                                NOT FOR PUBLICATION WITHOUT THE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-5531-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NYFEE MALLORY,

     Defendant-Appellant.
____________________________

                    Argued January 28, 2019 – Decided February 8, 2019

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 13-05-0438.

                    Susan Brody, Deputy Public Defender, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender, attorney; Susan Brody, of counsel and on the
                    brief).

                    Michele C. Buckley, Special Deputy Attorney General/
                    Special Assistant Prosecutor, argued the cause for
                    respondent (Michael A. Monahan, Acting Union
                    County Prosecutor, attorney; Michele C. Buckley, of
                    counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      A Union County grand jury charged defendant Nyfee Mallory, and his two

co-defendants, Derrick Dunn and Corey Winston, in a four-count indictment

with first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree felony

murder, N.J.S.A. 2C:11-3(a)(3) (count two); second-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). The

trial judge later granted defendants' motion to sever their cases, and thereafter

denied defendant's motion to suppress the statements he gave to police

concerning his involvement in the offenses.

      Following a multi-day trial, the jury convicted defendant on counts one

and two, and acquitted him on both weapons charges. After merging count one

into count two, the judge sentenced defendant to a thirty-five-year term on count

two, with a thirty-year period of parole ineligibility. This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE TRIAL JUDGE'S ERROR IN FAILING TO
            INSTRUCT THE JURY SUA SPONTE AS TO THE
            AFFIRMATIVE DEFENSE TO FELONY MURDER
            DEPRIVED     DEFENDANT      OF      HIS

                                                                          A-5531-16T4
                                        2
            CONSTITUTIONAL RIGHTS TO DUE PROCESS
            AND A FAIR TRIAL. U.S. CONST. [AMENDS.] VI,
            XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
            (Not Raised Below).

            POINT II

            DEFENDANT         WAS     DEPRIVED      OF  HIS
            CONSTITUTIONAL RIGHTS TO DUE PROCESS
            AND A FAIR TRIAL BY THE JUDGE'S
            INSTRUCTION REPEATEDLY REFERRING TO A
            FLAWED AND MISLEADING EXAMPLE OF
            ACCOMPLICE LIABILITY HE HAD DEVISED,
            WHICH HAD BEEN FOUND BY THIS COURT TO
            BE INACCURATE IN A PREVIOUS CASE OVER
            WHICH HE HAD PRESIDED.              U.S. CONST.
            [AMENDS.] VI, XIV; N.J. CONST. (1947) ART. I,
            PARS. 1, 9, 10. (Not Raised Below).

            POINT III

            DEFENDANT       WAS     DEPRIVED        OF    HIS
            CONSTITUTIONAL RIGHT TO DUE PROCESS
            WHEN THE TRIAL COURT FAILED TO EXCLUDE
            AN AUDIOTAPE THAT WAS OF MINIMAL
            EXCULPATORY VALUE AND NECESSARILY
            CREATED A DEVASTATINGLY PREJUDICIAL
            IMPACT. U.S. CONST. [AMENDS.] VI, XIV; N.J.
            CONST. ART. 1, PARS. 1, 9, 10. (Not Raised Below).

      In addition, defendant argues in his pro se supplemental brief for the first

time on appeal that "the trial court's charge on accomplice liability was deficient

because it was not tied to the facts of the case."




                                                                           A-5531-16T4
                                         3
      After reviewing the record in light of the contentions advanced on appeal,

we affirm.

                                        I.

      On the morning of February 20, 2012, a group of men were playing soccer

on a field in a public park. One of the players, Felipe Rojas, noticed three young

men cross over the bridge from the school across the street, and approach a

concession stand by the field. Rojas testified that the men were dressed in black.

One of the men, who was wearing pink gloves, began doing push-ups.

      Rojas later saw that a fourth man had joined the group. Rojas soon heard

a loud "bang," which he believed was the sound of a garbage can falling over.

However, he noticed that one of the men was laying on the ground, and the other

three men were running away. The victim got up, and Rojas saw that he was

bleeding from the neck. Rojas testified that the victim began walking in an

unstable manner before falling to the ground near a goalpost.

