                        NOT FOR PUBLICATION WITHOUT THE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-3030-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VINCENT G. SMITH, a/k/a
VINCENT WARNER and
VINCENT GLASCO,

     Defendant-Appellant.
____________________________

              Submitted January 8, 2018 – Decided July 12, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              13-12-3157.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel V. Gautieri, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Stephen
              A.    Pogany,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant Vincent Smith appeals his convictions and sentence

following a jury trial for aggravated assault and burglary.                   Based

on our review of the record and defendant's arguments under the

applicable legal principles, we affirm defendant's convictions,

vacate    the   court's    order    imposing       consecutive    sentences      and

denying   defendant   an    award     of    jail    credits,     and    remand   for

reconsideration of the imposition of consecutive sentences and the

denial of jail credits.

                                       I.

     Defendant was charged in an indictment with second-degree

aggravated      assault,     N.J.S.A.         2C:12-1(b)(1),           third-degree

terroristic threats, N.J.S.A. 2C:12-3(a), second-degree burglary,

N.J.S.A. 2C:18-2(a)(1), fourth-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).                     The court

dismissed count two prior to trial.

     Co-defendant Shahid Salaam was charged in the indictment with

third-degree     terroristic       threats,    N.J.S.A.    2C:12-3(a)        (count

three), and third-degree burglary, N.J.S.A. 2C:18-2 (count five).

Salaam pleaded guilty to two criminal charges, a violation of

probation on two burglary charges, and a motor vehicle offense.

As part of his plea agreement, he agreed to "cooperate in any



                                       2                                    A-3030-15T1
future proceedings against" defendant in exchange for the State's

recommendation that he receive a time-served sentence.

     The evidence at defendant's trial showed that on June 14,

2013, Salaam and defendant went to the former United Hospital, a

building in disrepair that was no longer in use.   They went to the

building to steal copper and brass pipes from its interior because

of the metal's resale value.

     Salaam had previously entered and stolen scrap metal from the

building.   He testified that he entered the building through holes

he made in windows, and other points of entry and egress in the

building, so he could "get out from various positions."            He

explained the holes had boards placed over them so it appeared

there were boarded windows when "it really ain't boarded.        You

just pull the board up."

     The building was protected by a twenty-four hour security

force, cameras and no trespassing signs.       The security force

included armed uniformed guards who had a marked security vehicle.

The security force's protocol required that the guards attempt to

apprehend anyone found inside the building.

     Salaam was aware the building was guarded by a security force,

and considered its presence when planning the timing of his

attempts to take metal from the building.   He would arrange for a



                                 3                          A-3030-15T1
driver and a vehicle to be readily available when he exited the

premises.

     According to Salaam, one week prior to June 14, 2013, he and

defendant entered the building together to steal metal for resale.

Salaam used his tools to extract a few hundred dollars worth of

metals, and left the metals in bags he and defendant intended to

retrieve at a later time.      However, Salaam fell asleep in the

building, and when he awoke defendant and the bags containing the

stolen metal were gone.    Salaam believed defendant took the bags

and his tools.

     By June 14, 2013, Salaam located defendant, who explained the

bags had been placed in another location within the building.

Defendant agreed to go back to the building with Salaam to retrieve

the bags.   According to Salaam, he and defendant agreed to go to

the building, where he would retrieve the bags with the stolen

metals and hand them to defendant as he stood outside of the

building.   Their plan was that defendant would place the bags in

the driver's vehicle, which would then transport defendant and

Salaam from the scene.    Salaam testified defendant and the driver

were going to receive "their rightful share" of the proceeds from

the sale of the stolen metals.

     In accordance with the plan, on June 14, 2013, Salaam entered

the building alone through a boarded hole while defendant remained

                                  4                         A-3030-15T1
outside.   Security guard Todd Thompson patrolled the grounds and

noticed a truck circling the property.        Aware of past break-ins

at the building, Thompson positioned himself in front of the

building to investigate.     At the same time, Kassim Riddick, the

head of security from an adjoining property, called Thompson and

told him to respond immediately because there were two men inside

of the building.

     Riddick   and   Carl   Pemberton,   an   information   technology

technician for the adjoining property's security cameras, saw

defendant outside of the building, and ran after him.          Salaam,

while still in the building, noticed people pursuing defendant,

and told defendant to come inside of the building.      Salaam opened

a double-door and defendant ran inside.

     Once defendant entered the building, Salaam heard someone

attempting to pick the lock from the outside and open the door.

