                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2922-14T1

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             December 29, 2016

v.                                           APPELLATE DIVISION

LEE E. MOORER,

     Defendant-Appellant.

___________________________________

         Submitted October 17, 2016 – Decided December 29, 2016

         Before Judges Fisher, Ostrer, and Leone.

         On appeal from Superior Court of New Jersey,
         Law Division, Salem County, Indictment No.
         13-09-0514.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Stephen P. Hunter, Assistant
         Deputy Public Defender, of counsel and on
         the brief).

         John T. Lenahan, Salem County Prosecutor,
         attorney for respondent (Lisa M. Rastelli,
         Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.

     Defendant   appeals    his   December   17,   2014    judgment   of

conviction for third-degree possession of a controlled dangerous

substance (CDS) under N.J.S.A. 2C:35-10(a)(1).            He argues the
trial court should have instructed the jury on what he claims is

a lesser-included offense: failure to deliver a CDS to a law

enforcement officer, N.J.S.A. 2C:35-10(c).                         We affirm.     We hold

that "failure to make lawful disposition" under N.J.S.A. 2C:35-

10(c) is not a lesser-included offense of possession of a CDS

under    N.J.S.A.     2C:35-10(a).              We       also   hold    that    under    New

Jersey's evidence rule permitting substantive use of consistent

statements to rebut "recent fabrication," N.J.R.E. 803(a)(2),

fabrication     is   "recent"    if    it       post-dates         a    prior   consistent

statement.

       The testimony at trial included the following facts.                              On

May 31, 2013, Detective Nicholas Bowen received an anonymous tip

stating   two   females      would    leave          a    house    on   Broad   Street   in

Salem.    He was told they would "retrieve money from the . . .

ATM machine at the Deepwater Credit Union . . . and walk back to

purchase crack cocaine from [a] black male."                             After receiving

this information, Bowen started surveillance to corroborate the

tip.

       Detective     Bowen   observed       two          females    walk   to   Deepwater

Credit Union, appear to withdraw money from the ATM, and walk

toward the house on Broad Street.                        When Bowen called to one of

the women to stop, they began running toward the house.                              Bowen

chased after them, joined by Patrolman James Endres.                             When the




                                            2                                     A-2922-14T1
women approached the door to the Broad Street house, one of them

yelled something to the effect of, "It's the cops.                         Toss your

shit."    Bowen and Endres followed them into the house, where the

officers found defendant, another male, and a female seated on a

couch in the living room.

      Bowen observed the other male throw a cigarette pack into

the dining room.           Bowen and Endres retrieved the cigarette pack

and discovered a crack pipe inside.                They placed the other male

under arrest.

      The officers' attention was then drawn to defendant, who

"became fidgety and kept looking around."                  Both Detective Bowen

and      Patrolman         Endres      testified      they        saw      defendant

surreptitiously take off his hat and throw it behind the couch.

The   officers       saw    what    appeared    to   be    a     crack    rock   near

defendant's     feet.        Defendant    was   placed     under    arrest.        The

officers then checked near the hat and found two additional

pieces of crack cocaine.

      A jury convicted defendant of third-degree possession of

cocaine in violation of N.J.S.A. 2C:35-10(a)(1).                         On December

12,   2014,    the    trial    court   sentenced     him    to    three    years   of

probation.

      Defendant appeals, raising two points:

              POINT I - THE FAILURE TO CHARGE A LESSER-
              INCLUDED OFFENSE REQUESTED BY THE DEFENSE



                                          3                                 A-2922-14T1
            THAT WAS RATIONALLY BASED IN THE RECORD
            DENIED DEFENDANT A FAIR TRIAL.    U.S. Const.
            Amend. XIV; N.J. Const. Art. I, ¶ 1.

            POINT II - THE IMPROPER ADMISSION OF PRIOR
            CONSISTENT STATEMENTS OVER DEFENSE OBJECTION
            TO BOLSTER THE STATE'S PRIMARY WITNESS
            DENIED DEFENDANT A FAIR TRIAL.    U.S. Const.
            Amend. XIV; N.J. Const. Art. I, ¶ 1.

