                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4061-12T1

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                         December 29, 2014
v.                                       APPELLATE DIVISION

MAYTEE CORDERO, a/k/a MAYTTEE
CORDERO, a/k/a TETI CORDERO,

     Defendant-Appellant.
___________________________________

         Submitted October 7, 2014 – Decided December 29, 2014

         Before Judges Messano, Ostrer and Hayden.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 11-12-1792.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Frank M. Gennaro, Designated
         Counsel, on the brief).

         Andrew    C.    Carey,  Middlesex   County
         Prosecutor, attorney for respondent (Jason
         Boudwin, Assistant Prosecutor, of counsel
         and on the brief).

         The opinion of the court was delivered by

OSTRER, J.A.D.

     Defendant Maytee Cordero appeals from her conviction, after

a jury trial, of third-degree shoplifting, N.J.S.A. 2C:20-11(b).

The shoplifting incident involved the taking of over $1700 of
merchandise from the Apple Store at Menlo Park Mall on July 26,

2011.    Her co-defendant, Chris Perez, removed various items from

the accessory wall and placed them into two large Abercrombie &

Fitch (A&F) clothing bags that defendant was holding.               Defendant

and Perez then left the store without paying for the products.1

       The appeal requires us to address when it is appropriate

for a trial court to rule on the admissibility of other-crimes-

or-wrongs evidence under N.J.R.E. 404(b), when offered to rebut

a defendant's proffered mistake, or lack of intent.                 The State

sought an in limine ruling permitting it to introduce evidence

of a previous alleged shoplifting incident at a Target store

that involved defendant, Perez and a third person.               The evidence

was a video of that incident, as well as a recorded statement

defendant gave shortly thereafter.             The State proposed to use

the evidence to rebut a proffered defense, set forth in a letter

from defense counsel, that Cordero did not intend to shoplift

from    the   Apple   Store,   and   her   removal   of   the   items   without

paying was a mistake, as she was unaware Perez placed items in

the bags.2




1
  Perez pleaded guilty several months before defendant's trial,
and was sentenced to a three-year prison term.
2
  The record before us does not include the video, defendant's
statement, or defense counsel's letter.



                                       2                                A-4061-12T1
    Judge Joseph Paone declined to hold a formal hearing under

N.J.R.E.   104,   or    issue    a   definitive      ruling    in     advance   of

defendant's testimony.       However, to assist defendant in deciding

whether to testify, the judge offered his tentative view that

the 404(b) evidence was likely admissible.                  He did so before

opening statements.       After the State rested and the judge viewed

the video, he reiterated his tentative view.

    On     appeal,     defendant     argues   that    the     court    erred    in

refusing to issue a definitive ruling.                She asserts that the

tentative ruling was erroneous and infringed upon her right to

testify.    She also asserts the prosecutor committed misconduct

in his summation.

    We conclude that a trial court, in its discretion, may

await the close of a defendant's case before determining the

admissibility     of    404(b)     evidence   that    the     State    seeks    to

introduce to rebut the defendant's claim of lack of intent or

mistake.    We also discern no error in the court's decision to

offer a tentative view of the issue.           Finally, defendant's claim

of prosecutorial misconduct lacks sufficient merit to warrant

extended discussion.      We therefore affirm.




                                       3                                 A-4061-12T1
                                           I.

                                           A.

       The State presented its case through the testimony of two

of the Apple Store's loss prevention officers — Steve G. Yhap

and Felix Melendez.          The jury also heard briefly from the Edison

Township police patrolman who arrested defendant and Perez.

       Yhap   and     Melendez      were    in    plain     clothes       while     they

monitored customers in the store.                 Yhap testified he saw Perez

enter the store, look around while talking on his cell phone,

then exit.      Shortly thereafter, Perez entered again, accompanied

by defendant.         She was carrying two large A&F shopping bags.

They both walked to one side of the store, where he selected a

laptop case.     He then walked to the other side of the store, and

she followed.         Yhap stated, "He would select items, and, then,

he would conceal [them] behind the laptop case.                            She would,

like,   raise    up    her   bag,    and    he    would    put    [them]    into     the

defendant's bag."

       The two then exited the store without paying for the items.