      At approximately 10:50 a.m., a Roselle police officer received a report of

shots being fired near the soccer field. When he arrived at the scene, he found

the victim lying on the ground, motionless and unresponsive. The victim was

surrounded by soccer players, who were trying to administer first aid. The

officer called for emergency assistance. While the victim was being treated, the


                                                                          A-5531-16T4
                                        4
police recovered his cell phone and twenty-one bags of marijuana he was

carrying from the ambulance.          The efforts to revive the victim were

unsuccessful, and the medical examiner testified that his death was caused by a

single gunshot wound to the left side of his neck, which severed his left and right

carotid arteries and his left jugular vein.

      Other police arrived and tracked the victim's trail of blood from where

they found him on the soccer field, to a larger pool of blood near the concession

stand. There, the police found a .45 caliber shell casing.

      Another police officer was in the area when the shooting report was

received. He saw two men, dressed all in black, who matched descriptions given

by witnesses, and who appeared to have just stopped running. The officer

detained the men, who were later identified as co-defendants Dunn and Winston.

Dunn was carrying pink gloves. The police later released the two men.

      Later that night, the police recovered a loaded .45 caliber handgun from

under a shrub near the door of a nearby house. Ballistics analysis confirmed

that the .45 cartridge found near the concession stand was fired from the gun.

There were no fingerprints on the gun, but it contained a mix of DNA. Dunn

was identified as a major contributor to this mix, while defendant and Winston

were excluded as possible contributors.


                                                                           A-5531-16T4
                                          5
       The police also recovered a jacket that a woman found on the playground

area of a school that was across the street from the field. The jacket had a

recognizable "DX" marking on it, and defendant later acknowledged that it

belonged to him. In addition, based upon DNA testing, defendant could not be

excluded as a possible contributor to the DNA found on the jacket, while Dunn

and Winston were excluded as possible contributors.

       Two days after the murder, defendant and his father voluntarily appeared

at police headquarters. Defendant told the police there was a false rumor going

around at his school that he was involved in the shooting, and he wanted to set

the record straight. The police transported defendant to the prosecutor's office, 1

and gave defendant his Miranda2 rights. Defendant proceeded to make two

statements concerning the incident.

       In the first statement, defendant admitted he met with Dunn and Winston

on the morning of February 20, but he denied being involved in the murder.

Defendant stated that he, Dunn, and Winston planned to pool their money to buy

marijuana from the victim. Defendant first went to Winston's house, and the


1
   Defendant's father did not accompany him to the prosecutor's office and,
although he went there separately later in the day, he did not see his son again
that day.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-5531-16T4
                                        6
two men walked to a street corner where they met Dunn. The group bought a

cigar in a store, and walked down the street smoking it, and then smoking

marijuana.

      Dunn asked defendant to borrow his phone, and defendant gave it to him.

Dunn walked away and spoke to someone on the phone as he paced back and

forth between two streets. Defendant retrieved his phone, and walked home.

Defendant told the police he stayed at home for about thirty minutes before

leaving to pick up his girlfriend. He claimed that he and his girlfriend spent the

day in Jersey City. While there, a friend named Neil Bailey called and told

defendant that the police were questioning people. Another friend called and

told defendant that the victim had been shot and killed.

      When defendant learned that Dunn and Winston had been released by the

police, defendant said he tried to call them, but they did not answer their phones.

He confirmed that Dunn had a pair of pink gloves, but said he did not know if

Dunn was wearing them on the day of the murder.

      After defendant completed his statement, the detectives arrested him.

While the detectives were preparing the complaints, defendant asked to make

another statement, and the detectives again gave defendant his Miranda

warnings.


                                                                           A-5531-16T4
                                        7
      In this statement, defendant admitted to being involved in the incident at

the soccer field. Defendant told the detectives that on the morning of February

20, he exchanged a number of calls and text messages with Dunn and Winston.

During these discussions, Dunn told defendant and Winston that they needed to

do "a come up," which defendant explained was a way to get money, such as by

robbing someone. The group decided to rob a marijuana dealer of whatever

money and drugs he might be carrying.