                                                 II.

    Defendant argues the trial court erred when it denied his

request    to   instruct        the   jury        that          failure     to    make         a    lawful

disposition      of    a   CDS,       N.J.S.A.             2C:35-10(c),           was      a       lesser-

included offense of possession of a CDS, N.J.S.A. 2C:35-10(a).

The court stated it did not believe failure to make a lawful

disposition was a lesser-included offense but it would "look at

that charge tonight and see if it fits."                                    Although defendant

again   raised    the      issue      on    the           second      day   of    trial,           further

discussion      was     postponed,           no           decision      was       made,            and    no

instruction was given on the offense of failure to make a lawful

disposition.          Nonetheless, no error occurred because we hold

N.J.S.A.     2C:35-10(c)         is        not        a     lesser-included             offense            of

N.J.S.A. 2C:35-10(a).

    N.J.S.A.      2C:35-10(a)          provides:                "It    is   unlawful           for       any

person,    knowingly       or     purposely,               to    obtain,         or   to       possess,

actually or constructively, a controlled dangerous substance or




                                                  4                                                A-2922-14T1
controlled    substance     analog."1         Defendant    contends    he     was

entitled to an instruction on N.J.S.A. 2C:35-10(c) as a lesser-

included offense.      N.J.S.A. 2C:35-10(c) provides:

            Any   person   who   knowingly   obtains or
            possesses a controlled dangerous substance
            or controlled substance analog in violation
            of subsection a. of this section and who
            fails to voluntarily deliver the substance
            to the nearest law enforcement officer is
            guilty of a disorderly persons offense.
            Nothing   in   this   subsection   shall be
            construed to preclude a prosecution or
            conviction for any other offense defined in
            this title or any other statute.

"On its face, the statute applies only to those who obtain or

possess controlled dangerous substances in violation of N.J.S.A.

2C:35-10a."    State v. Patton, 133 N.J. 389, 398 (1993).

     To determine if failure to make a lawful disposition is a

lesser-included    offense    of   possession     of   a   CDS,   we   look   to

N.J.S.A.    2C:1-8(d),    which    "governs    lesser-included     offenses."

State v. Maloney, 216 N.J. 91, 106 (2013).                 N.J.S.A. 2C:1-8(d)

provides:

            A defendant may be convicted of an offense
            included in an offense charged whether or
            not the included offense is an indictable
            offense. An offense is so included when:

                 (1)     It is established by proof of
                         the same or less than all the
                         facts required to establish the

1
  The violation is a third-degree crime if the CDS is "classified
in Schedule I, II, III or IV." N.J.S.A. 2C:35-10(a)(1).



                                      5                                A-2922-14T1
                    commission        of     the     offense
                    charged; or

              (2)   It consists of an attempt or
                    conspiracy to commit the offense
                    charged or to commit an offense
                    otherwise included therein; or

              (3)   It differs from the offense
                    charged only in the respect that
                    a less serious injury or risk of
                    injury   to    the    same   person,
                    property or public interest or a
                    lesser    kind     of    culpability
                    suffices    to      establish    its
                    commission.

    In addition, N.J.S.A. 2C:1-8(e) provides: "The court shall

not charge the jury with respect to an included offense unless

there is a rational basis for a verdict convicting the defendant

of the included offense."

         [N.J.S.A. 2C:1-8(e)] has been characterized
         and construed as requiring not only a
         rational basis in the evidence for a jury to
         convict  the   defendant  of   the  included
         offense but requiring also a rational basis
         in the evidence for a jury to acquit the
         defendant of the charged offense before the
         court may instruct the jury on an uncharged
         offense.

         [State v.    Brent,    137        N.J.    107,   113-14
         (1994).]