Yhap    testified      he    confronted         them,     and    placed     Perez     in

handcuffs.      Meanwhile, defendant placed both bags on the floor

and began to walk or jog away, when Melendez stopped her.                           Yhap

and Melendez escorted the two to an office in the rear of the

store, where they photographed the items in the bag.




                                           4                                  A-4061-12T1
    Melendez       generally    confirmed    Yhap's    version   of    events.

Melendez did not specifically state that defendant raised the

bags while Perez placed the items inside.             However, he confirmed

that she carried both bags into and out of the store.                 Melendez

testified   that    when   he   and   Yhap   identified   themselves,     "she

slowly dropped the bags . . . [a]nd, then, she slowly tried to,

like, make off — like — almost like a slow-motion running."                 She

was apprehended.

    The loss prevention officers also testified that defendant

and Perez made self-incriminating statements.              Melendez stated

that defendant asked "if there's any way Chris Perez can just

take all the charges, and to just let her go."3              She explained

that she was "concerned over opening up her own . . . used car

sales lot" and feared "she wouldn't get the license if she got

charged. . . ."

    Yhap testified that Perez told him "that he was responsible

for it, because she's trying to open up a car dealership and he

doesn't want her to take the rap for it."                  Defense counsel

confronted Yhap with his report of the incident, which did not


3
  Defense counsel initially objected to the introduction of
defendant's statement, asserting that it was not provided in
discovery. However, in a N.J.R.E. 104 hearing conducted in the
midst   of  Melendez's   testimony,  it  was   established  that
defendant's statement was recorded in Melendez's report that the
State provided in discovery.



                                       5                              A-4061-12T1
include   that   statement.    Instead,      it   stated,   "'During    the

interview Christopher Perez admitted to stealing the items for

his boss.     And since he overheard management calling the local

PD he said he wasn't going to give us any information unless we

let them walk."    None of the alleged statements by defendant and

Perez were recorded, nor did the two sign written statements.

Also, Yhap explained that because of his inexperience — he had

worked at Apple for only a few months — he did not preserve

video surveillance of the incident before it was over-written.

                                  B.

      As noted above, defense counsel advised the State before

trial that defendant intended to assert a defense of mistake or

lack of intent.     Defense counsel's pre-trial letter apparently

notified the State that Perez intended to testify that he stole

the   items   without   defendant's      knowledge.     Defense   counsel

represented that Perez would testify that he ran into defendant

in the store; she asked that he take her phone number; so, he

handed the bags to her while he did so.           In response to defense

counsel's letter, the State filed a motion seeking permission

under N.J.R.E. 404(b) to introduce evidence of the prior alleged

shoplifting incident involving Perez and defendant.

      However,    following   jury       selection,    defense    counsel

announced that she did not intend to call Perez as a witness,




                                     6                            A-4061-12T1
although      he     was       present    in     the      courthouse         and    available.

Nonetheless, the State sought a ruling on the admissibility of

the    404(b)      evidence,        because          defense        counsel       stated    that

defendant might testify.

       Judge Paone ruled that the evidence could not be introduced

during the State's case in chief.                         As for whether it could be

offered in rebuttal, he stated, "I can't decide whether 404(b)

evidence is admissible until the State['s] case is done; [and]

your   case     is    done."        The       judge       stated     that    he     would   give

defendant "an indication as to . . . whether I believe the

evidence      would       be    admissible       .    .    .   if    the     testimony      were

consistent with the facts as represented . . . ."                                  He would do

so,    to   "inform        [her]     . . .       decision          whether     to    testify."

However, the judge emphasized that he would not make a 404(b)

decision      "prematurely."             He    inquired        whether       that    was    "all

right" with defense counsel, who responded, "Okay."

       After the State rested, counsel revisited the 404(b) issue.

Defense     counsel        proffered      that       defendant       would     testify       that

Perez tried to get defendant's phone number — slightly different

from the previous proffer that defendant asked Perez to take her

phone number — and when Perez took out his phone, he handed one

of    the   bags     to    defendant.           They       walked     out     of    the     store

together.      According to the proffer, defendant would testify she




                                                7                                      A-4061-12T1
was   unaware    the    bag    contained       unpurchased       items.         Counsel

conceded this version was at odds with the two loss prevention

officers' observation that she held both bags.