Salaam told defendant: "[D]on't let none of them grab you.            If

they try to grab you, you better pick up something and hit one of

them upside the head with it."

     When Thompson arrived at the building, defendant and Salaam

were inside and Riddick and Pemberton were yelling at them through

the double-door.     Thompson called for backup, and entered the

building from another entrance to pursue defendant and Salaam.



                                  5                            A-3030-15T1
     When Thompson entered the building, he could be seen by

defendant and Salaam.     They each took bags containing the stolen

metals and ran down a hallway away from Thompson.         According to

Salaam, he ran ahead of defendant because defendant "was[ not] in

that good [] of shape."    When Salaam arrived at an exit, he waited

for defendant to reach him.

     Thompson confronted defendant before defendant reached the

exit.   Thompson had his gun drawn.      Defendant "took a swing at

Thompson and it looked like [defendant] swung and swung himself

around[.]"   Thompson fired his gun and shot defendant in the leg.

     When Salaam saw the gun flash, he left the bags, "[j]umped

through the makeshift window[,]" and fled the scene, leaving

defendant    with   Thompson,   Pemberton,   and   Riddick.   Thompson

handcuffed defendant, and called the police and an ambulance.

     Defendant did not testify at trial. He presented one witness,

Dr. Zhongxue Hua, an expert in forensic pathology.            Dr. Hua

testified concerning his examination of defendant's gunshot wounds

and review of defendant's medical records.         He opined that "the

gunshot entrance wound was in the back of the thigh," and the exit

wound was "in the front of the leg."          The testimony supported

defendant's argument that he was shot from behind as he fled from

Thompson, and was not shot from the front in response to his

alleged assault on Thompson.

                                   6                           A-3030-15T1
     The jury found defendant guilty of a lesser-included offense

under count one of third-degree aggravated assault by attempting

to cause significant bodily injury to Thompson, and second-degree

burglary as charged in count four.   Defendant was found not guilty

of the weapons offenses.

     The court imposed a four-year year sentence on defendant's

conviction for aggravated assault and a concurrent eight-year

sentence subject to the requirements of the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, on defendant's second-degree burglary

conviction.      The court directed that the sentences be served

consecutive to a five-year custodial term defendant was serving

on an unrelated burglary charge.     The court awarded 346 days of

gap time credit, but did not award any jail credits.   See N.J.S.A.

2C:44-5(b)(2).

     Defendant appealed, and offers the following arguments for

our consideration.

          POINT I

          BECAUSE THE CIRCUMSTANCES OF DEFENDANT'S ENTRY
          INTO THE HOSPITAL BUILDING WERE AMBIGUOUS, THE
          COURT ERRED IN FAILING TO TAILOR THE BURGLARY
          CHARGE TO THE CRITICAL ISSUE OF WHETHER THE
          DEFENDANT ENTERED WITH THE INTENT TO EVADE A
          POSSIBLE ASSAULT BY HIS PURSUERS OR WITH THE
          INTENT TO COMMIT AN OFFENSE. THE FLAWS IN THE
          CHARGE WERE COMPOUNDED BY THE ACCOMPLICE
          CHARGE, WHICH OMITTED LANGUAGE STATING THAT
          THE DEFENDANT'S INTENT MAY HAVE DIFFERED FROM
          THAT OF HIS CO-DEFENDANT.

                                 7                          A-3030-15T1
          A. The Burglary Charge Was Insufficient, As
          It Failed to Adequately Focus the Jurors'
          Attention on [Defendant's] Intent at the Time
          of His Entry Into the Hospital Building And
          to Instruct Jurors That There Were Potential
          Non-Criminal Explanations For His Entry.

          B.   The Accomplice Charge Was Inadequate,
          Because It Omitted the Language Contained in
          the   Model   Charge   That    Explained   How
          [Defendant's] Intent May Have Differed From
          That of His Co-defendant in a Case Where the
          Prosecutor   Incorrectly    Told   Jurors   in
          Summation That the Co[-]defendant had the Same
          Intent.

          POINT II

          THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE
          REPEATEDLY AND UNFAIRLY DISPARAGED THE DEFENSE
          FORENSIC EXPERT AND BOLSTERED THE CREDIBILITY
          OF THE STATE'S WITNESSES IN A CASE WHERE THE
          CREDIBILITY OF THE WITNESSES WAS ESSENTIAL TO
          THE ISSUES OF AGGRAVATED ASSAULT AND SECOND-
          DEGREE BURGLARY.