Thus, a party seeking a lesser-included offense charge must show

"(1) that the requested charge satisf[ies] the definition of an

included offense set forth in N.J.S.A. 2C:1-8d, and (2) that

there [is] a rational basis in the evidence to support a charge




                                  6                                A-2922-14T1
on that included offense."                 Maloney, supra, 216 N.J. at 107

(quoting State v. Thomas, 187 N.J. 119, 131 (2006)).

     N.J.S.A. 2C:35-10(c) is not a lesser-included offense of

N.J.S.A. 2C:35-10(a) under any of the subsections of N.J.S.A.

2C:1-8(d).        Subsection (d)(1) does not apply because N.J.S.A.

2C:35-10(c) requires both that the defendant knowingly possessed

a   CDS    in    violation     of     N.J.S.A.      2C:35-10(a)    and     that     the

defendant failed to deliver that substance to a law enforcement

officer.        Thus, N.J.S.A. 2C:35-10(c) requires a second element

not required by N.J.S.A. 2C:35-10(a).                 Subsection (d)(2) is not

applicable       because      N.J.S.A.          2C:35-10(c)     involves     neither

conspiracy       nor    attempt.         Subsection    (d)(3)     does    not     apply

because N.J.S.A. 2C:35-10(c) requires a violation of N.J.S.A.

2C:35-10(a) and thus cannot be said to be satisfied by a lesser

injury, risk, or culpability.

     Indeed,      the    legislative       history    of   N.J.S.A.      2C:35-10(c)

shows     it    was     enacted     to    give     prosecutors     "a     method     of

facilitating       'speedy    trials'      by     downgrading     cases    involving

possession       of    CDS"   under      N.J.S.A.     2C:35-10(a).         State     v.

Gredder, 319 N.J. Super. 420, 425 (App. Div. 1999).                       In Patton,

our Supreme Court reviewed N.J.S.A. 2C:35-10(c)'s legislative

history.        After the 1987 enactment of the Comprehensive Drug

Reform Act of 1986, there was "a dramatic increase in the number




                                            7                               A-2922-14T1
of drug arrests" which "exacerbated the pressure on the criminal

courts."        Patton, supra, 133 N.J. at 393–94.                 "[T]he Supreme

Court Task Force on Speedy Trial acknowledged that the caseload

of the criminal-justice system could be reduced significantly by

prosecutors      exercising      their     discretion     to   refer     matters    to

municipal court for prosecution as disorderly-persons offenses."

Id. at 394.

    The Task Force recommended the Legislature enact a statute

"creating appropriate disorderly persons offenses for possession

of small quantities of certain drugs . . . to permit the use of

prosecutorial discretion in the charging and screening process."

Ibid. (quoting N.J. Supreme Court 1986 Judicial Conference on

Speedy    Trial,    Report      of   the   Committee     on    Delay     Points    and

Problems   Affecting      Speedy      Trial      53   (1986)).      In    1988,    the

Legislature      "implement[ed]       th[at]     recommendation"       by   amending

N.J.S.A. 2C:35-10 to add subsection (c) for "use[] only as a

mechanism to downgrade simple possession, an indictable offense,

to a disorderly-persons offense."               Id. at 394, 401.

    We faced a similar situation in State v. N.A., 355 N.J.

Super.    143    (App.   Div.    2002),        certif.   denied,    175     N.J.   434

(2003).    There, we held N.J.S.A. 9:6-3 was not a lesser-included

offense of N.J.S.A. 2C:24-4(a).                 Id. at 154.        The Legislature

enacted N.J.S.A. 2C:24-4(a) to make it a second-degree offense




                                           8                                 A-2922-14T1
for a person having care of a child to "make [the] child an

abused     or    neglected         child   as     defined      in"     N.J.S.A.      9:6-3.

N.J.S.A. 2C:24-4(a).               N.J.S.A. 9:6-3 already made it a fourth-

degree crime for such a person to abuse or neglect a child.                              In

enacting N.J.S.A. 2C:24-4(a), the Legislature's "'intent [wa]s

to incorporate the crime now defined in [N.J.S.A.] 9:6-3 without

substantial change except for the penalty provisions.'"                              N.A.,

supra, 355 N.J. Super. at 153 (citation omitted).                           We found "a

legislative       intent      that    both      statutes      are    to   be    preserved

perhaps to provide prosecutors the option of charging a lesser

offense under appropriate circumstances."                     Ibid.