      The judge reiterated he could not make a final decision on

the     admissibility    of        the   404(b)     evidence     until     he     heard

defendant's     testimony.               However,      based    on   the        State's

representation of what the video of the prior incident would

show, the judge stated his tentative view that the evidence

would    be   admissible.          Defense     counsel    inquired       whether    the

court's view would remain the same if defendant simply gave a

general denial on the stand.                The judge stated he was unsure.

Defendant was given until the following day to determine whether

she intended to testify.

      The next morning, the court decided to view the video of

the previous incident in open court.4                   The court's decision to

view the recording also enabled defendant to view it for the

first time.      The video apparently consisted of various clips

from the store cameras, some showing the same actions but from

different     angles.         As    described     on    the    record,    the    video

apparently depicted defendant, Perez, and the third person — who

4
  Once the court considered the video, it should have been marked
for identification. See Manata v. Pereira, 436 N.J. Super. 330,
336 n.2 (App. Div. 2014).      Furthermore, the record does not
reflect that the court reviewed or considered defendant's post-
arrest statement following the Target incident.



                                           8                                 A-4061-12T1
was described as a Target employee — standing in front of a

locked case of video games and gaming consoles.                               Perez opened

the case with a key and placed various items in the shopping

cart.     At one point, defendant herself placed a laptop case in

the cart.       There was no obvious attempt to conceal the placement

of the items in the cart.                 Defendant later wheeled the cart

around    the    cashiers'    section         of    the       store,    toward      the     exit

doors.    She was stopped by loss prevention officers.

     Defense      counsel     asserted         at       one    point    that       the     video

depicted defendant handing currency to Perez, which supported

defendant's       claim    that    she    believed            that     the   third       person

involved    had    arranged       for   defendant         to    purchase       the      various

items at a discount.          She allegedly believed that the items in

the cart had been paid for.                   At one point, while Judge Paone

viewed the video, defendant interjected that she intended to pay

for the items.5

     Judge      Paone     reviewed      the       four    prongs       of    the    test      for

determining       the     admissibility            of    other       crimes        or    wrongs

evidence, as set forth in State v. Cofield, 127 N.J. 328, 338

(1992):


5
    Defendant   was    charged   with   third-degree   shoplifting
(concealment),    pursuant    to   N.J.S.A.   2C:20-11(b)(2),   in
connection with the Target incident. She pleaded not guilty and
was admitted to the pretrial intervention program.



                                              9                                         A-4061-12T1
           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.

           [Id. (internal quotation marks and citation
           omitted).]

    Before   viewing     the    video,     Judge     Paone    stated,   "without

having the benefit of her testimony . . . all I can do is

indicate to you that there . . . would be a likelihood that

. . . this evidence would be admissible."               He stated that prong

one was likely met because the evidence would refute defendant's

proffered defense that she removed the items from the Apple

Store by mistake.

    Prong    two   was   met    because     the    prior     incident   occurred

within   several    months     of   the    charged    crimes,    and    involved

defendant's removal of items from a store without paying, in

concert with Perez.          He was unpersuaded by defense counsel's

argument   that    the   two   incidents      were    dissimilar.        Counsel

alleged that in the first incident, there was no apparent effort

to conceal the placement of the items in the cart, while in the




                                      10                                A-4061-12T1
second, there was an apparent effort to conceal the items placed

in the A&F bag.

      As for prong three, once he viewed the video, Judge Paone

stated that there appeared to be clear and convincing evidence

that defendant participated in a prior shoplifting.          However, he

left open the door for defendant to provide "an explanation for

that conduct" depicted on the video.

      Judge Paone did not expressly address prong four, balancing

the   prejudice   against   the   404(b)   evidence's   probative    value.

However, he implicitly found it was satisfied by indicating,

tentatively, that the evidence would be admissible.            The court

was unpersuaded by defense counsel's argument that there was

less prejudicial evidence — consisting of Yhap's and Melendez's

testimony — to rebut defendant's proffered defense.

      Defendant declined to testify.         The jury deliberated for

about half an hour before returning its verdict.               Defendant

maintained her innocence at sentencing.           The court imposed a

three-year term of probation, subject to conditions regarding

employment and community service.