      Defendant walked to Winston's house, and the two men soon went to meet

Dunn. Winston and Dunn were wearing black clothes. Defendant wore his

"DX" jacket. When Dunn arrived, he told them he had "the strap," which was a

term the men used to refer to a gun. Dunn also showed them the handgun. Dunn

stated he was going to use the gun to get "the come up." Defendant knew this

gun was a .45 caliber pistol because he and Dunn had picked it up in Newark

only two weeks earlier. Defendant stored the gun and bullets in a cloth bag near

a garbage can in his backyard, and Dunn also had access to it.

      Defendant told the detectives that Dunn had drawn the gun and pointed it

at a crowd during a party a few nights before the murder. Later that same night,

defendant was driving his father's car with Dunn in the passenger seat. Dunn

told defendant to follow another man's car. Defendant pulled up next to the car


                                                                        A-5531-16T4
                                        8
and Dunn took out the gun and pointed it at the occupants in the other car, who

ducked as defendant drove away. Defendant also told the detectives that Dunn

had used the gun in robberies on two separate occasions prior to the murder.

      Dunn took defendant's phone and used it to call the victim on the

speakerphone so all three men could listen in. 3 Defendant stated that Dunn used

his phone because they did not want the victim to know it was Dunn who was

calling. Dunn gave the victim the name of another person who was known to

smoke marijuana when the victim answered the phone. Dunn told the victim he

wanted to buy twenty-one bags of marijuana, and also asked the victim to bring

cash for change. The victim did not have any cash, but agreed to bring the

marijuana to the park to complete the transaction.

      Defendant stated that the men planned to take two bags each of marijuana

to smoke, and then sell the rest. They later decided that each of them would get

seven bags.

      Winston and Dunn were wearing black clothes. Defendant wore his "DX"

jacket. Because Dunn's jacket was even more distinctive, defendant stated he

gave his jacket to Dunn to wear so the victim would not recognize him from a



3
  The police obtained the records of these calls from defendant's cellphone and
the State introduced this evidence at the trial.
                                                                        A-5531-16T4
                                       9
distance. Based upon Dunn's reputation, the group was afraid the victim would

not approach them if he knew Dunn was involved in the deal.

      Defendant, Dunn, and Winston went to the park and hid near the

concession stand. As the victim approached, he recognized Dunn and realized

he was going to be robbed. The victim turned to get away, but defendant told

the detectives that Dunn shot the victim in the neck. Defendant then ran home,

and Dunn and Winston ran away as well. Defendant told the detectives that he

had lied to the police during his first statement because he was afraid he might

be killed if he implicated Dunn in the murder.

      Once he got home, defendant called Bailey a number of times before his

friend finally answered.    Bailey testified that he lived near the park, and

defendant asked him to look out the window and let him know what was

happening. Defendant later told Bailey not to tell anyone that he had called him

on the day of the murder.

      Defendant did not testify at the trial. He called his father as his only

witness. Defendant's father stated that defendant left the house around 9:30 a.m.

on the morning of the murder, and returned between 10:00 a.m. or 10:30 a.m.,

looking "happy," and asked to borrow the car to pick up his girlfriend.




                                                                         A-5531-16T4
                                      10
Defendant's father believed his son left the house again around 11:00 a.m.,

although he admitted he was not paying attention to the time.

                                         II.

      In Point I of his brief, defendant argues that the trial judge erred in failing

to sua sponte charge the statutory defense to felony murder, N.J.S.A. 2C:11-

3(a)(3). Because defendant did not raise this issue at trial, we review it for plain

error. State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-2). To warrant

reversal, the error must be "clearly capable of producing an unjust result." Ibid.

"The error must be considered in light of the entire charge and must be evaluated

in light 'of the overall strength of the State's case.'" Id. at 90 (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).           Applying this standard, we reject

defendant's contention.

      N.J.S.A. 2C:11-3(a)(3) is an affirmative defense to felony murder. State

v. Martin, 119 N.J. 2, 22-23 (1990). In pertinent part, the statutory defense

provides as follows:

            (a) Except as provided in [N.J.S.A.] 2C:11-4, criminal
            homicide constitutes murder when:

            (3) It is committed when the actor, acting either alone
            or with one or more persons, is engaged in the
            commission of, or an attempt to commit, or flight after
            committing or attempting to commit robbery, . . . and
            in the course of such crime or immediate flight