          POINT III

          THE MATTER SHOULD BE REMANDED FOR RESENTENCING
          BECAUSE THE COURT FAILED TO PROVIDE ANY
          REASONS FOR RUNNING THE SENTENCE CONSECUTIVE
          TO THE ONE [DEFENDANT] WAS ALREADY SERVING,
          AND THE COURT FAILED TO AWARD PROPER JAIL
          CREDIT.

                                  II.

    Defendant contends he was deprived of a fair trial and due

process because the court erred in its jury instructions on

burglary and accomplice liability.               He first claims the court

failed   to   instruct   the   jury       with    particularity   concerning


                                      8                              A-3030-15T1
defendant's intent at the time he entered the building, and should

have instructed the jury to consider evidence showing a possible

non-criminal purpose for his entry into the building – to protect

himself from physical harm from Pemberton and Riddick's pursuit.

He also claims the court erred by failing to include in the charge

on accomplice liability an instruction that defendant's intent may

have differed from Salaam's.

     "[A]ppropriate and proper charges [to a jury] are essential

for a fair trial."     State v. Baum, 224 N.J. 147, 158-59 (2016)

(first alteration in original) (quoting State v. Reddish, 181 N.J.

553, 613 (2004)).    A trial court has an "independent duty . . .

to ensure that the jurors receive accurate instructions on the law

as it pertains to the facts and issues of each case, irrespective

of the particular language suggested by either party."        Id. at 159

(alteration in original) (quoting Reddish, 181 N.J. at 613).

"Because proper jury instructions are essential to a fair trial,

'erroneous   instructions   on   material   points   are   presumed   to'

possess the capacity to unfairly prejudice the defendant."         Ibid.

(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

     We consider each of the alleged errors under the plain error

standard, R. 2:10-2, because defendant did not object at trial to

the jury charges.    Under the plain error standard, defendant must

demonstrate the alleged errors were "clearly capable of producing

                                   9                             A-3030-15T1
an unjust result."      R. 2:10-2.      In the context of a jury charge,

plain error is a "[l]egal impropriety in the charge prejudicially

affecting the substantial rights of the defendant and sufficiently

grievous to justify notice by the reviewing court and to convince

the court that of itself the error possessed a clear capacity to

bring about an unjust result."            State v. Camacho, 218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams, 194

N.J. 186, 207 (2008)).       We consider the jury instructions "as a

whole" to determine if an error constitutes plain error.                State

v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183

N.J. 554, 564 (2005)).      Where, as here, there was no objection to

the charges, "there is a presumption that [a] charge was not [in]

error and was unlikely to prejudice the defendant's case."              State

v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57

N.J. 325, 333-34 (1971)).

                                       A.

      We first consider defendant's claim the court erred by failing

to sua sponte advise the jury during the burglary instruction that

defendant was entitled to an acquittal if it determined defendant

entered the building to protect himself from Pemberton or Riddick

or   to   visit   a   then-operating      business   within   the   building.

Defendant contends the evidence supported such a charge, and the

court erred by failing to tailor the jury instruction based on the

                                     10                               A-3030-15T1
evidence as required under State v. Robinson, 289 N.J. Super. 447,

449-50 (App. Div.   1996).     We are not persuaded.

     In Robinson, we considered the defendant's challenge to a

jury instruction on the offense of burglary that did not "define

the specific offense defendant intended to commit after he entered

the building."   Id. at 455.    We held that under the circumstances

presented, it was not plain error for the court to fail to identify

the specific offense it was alleged defendant intended to commit

because "the jury was not confronted by conflicting explanations

as to defendant's purpose in entering the building," and the

"unequivocal nature of [the defendant's] conduct . . . suggest[ed]

only a criminal purpose."      Ibid.   We held that

          where the circumstances surrounding the
          unlawful entry do not give rise to any
          ambiguity or uncertainty as to a defendant's
          purpose in entering a structure without
          privilege to do so, so long as those
          circumstances lead inevitably and reasonably
          to the conclusion that some unlawful act is
          intended to be committed inside the structure,
          then specific instructions delineating the
          precise    unlawful    acts    intended    are
          unnecessary.

          Id. at 458 (alteration in original).