      Defendant raises two issues on appeal:

           1.   THE TRIAL COURT'S INDICATION THAT THE
           DETAILS OF A PREVIOUS CHARGE OF SHOPLIFTING
           WOULD BE ADMISSIBLE IN REBUTTAL IF DEFENDANT
           TESTIFIED        VIOLATED        DEFENDANT'S
           CONSTITUTIONAL RIGHT TO TESTIFY ON HER OWN
           BEHALF.



                                    11                              A-4061-12T1
            2. THE PROSECUTOR'S IMPROPER COMMENT DURING
            HIS   SUMMATION CONSTITUTED   PROSECUTORIAL
            MISCONDUCT WHICH DENIED DEFENDANT A FAIR
            TRIAL.

                                          II.

                                          A.

       Defendant    complains      that    the   court    declined    to     issue    a

definitive decision on the admissibility of the 404(b) evidence,

despite the State's motion, and defendant's interest in a firm

decision.        Defendant    argues      that   the    court   was   mistaken       in

deciding to await defendant's testimony, given the defendant's

proffer.         Furthermore,      defendant      argues    that      the    court's

tentative opinion was, in effect, a ruling on the issue, which

misapplied the Cofield factors and deprived defendant of her

right to testify.

       We are unpersuaded.         We review a trial court's application

of    N.J.R.E.    404(b)     for   an   abuse    of    discretion.          State    v.

Marrero, 148 N.J. 469, 483-84 (1997).                 The State proposed to use

the   other-crimes-or-wrongs        evidence      to    prove   intent,      and    the

absence of mistake.           See N.J.R.E. 404(b) (stating that other-

crimes-or-wrongs evidence "may be admitted . . . as proof of . .

. intent . . . or absence of mistake or accident when such

matters are relevant to a material issue in dispute.").                              We

discern no error in Judge Paone's determination that a ruling on




                                          12                                 A-4061-12T1
the    admissibility          of     the      404(b)       evidence       should        await

defendant's testimony.

       Our courts generally disfavor in limine rulings on evidence

questions.         "[A] trial judge generally should not rule on the

admissibility of particular evidence until a party offers it at

trial."      State     v.    Cary,       49   N.J.    343,      352   (1967).      "[M]ost

evidence problems are best and most expeditiously settled in the

atmosphere and context of the trial."                        State v. Hawthorne, 49

N.J. 130, 143 (1967).               Pre-trial evidentiary rulings are often

made "in the abstract and not in the context of facts adduced at

trial";     consequently,         "[r]equests        for   such       rulings   should     be

granted     only    sparingly."           Bellardini       v.    Krikorian,       222    N.J.

Super. 457, 464 (App. Div. 1988).                    "Where . . . the decision on

the in limine motion itself requires an analysis of evidence yet

to    be   presented    or       credibility       determinations,         such    motions

should     ordinarily       be     denied     until    a   sufficient       predicate is

established."         Berrie v. Berrie, 252 N.J. Super. 635, 641-42

(App. Div. 1991).

       Moreover,      "[i]n        the    event      the     trial      court   addresses

[evidentiary] issues in a pre-trial proceeding, the trial court

must be sensitive to the need to revisit its pre-trial rulings

in light of the developing record at trial."                            State v. Jones,

308 N.J. Super. 15, 46 (App. Div. 1998).                        "The record developed




                                              13                                   A-4061-12T1
at   trial    may   differ     from   the    record    developed    below       on    the

parties' motions, perhaps substantially."                    State v. Crumb, 277

N.J. Super. 311, 321 (App. Div. 1994).

      On     the    other    hand,    we     recognize      that,   as    a    general

principle, a trial court retains the discretion, in appropriate

cases, to rule on the admissibility of evidence pre-trial.                           See

Hawthorne, supra, 49 N.J. at 142 ("This is not to say that under

no circumstances can pretrial motions to exclude evidence be

made, or that in some situations evidence problems cannot be

settled at the pretrial conference.                Obviously there is an area

in   which    the    judge's    discretion       may   operate.").            See    also

Berrie, supra, 252 N.J. Super. at 641 ("In limine motions have

their place where issues can be eliminated as a matter of law

prior to trial.").