      "Under these unique circumstances," we concluded in N.A.

that N.J.S.A. 9:6-3 "should not have been charged as a lesser

included        offense"      of     N.J.S.A.        2C:24-4(a).          Id.   at    154.

"Submission of both offenses would involve the jury in the act

of imposition of sentence."                Ibid.          We stressed that generally

"a jury's consideration of the evidence is confined to what, if

any, offenses have been committed by the defendant rather than

the   penalty         which   may    or    must      be    imposed."      Ibid.        "The

rationale       for    this   limitation        is    that   sentencing     information

fails to help the jury in deciding the issue of guilt, distracts

the jury by confusing the issues to be decided, and invites a

compromise verdict."           Ibid.       "Submission of both offenses would




                                             9                                    A-2922-14T1
transform the traditional function of the jury, a consequence

which should not occur lightly.          Rather, we elect to defer to

the discretion reposed in the prosecutor regarding the nature

and extent of the charges to be presented to the Grand Jury."

Ibid.

    In N.A., we followed the lead of State v. D.V., 348 N.J.

Super. 107 (App. Div. 2002), aff'd o.b., 176 N.J. 338 (2003),

which ruled that a "prosecutor may select between a crime of the

second degree under [N.J.S.A. 2C:24-4(a)] and a fourth degree

offense under [N.J.S.A. 9:6-3]" and that "[t]he selection of the

charge rests in the sound discretion of the prosecutor."           Id. at

115-16 (citation omitted).         This in turn reflected the "well

'settled rule' that when 'an act violates more than one criminal

statute, the Government may prosecute under either so long as it

does not discriminate against any class of defendants.'"             State

v. Kittrell, 145 N.J. 112, 129 (1996) (quoting United States v.

Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 2204, 60 L.

Ed. 2d 755, 764-65 (1979)); see D.V., supra, 348 N.J. Super. at

114-15.

    In enacting N.J.S.A. 2C:35-10(c), the Legislature similarly

intended "'to incorporate the crime now defined in [N.J.S.A.

2C:35-10(a)] without substantial change except for the penalty

provisions'"   in   order   "to   provide   prosecutors   the   option   of




                                    10                            A-2922-14T1
charging a lesser offense under appropriate circumstances."                   See

N.A., supra, 355 N.J. Super. at 153 (citation omitted).                       For

similar reasons, N.J.S.A. 2C:35-10(c) should not be charged as a

lesser-included offense because "[s]ubmission of both offenses

would involve the jury in the act of imposition of sentence."

See id. at 154.

       In   addition,    "'to    justify     a     lesser    included   offense

instruction, a rational basis must exist in the evidence for a

jury to acquit the defendant of the greater offense as well as

to convict the defendant of the lesser, unindicted offense.'"

State v. Funderburg, 225 N.J. 66, 81 (2016) (citation omitted);

see,   e.g.,   State    v.   Cagno,   211   N.J.    488,    522   (2012),   cert.

denied, __ U.S. __, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).

There could never be a rational basis for a jury to convict a

defendant of violating N.J.S.A. 2C:35-10(c) while acquitting him

of violating N.J.S.A. 2C:35-10(a), as a defendant must be "in

violation    of   subsection    a."   to    violate    N.J.S.A.    2C:35-10(c).

Absent such a "rational basis," it is inappropriate to instruct

on N.J.S.A. 2C:35-10(c) as a lesser-included offense of N.J.S.A.

2C:35-10(a).

       For the same reasons, the trial court was not required to

instruct the jury on N.J.S.A. 2C:35-10(c) as a related offense.