                                                                             A-5531-16T4
                                        11
            therefrom, any person causes the death of a person other
            than one of the participants; except that in any
            prosecution under this subsection, in which the
            defendant was not the only participant in the underlying
            crime, it is an affirmative defense that the defendant:

            (a) Did not commit the homicidal act or in any way
            solicit, request, command, importune, cause or aid the
            commission thereof; and

            (b) Was not armed with a deadly weapon, or any
            instrument, article or substance readily capable of
            causing death or serious physical injury and of a sort
            not ordinarily carried in public places by law-abiding
            persons; and

            (c) Had no reasonable ground to believe that any other
            participant was armed with such a weapon, instrument,
            article or substance; and

            (d) Had no reasonable ground to believe that any other
            participant intended to engage in conduct likely to
            result in death or serious physical injury.

            [N.J.S.A. 2C:11-3(a)(3).]

      These four prongs, which must all be met for the statutory defense to

apply, "focus on whether the accomplice undertook a homicidal risk or could

have foreseen that the commission of the felony might result in death." Walker,

203 N.J. at 84 (quoting Martin, 119 N.J. at 22-23).

      In order to amount to plain error, a defendant who fails to request a charge

on a defense must demonstrate that it was clearly indicated by the evidence. Id.


                                                                          A-5531-16T4
                                        12
at 87. The court is not required "to sift through the entire record in every trial

to see if some combination of facts and inferences rationally sustain a[n

unrequested] charge." State v. Rivera, 205 N.J. 472, 490 (2011) (alteration in

original) (internal quotation marks omitted) (quoting State v. Thomas, 187 N.J.

119, 134 (2006)). Instead, the need for the charge must "jump off" the proverbial

page. State v. Denofa, 187 N.J. 24, 42 (2006).

      Thus, a "[d]efendant ha[s] the burden to produce some evidence in support

of each prong of the defense, irrespective of whether there was strong evidence

to the contrary." Walker, 203 N.J. at 87; see also State v. Smith, 322 N.J. Super.

385, 396-97 (App. Div. 1999) (holding that the defendant must present some

evidence supporting all four factors of N.J.S.A. 2C:11-3(a)(3)). When the

defendant satisfies this obligation, the burden then shifts to the State to disprove

the defense beyond a reasonable doubt. N.J.S.A. 2C:1-13(b)(1)-(2); see also

Smith, 322 N.J. Super. at 398.

      Defendant did not meet his burden of production in this case. Although

defendant's trial theory was that he was not involved in the robbery or murder,

and was not even present during the offense, he did not present any evidence to

support this theory, or any evidence that would satisfy the four prongs of the




                                                                            A-5531-16T4
                                        13
statutory defense set forth in N.J.S.A. 2C:11-3(a)(3).       Instead, there was

significant evidence to the contrary.

      Specifically, defendant told the detectives that he, Dunn, and Winston

devised the plan together to "come up" with money by robbing the victim. The

three men also planned how to divide any money or drugs taken from the victim

after the robbery.   Defendant's phone was used to set up the victim, and

defendant gave Dunn his coat so the victim would not immediately recognize

him. The State also produced witnesses who placed three men at the scene with

the victim before the murder.

      While there is evidence in the record that Dunn was the shooter, this only

provided support for factors N.J.S.A. 2C:11-3(a)(3)(a) and (b). There was no

evidence supporting factors N.J.S.A. 2C:11-3(a)(3)(c) and (d). Defendant told

the detectives throughout the interview that he knew Dunn was carrying the

handgun, which the two had obtained in Newark just a couple of weeks before

the robbery. Dunn also told defendant and Winston prior to the murder that he

intended to use the weapon "to get the come up." In addition, defendant knew

from personal experience that Dunn was using the gun in the days before the

murder to rob and scare a number of different individuals.




                                                                        A-5531-16T4
                                        14
      Under these circumstances, we cannot conclude that defendant had no

reasonable ground to believe that Dunn was armed with a weapon under N.J.S.A.

2C:11-3(a)(3)(c), and no reasonable ground to believe that Dunn intended to

engage in conduct likely to result in the victim's death or serious physical injury.

Because the facts did not clearly indicate the appropriateness of charging the

statutory defense, the judge did not commit plain error by failing to instruct the

jury concerning it.

                                        III.