      In particular, our criminal practice rules expressly direct

courts to conduct pretrial hearings "to resolve issues relating

to   the     admissibility      of    statements       by    defendant,       pretrial

identifications of defendant, sound recordings, and motions to

suppress."         R. 3:9-1(d).       "[U]nless otherwise ordered by the

court"     such      hearings     are      "held   prior       to   the       pretrial

conference."        Ibid.    "Upon a showing of good cause, hearings as

to admissibility of other evidence may also be held pretrial."

Ibid.      In particular, a hearing under State v. Sands, 76 N.J.




                                            14                                 A-4061-12T1
127 (1978), to determine the admissibility of prior convictions,

may be held pre-trial.        State v. Whitehead, 104 N.J. 353, 358

(1986) ("In practice, the trial court makes its determination at

a hearing held before trial or, if at trial, out of the presence

of the jury.").

    Our      Court    has    cautioned    that   other-crimes-or-wrongs

evidence should not be admitted unless it "is material to a fact

genuinely    in    issue."   State   v.   Stevens,   115   N.J.   289,   302

(1989).     The fact that intent is an element of the offense does

not invariably justify admission of 404(b) evidence to prove

intent.

            That evidence of prior crimes may have some
            bearing on motive, intent, plan, absence of
            mistake, knowledge or identity . . . does
            not automatically warrant its admission. If
            the defense in the instant case had been
            alibi or a general denial, these prior
            convictions    might  properly   have   been
            excluded even though they were relevant to
            intent.    While intent would still be a
            necessary element of the prosecutor's case,
            the question of motive or intent would not
            have been raised by the evidence and thus
            the probative value of the prior offenses
            would   likely    be  outweighed  by   their
            prejudicial effect.

            [State v. Atkins, 78 N.J. 454, 462 (1979)
            (citations omitted).]

    We      have     previously   held    that   other-crimes-or-wrongs

evidence should be allowed "only to meet an issue relating to an

element of the offense which is projected by defendant either



                                     15                            A-4061-12T1
before       or    during    trial      or     is    necessarily         raised    by     the

evidence."          State v. Peltack, 172 N.J. Super. 287, 293 (App.

Div.), certif. denied, 84 N.J. 474 (1980).                          On the other hand,

the    Court       has   rejected    the      suggestion      that       other-crimes-or-

wrongs evidence is inadmissible "to prove a material element of

a     crime       not    specifically        contested       by    the    defendant       nor

otherwise established by the evidence."                            Stevens, supra, 115

N.J.    at    307.        Such   evidence      may    be     necessary      to    prove    an

essential element of the offense.                    Ibid.        However, we have held

that an assertion in an opening statement does not suffice to

"open    the       door"    to   404(b)        rebuttal       evidence.           State    v.

Anastasia, 356 N.J. Super. 534, 543 (App. Div. 2003) ("Opening

statements are not evidential and should not be responded to by

'rebuttal' evidence.").

       We are persuaded that a trial court may, in its discretion,

await the conclusion of the defendant's case before deciding the

admissibility of 404(b) evidence to prove intent, or lack of

mistake.6         That view is supported by persuasive authority.                         See,




6
  "When the cases refer to admission of other-crime evidence to
show the intent of the defendant, it is often just as accurate
to describe the evidence as negating the defenses of mistake and
accident."   Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 11 on N.J.R.E. 404(b) (2014). See also State
v. Sexton, 160 N.J. 93, 98-107 (1999) (discussing N.J.S.A. 2C:2-
4(a) and mistake of fact as a defense).        Nonetheless, the
                                                     (continued)


                                              16                                   A-4061-12T1
e.g., United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.

1980) ("[I]f the evidence is offered to prove the defendant's

knowledge or intent, the offer of similar acts evidence should

await the conclusion of the defendant's case and should be aimed

at    a     specifically    identified       issue.");7    United    States    v.

Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) (same); Moor v.

State, 709 P.2d 498, 506 (Alas. 1985) ("[W]here the prosecution

wishes to use the evidence to rebut an anticipated defense, the

trial court should seriously consider delaying the offer until

the       prosecution's    rebuttal    in     order   to    ensure    that    the

anticipated defense will in fact be raised.").