See Thomas, supra, 187 N.J. at 132-34.                "[R]elated offenses are




                                       11                               A-2922-14T1
those that 'share a common factual ground, but not a commonality

in    statutory    elements,    with        the    crimes    charged         in    the

indictment.'"      Maloney, supra, 216 N.J. at 107 (quoting Thomas,

supra, 187 N.J. at 132).         "A court may instruct on a related

offense when 'the defendant requests or consents to the related

offense charge, and there is a rational basis in the evidence to

sustain the related offense.'"               Id. at 108 (quoting Thomas,

supra, 187 N.J. at 133).       Here, there was no rational basis for

the   jury   to   convict   defendant       of    failure   to   make    a    lawful

disposition but acquit him of possession of a CDS.                      Cf. id. at

111-14 (Albin, J., dissenting) (asserting the trial court should

have instructed on a related offense so the jury could have

convicted on that charge and acquitted on the greater charge).

Absent such a rational basis, giving an instruction on a related

offense is improper because

             a trial court cannot charge a jury on any
             offense   requested  by the    defendant   or
             suggested by the evidence.    A trial court
             should not "scour the statutes to determine
             if there are some uncharged offenses of
             which the defendant may be guilty.        The
             prosecutor    has   the  primary     charging
             responsibility[.]"

             [Thomas, supra, 187 N.J. at 133                (quoting
             Brent, supra, 137 N.J. at 118).]




                                       12                                    A-2922-14T1
                                          III.

      Defendant        next    challenges        the   admission    of     Detective

Bowen's prior consistent testimony concerning whether defendant

took off his hat and threw it behind the couch.                    "'Considerable

latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if

it constitutes an abuse of discretion.'"                      State v. Kuropchak,

221   N.J.   368,      385    (2015)   (citation       omitted).     "Under       that

standard,    an    appellate        court    should    not    substitute    its   own

judgment for that of the trial court, unless 'the trial court's

ruling   "was     so   wide    of   the     mark   that   a   manifest   denial    of

justice resulted."'"            Id. at 385-86 (citations omitted).                  We

must hew to that standard of review.

      Detective Bowen wrote a report the night of the May 31,

2013 arrest.      Patrolman Endres did not complete his report until

June 7, 2013.       Although Endres's report mentioned that defendant

took off his hat and threw it behind the couch, Bowen's report

did not.

      In her opening statement, defense counsel told the jury:

             One officer is going to testify consistent
             with the report that he authored. A report
             that claims that Mr. Moorer took off his
             hat, threw it behind the couch.
                  That officer is going to testify that
             Mr. Moorer made certain comments about why
             he tossed the hat behind the couch.




                                            13                              A-2922-14T1
                  That officer is going to testify that
             he went behind the couch and found a small
             quantity of crack cocaine next to the hat
             that Mr. Moorer had been wearing. . . .
                  The other officer, hopefully, will
             testify consistent with his observations, as
             they were recorded in his report.    I'm not
             going to blow the trumpet right now.
             Instead, I'm going to ask you to pay close
             attention.

       On   direct,   Detective       Bowen     testified       that   he   observed

defendant on the couch "mov[ing] his hat off" and that it "went

directly behind him."         Bowen testified defendant looked "like he

was trying to . . . avoid detection."                He also testified that he

forgot to mention defendant's discarding the hat in his report,

probably because of the lateness of the hour when he prepared

the report.

       Defense counsel cross-examined Bowen repeatedly about the

hat.    She asked: if he was trained to record his observations in

his report; if it contained everything he perceived;                           if his

report contained all the important details; and if the detail

about the hat was important.               She marked Bowen's report as an

exhibit, had Bowen read it, and asked if it mentioned defendant

taking off his hat.          She questioned Bowen's claim that he forgot

to mention the hat due to the late hour when the report was

prepared.      She    also    asked   if    Bowen     had   reviewed    his    report

"before     testifying   here    today,"        if   he   had   reviewed    "anybody




                                           14                                 A-2922-14T1
else's report," and if he saw "Patrolman Endres's report after

he wrote it," which Bowen said he might have seen.