      In Point II of his counseled brief, and in the only point raised in his pro se

supplemental brief, defendant argues that the judge gave "a flawed and

misleading example of accomplice liability" during his final charge to the jury

and in response to the jury's subsequent questions about this concept. This

argument stands in stark contrast to defense counsel's statement during the

charge conference that the example would "make it easier for the jury to

understand accomplice liability." Because there was no objection to the court's

instruction at trial, we review the claimed error under the plain error standard.




                                                                            A-5531-16T4
                                        15
R. 2:10-2. For the following reasons, we conclude that defendant's contentions

on this point lack merit. 4

      It is well settled that "[a]ppropriate and proper charges are essential for a

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original)

(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613

(2004)). Jury instructions must give a "comprehensible explanation of the

questions that the jury must determine, including the law of the case applicable

to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J.

281, 287-88 (1981)).

      "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)). To



4
   Citing two unreported opinions, defendant asserts that other panels of this
court have found the judge's example to be "inaccurate." We cite these
unpublished opinions only for context to address defendant's arguments, and not
as precedential authority. See R. 1:36-3. In the first of these cases, State v.
Merrett, No. A-5443-07 (App. Div. Feb. 10, 2011), it is not clear whether the
judge's example was used because it is not quoted in the opinion. In any event,
the panel held that looking at the charge as a whole, the judge "thoroughly and
correctly instructed the jury on the elements of accomplice liability[,]" even
though the panel agreed that the judge's example "might have been better
phrased[.]" (slip op. at 25). Similarly, in State v. Green, No. A-0680-09 (App.
Div. June 27, 2012), the panel concluded that taken as a whole, the instruction
passed muster under a plain error standard. (slip op. at 10-11).
                                                                           A-5531-16T4
                                       16
assess the soundness of the jury instruction, we consider "how and in what sense,

under the evidence before them, and the circumstances of the trial, would

ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172

N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted)

(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)).

      Applying these principles, we discern no grounds for concluding that the

judge's instruction on accomplice liability, including the example he used to

illustrate the charge, was defective as a matter of plain error. Under N.J.S.A.

2C:2-6(c),

             A person is an accomplice of another person in the
             commission of an offense if:

             (1) With the purpose of promoting or facilitating the
             commission of the offense; he [or she]

             (a) Solicits such other person to commit it;

             (b) Aids or agrees or attempts to aid such other person
             in planning or committing it; or

             (c) Having a legal duty to prevent the commission of
             the offense, fails to make proper effort so to do; or

             (2) His [or her] conduct is expressly declared by law to
             establish his complicity.

      "[A] jury must be instructed that to find a defendant guilty of a crime

under a theory of accomplice liability, it must find that he 'shared in the intent

                                                                           A-5531-16T4
                                       17
which is the crime's basic element, and at least indirectly participated in the

commission of the criminal act.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528

(App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). Here, the

accomplice liability charge applied to the charge of robbery. A person is guilty

of robbery if, in the course of committing a theft, he:

            (1) Inflicts bodily injury or uses force upon another; or

            (2) Threatens another immediately to commit any
            crime of the first or second degree.

            An act shall be deemed to be included in the phrase "in
            the course of committing a theft" if it occurs in an
            attempt to commit theft or in immediate flight after the
            attempt or commission.

            [N.J.S.A. 2C:15-1(a).]

      In addition to instructing the jury on these principles, the judge provided

the following example to the jury while discussing accomplice liability:

                 Before I give you the definition and elements of
            accomplice liability, I would like to begin with an
            example to help you in understanding this concept.

                    A friend comes by your house to pick you up and
            says:

                    Hey, do me a favor.

                    Will you drive my car?



                                                                           A-5531-16T4
                                       18
       I have to go to the bank and make a withdrawal
and I don't want to pull the car into the lot because it is
hard to find a parking space. It is a busy street, so just
stay in the no-parking zone in the front of the bank and
this way when I come out, I can just jump into the car
and leave. It will save me a lot of time.

      You agree.

      You drive the car to the bank, pull up in front and
leave the engine running while your friend goes into the
bank. While you are sitting in the car, your friend
comes running out of the bank, jumps into the car and
says, Okay, let's go.

      You are driving down the street and suddenly
police cars are coming at you from every direction.
You pull over and the police order you out of the car.