      Awaiting the rebuttal case enables the court to confirm

that the defense will actually be offered, and to assess the

contours      of   the   defense.     That    information    will    inform   the

court's decision regarding the relevance of the 404(b) evidence,


(continued)
State's proof of absence of mistake may be more likely to come
into play only after a defendant has raised the defense.
7
  The Second Circuit has recognized an exception to this rule
"where there was no doubt that the issue of intent would be
disputed in the case."    United States v. Colon, 880 F.2d 650,
660 (2d Cir. 1989) (citing United States v. Caputo, 808 F.2d
963, 986 (2d Cir. 1987); United States v. Reed, 639 F.2d 896,
906-07 (2d Cir. 1981)).        In Colon, where there existed
uncertainty after opening statements regarding the defense that
defendant would ultimately adopt, the court held, "[T]he proper
course was to await [the defendant's] decision before permitting
the similar acts evidence to enter the case by means of an
opening statement or a witness' testimony." 880 F.2d at 661.



                                       17                               A-4061-12T1
and whether its probative value is outweighed by its prejudicial

effect.       See Figueroa, supra, 618 F.2d at 939 (stating that

awaiting      until     defense     rests    "enables      the    trial    judge     to

determine whether the issue sought to be proved by the evidence

is really in dispute and, if so, to assess the probative worth

of the evidence on this issue against its prejudicial effect");

United States v. Adderly, 529 F.2d 1178, 1182 (5th Cir. 1976)

("It is only after the defense is presented that the trial judge

can    know    if   intent     or    knowledge      or   any     exception    to    the

exclusion rule is truly a disputed issue in the trial.").

       Applying the foregoing principles, we discern no abuse of

discretion in Judge Paone's decision to postpone a ruling on the

admissibility of evidence of the prior alleged shoplifting until

defendant      testified.           The   precise    contours      of     defendant's

proposed      testimony    were      unclear.       More   importantly,       it    was

virtually impossible to predict what defendant might say once

subjected to cross-examination.              Even a general denial on direct

examination would have allowed cross-examination on the basis

for the denial.         Conceivably, admissions by defendant on cross-

examination could constitute less prejudicial evidence of her

lack   of     mistake     or   intent     than   the     video    of    the   alleged

shoplifting at Target.              See State v. P.S., 202 N.J. 232, 256

(2010) ("[I]n assessing the fourth prong [of the Cofield test],




                                            18                                A-4061-12T1
courts    should   consider    whether     the    matter     can    be    proved

adequately by other evidence."); Stevens, supra, 115 N.J. at 303

(same).

    We also conclude that the trial judge did not abuse his

discretion    in   deciding   to   offer    his   tentative       view   on    the

admissibility of the evidence of the prior incident, based on

the limited information available.           When the judge proposed to

do so before opening statements, defense counsel did not object.

Defendant has provided no authority — and we are aware of none —

that precludes a trial judge from reasonably indicating his or

her preliminary views on a factual or legal issue, pending the

submission    of   proofs,    legal    authority,    or    argument.          Such

expressions    assist   counsel       in   tailoring      their    proofs      and

presentations.     However, ultimately, it is the court's decision

— not its tentative expressions — that provides a basis for

appeal.    "[A]ppeals are taken from orders and judgments and not

from opinions, oral decisions, informal written decisions, or

reasons given for the ultimate conclusion."                 Do-Wop Corp. v.

City of Rahway, 168 N.J. 191, 199 (2001).

    A defendant's right to testify in his or her own defense is

an essential element of due process.             State v. Savage, 120 N.J.

594, 626 (1990).     However, the decision whether to testify is a

"strategic or tactical decision to be made by a defendant with




                                      19                                 A-4061-12T1
the advi[c]e of . . . counsel."                   State v. Bogus, 223 N.J. Super.

409,    423    (App.       Div.),    certif.      denied,    111   N.J.      567   (1988).

Defendant must bear the consequences of her decision in this

case.       The judge did not infringe her rights by sharing his

tentative views on the 404(b) issue, while declining to rule

until the defense rested.

       We     also    reject        defendant's     argument       that   the      judge's

tentative opinion was, in actuality, a ruling on the merits.