       On redirect, the prosecutor asked Bowen if he testified on

a prior occasion.          When defense counsel objected, the prosecutor

argued    that   defense      counsel     had   attacked     Bowen's   credibility

using a prior inconsistent statement and that Bowen "can be

rehabilitated with a prior consistent statement" under N.J.R.E.

803.      The trial    court overruled the objection, finding that

defense    counsel     made       "a   suggestion"    that    the    hat    was   only

recently mentioned by Bowen, and thus that N.J.R.E. 803(a)(2)

allowed the use of Bowen's prior consistent testimony to rebut

an implication of recent fabrication.                 Accordingly, Bowen read

from a prior transcript where he had testified: "I noticed that

Mr. Moorer made a quick movement with his hand and . . . took

[his hat] off and put it behind the couch."2

       In her closing argument, defense counsel made explicit what

was implicit in her opening and cross-examination.                         She argued

Detective Bowen and Patrolman Endres were lying about defendant

taking    off    a   hat    and    throwing     it   behind    the   couch.        She

emphasized Bowen's training and experience in writing reports,


2
  The parties both represent to us that Bowen read from his grand
jury testimony. At trial, however, the prosecutor stated it was
"not a Grand Jury Transcript," it was "a transcript from a prior
proceeding."



                                          15                                 A-2922-14T1
the importance of accurate reports, and the failure of Bowen's

report "to mention anything about Mr. Moorer wearing a hat or

removing it" as Bowen testified at trial.     She argued "there's

no way that . . . Detective Bowen[] would omit those details

because he was tired or [because of the] lateness of the hour.

That's just an excuse."   She argued that it was "curious" that

Bowen's report differed from Endres's report and that "the State

tried to have Bowen diffuse that bomb on direct examination."

    The trial court properly admitted Bowen's prior testimony

under N.J.R.E. 803(a)(2), which provides:

         A statement previously made by a person who
         is a witness at a trial or hearing [is not
         excluded by the hearsay rule], provided it
         would have been admissible if made by the
         declarant while testifying and the statement
         . . . is consistent with the witness'
         testimony and is offered to rebut an express
         or implied charge against the witness of
         recent fabrication or improper influence or
         motive.

    "A 'charge' of recent fabrication can be effected through

implication by the cross-examiner[.]"       State v. Johnson, 235

N.J. Super. 547, 555 (App. Div.) (quoting State v. King, 115

N.J. Super. 140, 146 (App. Div.), certif. denied, 59 N.J. 268

(1971)), certif. denied, 118 N.J. 214 (1989).     Further, such a

charge can be implied in the opening statement and confirmed by

the closing argument.




                               16                         A-2922-14T1
    Here,      implicitly       in     her        opening    statement      and    cross-

examination,     and    explicitly      in        her   closing     argument,     defense

counsel suggested to the jury that Detective Bowen fabricated

his testimony that defendant discarded the hat, contrary to his

report   which    did    not    mention       defendant       discarding        the    hat.

Moreover,     defendant         repeatedly          implied        Detective      Bowen's

fabrication was recent.           Defense counsel's opening comment that

Detective   Bowen      "hopefully,      will        testify       consistent    with    his

observations, as they were recorded in his report," suggested

that if he did not, he would be fabricating a new story on the

witness stand.         Defense counsel's cross-examination – asking if

Bowen    reviewed      his   report      "before         testifying      here     today,"

reviewed    "anybody     else's      report,"        and    saw    "Patrolman     Endres'

report   after   he     wrote    it"    –     implied       that    Bowen   might      have

reviewed Endres's report in preparation for testifying at trial,

giving rise to a motive to fabricate to mirror Endres's version

of the facts.          Defense counsel's closing argument that "the

State tried to have Bowen diffuse [the difference between his

report and Endres's report] on direct examination" implied that

the State had instructed Bowen to give testimony similar to

Endres's report.