      You explain: Wait a minute officer. I didn't do
anything. What are you doing?

     The police say, Your friend has robbed the bank.
The withdrawal that you thought your friend was
making was really a bank robbery, but you did not know
it.

      In this example, you are not an accomplice. You
are not an accomplice because you did not share the
purpose to commit the crime. Even though you were
present and involved, you did not have the purpose to
commit that specific crime. You cannot be held
responsible for the actions of the other person who
committed the bank robbery.




                                                              A-5531-16T4
                           19
      The judge continued his instructions by modifying the facts in his first

example to give the jury an example of a situation where the defendant would

be guilty of robbery under accomplice liability. The judge stated:

                   In the second example, I will alter the facts
            slightly.

                  Your friend calls you on the phone and says: I
            need a ride to the bank. I have to make a withdrawal.

                  As you pull up to the front of the bank with your
            friend, he pulls out a gun and says, I'll be right back.
            I'm going in to rob the bank. You see the gun and you
            now realize he is not making a withdrawal, he is going
            to rob the bank. You sit and wait in the car for him to
            return and you assist him in the get-away.

                  In this example, you have now shared the purpose
            for him to commit the act, you knew he had the gun and
            he told you he was going to rob the bank. You assisted
            him or aided him in committing the crime. You did this
            by waiting for him outside the bank and then driving
            him away. You did all of this with the purpose that the
            crime of robbing the bank be committed. You shared
            the purpose for him to commit the crime. You are,
            therefore, an accomplice.

                  The difference between the two examples is the
            phrase "share the purpose to commit the crime."

      Defendant did not object to this charge when the judge gave it to the jury.

For the first time on appeal, he now argues that the charge, and the other

references to the two examples the judge made in his instructions, were defective


                                                                         A-5531-16T4
                                      20
because "[n]owhere in the second part of the example is the alleged accomplice's

purpose even mentioned; the only state of mind mentioned in the factual

hypothesis is one of knowing what the principal intends." We disagree.

      Shortly after giving the jury the examples set forth above, the judge

specifically instructed the jury that it should only convict defendant under

accomplice liability if he had the requisite mental state. The judge explained:

                  Remember that this [d]efendant can be held to be
            an accomplice with equal responsibility only if you find
            beyond a reasonable doubt that he possessed the
            criminal state of mind that is required to be proven
            against the person who actually committed the criminal
            acts.

                   In order to convict the [d]efendant as an
            accomplice to the crime of first-degree robbery, you
            must find that the [d]efendant had the purpose to
            participate in the first-degree robbery. He must act with
            the purpose of promoting or facilitating the commission
            of that substantive crime.

                  It is not sufficient to prove only that the
            [d]efendant had knowledge that another person was
            going to commit the crime charged. The State must
            prove that it was [d]efendant's conscious object that the
            specific conduct charged be committed.

                   To reiterate, the elements of accomplice liability
            are:

                   One, that an offense was committed.



                                                                         A-5531-16T4
                                      21
                  Two, that this [d]efendant did solicit, aid, agree
            to aid, or attempt to aid another in committing or
            planning the offense.

                 Three, that this [d]efendant's purpose was to
            promote or facilitate the commission of the offense.

                   Four, that this [d]efendant possessed the criminal
            state of mind that is required to be proven against the
            person who actually committed the criminal act.

      During its deliberations, the jury asked the judge to further explain the

example he included in the final charge. In his response to this inquiry, the

judge again told the jurors that in order to find an accomplice liable for the

conduct of another in the bank robbery example, the jury would have to conclude

that the accomplice and the principal both had the state of mind necessary to

support a conviction for that offense. In addition, the judge instructed the jurors

to look at the accomplice charge in its entirety. Defendant's attorney stated that

he agreed with the judge's answer to the jury's question.

      As noted above, "in reviewing any claim of error relating to a jury charge,

the 'charge must be read as a whole in determining whether there was any

error[.]'" State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (quoting

State v. Torres, 183 N.J. 554, 564 (2005)). Applying this rule, we are satisfied

that the additional instructions to the jury following the example made clear to

the jury that mere awareness that another person will commit a crime, without

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                                       22
the specific intent that the crime be committed, will not suffice for accomplice

liability. The judge's example did not adequately address the required mental

state, but any confusion that might have been caused was immediately clarified

through the additional instructions. Reading the charge as a whole, we detect

no error that was clearly capable of producing an unjust result. R. 2:10-2.