     In contrast, in State v. Marquez, 277 N.J. Super. 162, 169

(App. Div. 1994), we reversed the defendant's burglary conviction

because the circumstances surrounding the defendant's entry into

an apartment were ambiguous and, based on the evidence and the

                                  11                         A-3030-15T1
jury charge, it was not possible to determine if the jury convicted

the defendant of entering the apartment to commit an offense

therein as required under N.J.S.A. 2C:18-2, or for a purpose

insufficient to support a burglary conviction.

     Here, the court instructed the jury on the charge of burglary

in accordance with the model jury instruction, see Model Jury

Charge   (Criminal),    "Burglary    in   the    Second   Degree   (N.J.S.A.

2C:18(b))" (rev. March 14, 2016), and also instructed the jury

that defendant was charged with burglary as Salaam's accomplice.

The court explained that the State alleged defendant was guilty

of the burglary committed by Salaam and must find defendant guilty

of the offense if the State proved beyond a reasonable doubt that

Salaam committed the offense of burglary, and defendant aided

Salaam   in   the   planning   or   commission    of   the   burglary     while

possessing the same criminal state of mind that is required to

prove the offense against Salaam.

     The court was not required to modify the burglary instruction

to specify that defendant may have had a lawful purpose for

entering the building because it was Salaam's entry into the

building, and defendant's actions as an accomplice, that supported

defendant's burglary conviction.          The evidence showed Salaam had

only one purpose in entering the building on June 14, 2013: he

testified he entered the building to complete the theft of the

                                     12                                 A-3030-15T1
pipes he and defendant harvested, but did not remove, one week

earlier.        The evidence further showed defendant went to the

building with Salaam pursuant to their plan to retrieve the stolen

pipes from the building's interior, with defendant waiting outside

to receive the stolen metal from Salaam and supervise the getaway

driver.

     The court was not obligated to instruct the jury about

alternative purposes for entry into the building because unlike

in Marquez, 277 N.J. Super. at 169, the evidence here did not

suggest any ambiguity in Salaam's purpose for which defendant was

legally responsible because he planned and assisted Salaam in the

unlawful entry and theft as an accomplice.            The evidence showed

Salaam    and    defendant   shared   a    singular   purpose   –   Salaam's

unauthorized entry into the building to commit a theft of the

stowed bags of metal.         The evidence did not give rise to any

ambiguity of purpose and, therefore, it was unnecessary for the

court to inform the jury to consider other purported lawful

purposes for defendant's entry into the building.           See Robinson,

289 N.J. Super. at 458.

     Defendant also contends the court erred by omitting language

from the model jury charge on accomplice liability that explained

a defendant's "responsibility as an accomplice may be equal and

the same as [the person] who actually committed the crime[] or

                                      13                             A-3030-15T1
there may be responsibility in a different degree depending on the

circumstances as you may find them to be."                 Defendant further

argues the court erred by failing to instruct the jury that if he

was found not guilty of acting as Salaam's accomplice on the

burglary charge, it could find him guilty as an accomplice on a

lesser included offense if he acted as an accomplice with a purpose

to commit the lesser included offense.            See Model Jury Charge

(Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)"

(rev. May 22, 1995).

     Defendant's arguments are without merit sufficient to warrant

a discussion in a written opinion, R. 2:11-3(e)(2), other than to

note that the record is bereft of any evidence showing defendant

acted with a purpose other than to assist Salaam in the unlawful

entry into the building to complete the theft of the metal they

unlawfully undertook one week before.           See State v. Wilder, 193

N.J. 398, 413-18 (2008) (the trial court has no obligation to

provide   instructions   for   which    there    is   no    support   in   the

evidence).

                                 III.

     Defendant next argues the prosecutor engaged in prosecutorial

misconduct that deprived him of his right to a fair trial.                 More

particularly,   he   asserts   the     prosecutor     made     inappropriate

comments and personal attacks during his cross-examination of Dr.

                                  14                                  A-3030-15T1
Hua   and,    during      his    summation,     "repeatedly   and     ruthlessly

attacked" Dr. Hua, demeaned the defense, offered improper opinions

concerning witness credibility, and made arguments that were not

supported by the evidence.

      "A prosecutor must 'conscientiously and ethically undertak[e]

the difficult task of maintaining the precarious balance between

promoting justice and achieving a conviction,' ensuring that at

all times his or her 'remarks and actions [are] consistent with

his or her duty to ensure that justice is achieved.'"                  State v.