    Therefore, it was not an abuse of discretion for the trial

court to find an "implied charge against the witness of recent




                                             17                                   A-2922-14T1
fabrication."          N.J.R.E.             803(a)(2).          We    defer       to        the    trial

court's first-hand observations.

              [I]t is the impression the cross-examiner
              makes upon the jury in the heat of the trial
              rather than what an appellate court would
              discern from a coldly analytical study of
              the testimony which must control review of
              the   somewhat  discretionary   exercise  of
              judgment made by the trial judge in the
              matter.

              [Johnson, supra, 235 N.J. Super. at 555-56
              (quoting King, supra, 115 N.J. Super. at
              146-47).]

      Nonetheless, defendant argues defense counsel never claimed

Bowen's       testimony      was        a    recent          fabrication         or     "a       'recent

contrivance.'"         State v. Gomez, 246 N.J. Super. 209, 223 (App.

Div. 1991) (quoting State v. Sullivan, 24 N.J. 18, 39, cert.

denied, 355 U.S. 840, 78 S. Ct. 52, 2 L. Ed. 2d 51 (1957)).

Defendant       argues      defense           counsel          instead       merely          employed

impeachment using a prior inconsistent statement.                                     "An attack on

a party's credibility through prior inconsistent statements does

not     necessarily        give    plaintiff             the    right       to        use    a    prior

consistent       statement         to       buttress          the    party's          credibility."

Palmisano v. Pear, 306 N.J. Super. 395, 403 (App. Div. 1997).

      Here,       however,          defense              counsel's          opening,              cross-

examination,         and    closing          all        implied      that    Detective             Bowen

accurately recorded the events when he wrote his report on the

night    of    the    arrest      and        that       he   recently       fabricated            a   new



                                                   18                                         A-2922-14T1
version    of     events      when    testifying,         or   in    preparation      for

testifying, at trial.              See Johnson, supra, 235 N.J. Super. at

555 (admitting a witness's prior statement after the "defense

counsel highlighted several inconsistencies in details between

the prior statement and [the witness's] trial testimony, thus

creating    the    inference         that   [he]    had    not      been   truthful    at

trial").

    Such fabrication during trial or in preparation for trial

is certainly "recent" in common parlance.                      See King, supra, 115

N.J. Super. at 146 (admitting a witness's statement to police

and grand jury testimony where the defense counsel alluded to

the witness's threat a week before trial that she would lie at

the trial).

    Moreover, Bowen's prior consistent testimony occurred in a

proceeding       prior   to    trial,       and    apparently        prior   to     trial

preparation.        Where     the     prior      consistent      statement    was    made

before     the    motive      to     fabricate     arose,      the    fabrication      is

"recent" enough under N.J.R.E. 803(a)(2).                        "The scope of the

exception encompasses prior consistent statements made by the

witness before the alleged 'improper influence or motive' to

demonstrate that the witness did not change his or her story."




                                            19                                 A-2922-14T1
Neno v. Clinton, 167 N.J. 573, 580 (2001).3             "[T]hough the common

phrase is 'recent' fabrication or contrivance, the term 'recent'

is misleading.     It is not required to be near in point of time

to the trial, but only that the alleged contrivance be closer to

the trial in point of time than the consistent statement."                       2

McCormick   on   Evidence   §   47,   at   316   n.36   (Broun   ed.,    2013);

accord Mason v. United States, 53 A.3d 1084, 1090 n.4 (D.C.

2012).   Thus, "the word 'recent' means that the prior consistent

statement which may be admitted is one made before the alleged

motive to fabricate arose."           Powers v. Cheeley, 771 P.2d 622,

625 (Or. 1989); see People v. Singer, 89 N.E.2d 710, 711 (N.Y.

1949) ("'[R]ecent' as so used, has a relative, not an absolute

meaning"); accord Jones v. State, 889 S.W.2d 706, 716 (Ark.

1994).   Thus, we hold fabrication is "recent" if it post-dates a

prior consistent statement.