The judge was scrupulous in stating that he was withholding a

final decision until defendant testified.                       Consistent with the

foregoing, we also decline to address defendant's arguments that

the court erred in its expressed view that the evidence of the

prior    incident          was   likely    admissible.         The    court        did   not

definitively rule on its admissibility.

       In any event, defendant has failed to provide us with an

adequate record to review a decision on the merits.                          We have not

been provided with the 404(b) evidence that the State sought to

introduce      —     the    video     of   the    prior     alleged   shoplifting         at

Target.       Consequently, we are unable to review a finding that

the     evidence       was       clear     and      convincing        that      defendant

participated in a prior shoplifting.                      Nor can we fully assess

the potential prejudice from the introduction of such evidence.

See R. 2:6-1(a) (stating that the appendix "shall contain . . .




                                             20                                    A-4061-12T1
such other parts of the record . . . as are essential to the

proper consideration of the issues"); see also Cmty Hosp. v.

Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor

are we obliged to attempt review of an issue when the relevant

portions of the record are not included.")

                                  B.

      We   briefly   address   defendant's   argument     that     she     is

entitled to a new trial because the prosecutor discussed the

significance of the crime of shoplifting in his summation.               The

prosecutor stated:

            Now, the reason we're here . . . is the
            shoplifting.     I   know  some  of   you  —
            shoplifting — and I wish I'd gotten put on a
            jury for bank robbery or something maybe a
            little more dramatic.     But, the truth is
            shoplifting is a plague in our society, as
            well. And . . . there are products that are
            taken and they aren't paid for.    And, now,
            those companies are losing money and who is
            paying for that loss? It's passed on, then,
            in increased prices to the consumers.     So
            there's . . . a reason that that's a crime.
            There's a reason that we're here.    And the
            reason that we're prosecuting.

Defense counsel did not object.

      "Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to

the scope of the evidence presented."        State v. Frost, 158 N.J.

76,   82   (1999).   Prosecutorial     misconduct   is   grounds     for    a

reversal where the "misconduct was so egregious that it deprived



                                  21                               A-4061-12T1
the defendant of a fair trial."                     Id. at 83.            "[A]n appellate

court must consider (1) whether defense counsel made timely and

proper     objections        to    the    improper        remarks;      (2)    whether       the

remarks    were      withdrawn          promptly;    and       (3)    whether     the       court

ordered the remarks stricken from the record and ordered the

jury to disregard them."                 Ibid.     When reviewing the comments in

a   closing      statement,        "the    test     is    whether       the    incident        is

'clearly capable of producing an unjust result.'"                                  State v.

DiPaglia, 64 N.J. 288, 296 (1974) (quoting R. 2:10-2).

      If no objection is made to the remarks, they will generally

not   be   deemed      prejudicial.              Frost,    supra,       158    N.J.     at    82.

Failure     to      object    indicates          that     defense       counsel       did     not

consider them improper at the time they were made, and failure

to object also deprives the court of the "opportunity to take

curative action."        Id. at 84.

      "Within reasonable limitations, the prosecutor should be

permitted      to    observe      the     serious       social       consequences       of    the

crime charged."          State v. Perry, 65 N.J. 45, 48 (1974).                                In

Perry, a police officer was on trial for attempted extortion.

Id.      The   victim    of       the    extortion       was    a    convicted    narcotics

dealer.     Id.      In his summation, the prosecutor raised the issue

of police corruption and the manner in which a certain class of

people was disadvantaged by police corruption.                                Id. at 46-47.




                                             22                                       A-4061-12T1
The Court held that the trial court did not err in allowing the

prosecutor     to   comment   on   the    social   consequences   of    police

corruption, particularly since defense counsel did not object,

and   "the     comments   comprised      an   insignificant   portion       of   a

summation . . . ."        Id. at 54.

      Applying these principles, we discern no misconduct, let

alone misconduct so egregious that it deprived defendant of a

fair trial.      To counter the possibility that some jurors might

feel that a shoplifting case was not serious enough to warrant

their   time    and    effort,   the   prosecutor    briefly,   and    without

emotion, discussed the societal impact of the crime.                   Defense

counsel did not object to the comments.             They were a minor part

of    the    State's    closing.         Particularly   in    light    of    the

substantial evidence of guilt, the comments were not capable of

producing an unjust result.

      Affirmed.




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