding Det. Botello's testimony is highlighted by the fact

that when Det. Maldonado subsequently identified defendant in the same Ferry

Station video, the court struck it from the record based on defendant's timely

objection. The court's instruction that it is the jury's role to decide whether the

defendant is in the video (as well the still photograph taken therefrom) equally

applies to Det. Botello's testimony. Clearly, the court was troubled about the

impact of this lay opinion testimony.

      Consequently, it appears that Det. Botello's identification testimony

served only to bolster G.J.'s testimony and was, therefore, inadmissible. This,

however, is not the end of our analysis of his testimony's impact.


7
   Since neither provided a dvd of the surveillance video nor a copy – not a
photocopy – of the still photograph, we have no way of evaluating defendant's
claim that it was a grainy and unclear image of the suspect.
                                                                           A-4454-16T2
                                        37
      The inadmissibility of Det. Botello's testimony is compounded by the jury

not receiving any instructions on how it should evaluate identification

testimony. Despite our state's absence of any model jury charge on evaluating

lay witness opinion testimony, it is incumbent upon the trial court to fashion

charges that address the law and facts of a particular case. The court should

have developed charges by examining our model jury charges, and possibly

considered adapting related jury charges from other jurisdictions that were in

place at time of trial. In doing so, the jury would have been given guidance on

how to evaluate Det. Botello's identification testimony of defendant in the still

photograph.

      Considering both the allowance of Det. Botello's identification testimony

and the lack of jury instructions on how to assess his testimony, we do not find

these errors harmless. Identification of G.J's assailant was the only trial issue

and given the limited evidence against defendant, the combination of these two

errors were capable of producing an unjust result. Accordingly, we reverse his

convictions and remand for retrial.

      Affirmed in part, reversed in part and remanded for retrial.




                                                                         A-4454-16T2
                                      38