Therefore, we reject defendant's arguments on this point.

                                      IV.

      Finally, defendant argues in Point III that the trial judge should have

conducted a sua sponte hearing under Rule 104 in order to determine whether a

strategic decision made by defense counsel was unduly prejudicial. We decline

defendant's invitation to second-guess counsel's decision for the first time on

appeal. R. 2:10-2.

      While cross-examining the detective who took defendant's statements at

the prosecutor's office, defense counsel advised the judge that he intended to

introduce an audiotape of Dunn speaking to another person about the robbery. 5

In the tape, Dunn stated that: he and Winston were not involved in the robbery;

defendant was the one who shot the victim; and the other participant in the


5
 This tape was made by the other individual's mother, who recorded it while
Dunn was talking to her son at their front door.


                                                                        A-5531-16T4
                                      23
conversation should tell everyone in town Dunn and Winston "had nothing to do

with" it.

       The judge asked the prosecutor if he had any objection, and the prosecutor

replied in the negative. The judge called a sidebar and, after ascertaining the

content of the tape, 6 asked defense counsel, "You want this in?" Defense

counsel replied, "Oh yeah. It sounds strange, but yes." Counsel explained that

playing the tape would demonstrate why defendant made the decision to speak

to the police to clear his name because it showed that there were false rumors

started by Dunn and Winston going around about his possible involvement in

the murder.7

       Defense counsel then played the tape. 8      In addition to stating that

defendant was the shooter, Dunn also claimed during the tape that he tried to

grab the victim after he was shot in order to help him. By cross-examining the

detective, and showing him a photo of Dunn after he was arrested, counsel was



6
    The tape was approximately 100 seconds in length.
7
   In his final argument to the jury, counsel repeated this argument, and also
asserted that it showed that Dunn had attempted to shift the blame to his client
almost immediately by "making up a story."
8
  The tape was marked for identification before it was played, but it was not
admitted in evidence.
                                                                         A-5531-16T4
                                       24
able to attack Dunn's credibility by establishing that although the victim was

bleeding profusely, Dunn did not have any blood on him when he was caught by

the police.

      Defendant now argues that the judge was obligated to conduct a hearing

to determine whether the "minimal exculpatory value" of the tape was

outweighed by the prejudice he may have suffered from having Dunn's statement

that defendant was the shooter heard by the jury. We disagree.

      Our Supreme Court has long recognized that a defendant generally has a

right to defend a case as he or she sees fit. Thus, "[t]rial courts must carefully

refrain from preempting defense counsel's strategic and tactical decisions and

possibly prejudicing defendant's chance of acquittal." State v. Perry, 124 N.J.

128, 162 (1991). Put another way,

              [a] fair assessment of attorney performance requires
              that every effort be made to eliminate the distorting
              effects of hindsight, to reconstruct the circumstances of
              counsel's challenged conduct, and to evaluate the
              conduct from the counsel's perspective at the time.
              Because of the difficulties inherent in making the
              evaluation, a court must indulge a strong presumption
              that counsel's conduct falls within the wide range of
              reasonable professional assistance; that is, the
              defendant must overcome the presumption that, under
              the circumstances, the challenged action "might be
              considered sound trial strategy."



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                                        25
            [Strickland v. Washington, 466 U.S. 668, 689 (1984)
            (quoting Michel v. Louisiana, 350 U.S. 91, 101
            (1955)).]

      Following these principles, we discern no plain error under the

circumstances of this case. The tape was relevant to defendant's defense that he

was wrongly implicated by Dunn and Winston who were spreading false rumors

about him in an attempt to avoid blame themselves. While other attorneys might

have made a different tactical decision, defense counsel provided an explanation

for his strategy when questioned by the judge.       Thus, the judge correctly

refrained from preempting defense counsel's strategic and tactical decision.

Perry, 124 N.J. at 162.

                                      V.

      In sum, we affirm defendant's convictions and sentence. 9

      Affirmed.




9
  As for the balance of any of defendant's arguments not expressly discussed
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
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