     In that situation, the prior consistent statement has clear

probative value:

            Impeachment by charging that the testimony
            is a recent fabrication or results from an
            improper influence or motive is, as a
            general   matter,  capable  of  direct  and
            forceful refutation through introduction of
            out-of-court   consistent  statements  that

3
  In any event, as we discuss below, we have interpreted the
scope of the exception even more broadly.      See State v.
Muhammad, 359 N.J. Super. 361, 387-88 (App. Div.), certif.
denied, 178 N.J. 36 (2003).



                                      20                                A-2922-14T1
              predate the alleged fabrication, influence,
              or motive.     A consistent statement that
              predates the motive is a square rebuttal of
              the charge that the testimony was contrived
              as a consequence of that motive.

              [Tome v. United States, 513 U.S. 150, 158,
              115 S. Ct. 696, 701, 130 L. Ed. 2d 574, 582-
              83 (1995).]

    In     any      event,       New    Jersey     has    never     adopted    a     strict

temporal requirement for the admission of a prior consistent

statement.       "New Jersey's previous rule on the admissibility of

prior consistent statements was contained in Evid. R. 20[.]"

State v. Chew, 150 N.J. 30, 78 (1997), cert. denied, 528 U.S.

1052,   120    S.    Ct.     593,      145   L.    Ed.   2d   493    (1999).        "[T]he

predecessor Rule 20 was interpreted as not to contain a temporal

requirement        'that     a     party     seeking       admission     of    a      prior

consistent     statement         show    that     the    prior    statement    was     made

before any alleged motive to falsify existed on the part of the

declarant.'"        Id. at 79 (quoting Johnson, supra, 235 N.J. Super.

at 556).

    In 1993, New Jersey adopted N.J.R.E. 803(a)(2), which both

"repeats a portion of N.J Evid. R. 20" and "follows Fed. R.

Evid.     801(d)(1)(B)       verbatim."            Biunno,       Weissbard     &    Zegas,

Current     N.J.     Rules       of     Evidence    [hereinafter       Biunno],         1991

Supreme Court Committee Comment on N.J.R.E. 803(a) (2016).                               Our

Supreme Court declined to "resolve whether N.J.R.E. 803(a)(2)




                                             21                                    A-2922-14T1
contains the temporal requirement of the federal rule."                              Chew,

supra,   150    N.J.      at    81.        Subsequently,        we    reaffirmed      that

"[t]here     has    been       no    clear      determination,        either   by     Rule

amendment or case law, since Chew to impose a mandatory temporal

requirement on N.J.R.E. 803(a)(2)."                     Muhammad, supra, 359 N.J.

Super. at 388.

    Accordingly, it was not an abuse of discretion to admit

Detective      Bowen's     consistent           testimony    to      help   refute     the

allegation of recent fabrication.                   See Chew, supra, 150 N.J. at

80–81 (admitting consistent statements made after some motive to

fabricate arose, but before other motives to fabricate arose);

Muhammad, supra, 359 N.J. Super. at 388–89 (same).

    Finally,        the    admission       of     the   prior   statement      "did    not

constitute prejudicial error."                  Johnson, supra, 235 N.J. Super.

at 556-57.      There was substantial evidence of defendant's guilt

aside from defendant's discarding of the hat.                         Detective Bowen

and Patrolman Endres discovered defendant inside a house where

they found drugs.          When the officers arrived, defendant became

"fidgety."      The officers discovered a crack rock near his feet

and two additional pieces of crack cocaine near where he was

sitting.

    Moreover,         there          was   other        evidence      of    defendant's

discarding     of    his       hat    besides      Bowen's      testimony.          Endres




                                             22                                 A-2922-14T1
independently testified that defendant "quickly . . . grabbed

[his hat] and moved it back a little bit and then quickly . . .

pushed it.     Like just discarded it right behind him."        Finding

this suspicious, Endres asked "why he took his hat off," to

which defendant said "he didn't feel like wearing it anymore."

Given   this   and   other   evidence,   the   admission   of   Bowen's

duplicative prior testimony was not reversible error.

    Affirmed.




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