Jackson,     211   N.J.   394,    408   (2012)   (alterations    in   original)

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). "Whether

particular prosecutorial efforts can be tolerated as vigorous

advocacy or must be condemned as misconduct is often a difficult

determination to make.           In every instance, the performance must

be evaluated in the context of the entire trial, the issues

presented, and the general approaches employed."              State v. Negron,

355 N.J. Super. 556, 576 (App. Div. 2002).

      In   reviewing      a     claim   of    prosecutorial   misconduct,       we

consider: "whether 'timely and proper objections' were raised;

whether the offending remarks 'were withdrawn promptly'; . . .

whether the trial court struck the remarks and provided appropriate

instructions to the jury . . . [and] whether the offending remarks

were prompted by comments in the summation of defense counsel."

                                        15                               A-3030-15T1
State v. Smith, 212 N.J. 365, 403-04 (2012) (internal citations

omitted).      Moreover, "[g]enerally, if no objection was made to the

improper remarks, the remarks will not be deemed prejudicial."

State v. R.B., 183 N.J. 308, 333 (2005) (citation omitted).

"Failure to make a timely objection indicates that defense counsel

did not believe the remarks were prejudicial at the time they were

made," and "deprives the court of the opportunity to take curative

action."       State    v.   Timmendequas,   161   N.J.   515,   576    (1999)

(citations omitted).

       In addition, even if the prosecutor exceeds the bounds of

proper conduct, "[a] finding of prosecutorial misconduct does not

end a reviewing court's inquiry because, in order to justify

reversal, the misconduct must have been 'so egregious that it

deprived the defendant of a fair trial.'"            State v. Smith, 167

N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83

(1999)).    "To justify reversal, the prosecutor's conduct must have

been    clearly       and    unmistakably    improper,    and    must       have

substantially prejudiced [the] defendant's fundamental right to

have a jury fairly evaluate the merits of his [or her] defense."

State v. Nelson, 173 N.J. 417, 460 (2002) (alterations in original)

(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).

       Our review of the record shows that the prosecutor conducted

an   intense    and    relentless   cross-examination     of   Dr.   Hua,    and

                                      16                               A-3030-15T1
challenged Dr. Hua's consideration of the evidence related to

defendant's injuries, his ability to make the observations upon

which his opinion was based, the thoroughness of his review of the

relevant medical records and the comprehensiveness of his report.

Although the prosecutor asked what might be properly characterized

as boorish and snide comments about Dr. Hua's vision based on his

testimony that he needed glasses to drive an automobile, the

questions directly challenged Dr. Hua's credibility.        Dr. Hua

testified his opinion was based in part on his visual examination

of defendant's wound sites, and thus his ability to accurately

observe the sites was an appropriate subject of cross-examination.

Similarly,   the   prosecutor   questioned   the   credibility   and

comprehensiveness of Dr. Hua's report by pointing out, in a clearly

sarcastic manner, that the doctor may not have reviewed all of the

pertinent medical records and that his curriculum vitae was longer

than his report concerning defendant's injuries.

     Prosecutors "may 'strike hard blows . . . [but not] foul

ones.'"   State v. Echols, 199 N.J. 344, 359 (2009) (alteration in

original) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007)).

Although the tone of some of the cross-examination questions posed

by the prosecutor was harsh and shrouded with sarcasm, we are not

convinced the questions were "clearly and unmistakably improper."

Nelson, 173 N.J. at 460.   To the contrary, they directly pertained

                                17                          A-3030-15T1
to   legitimate    subjects     for    cross-examination         –   Dr.     Hua's

credibility and the thoroughness of his analysis and medical

report.    Moreover, defense counsel did not perceive the questions

to be prejudicial — he did not interpose an objection at the time,

see Timmendequas, 161 N.J. at 576, and defendant makes no showing

that the questions, even if improper, substantially prejudiced his

right to have a jury fairly evaluate the merits of his defense,

see Nelson, 173 N.J. at 460.

     Defendant     also     argues    that   the        prosecutor    committed

prosecutorial misconduct by making improper attacks upon Dr. Hua

during his summation.         "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. Cordero, 438 N.J. Super. 472, 489-90 (App. Div. 2014) (quoting

Frost, 158 N.J. at 82).      "[I]n the prosecutor's effort to see that

justice is done, the prosecutor 'should not make inaccurate legal

or factual assertions during a trial.'"             State v. Bradshaw, 195

N.J. 493, 510 (2008) (quoting Frost, 158 N.J. at 85).                "Rather, a

prosecutor should 'confine [his or her] comments to evidence

revealed during the trial and reasonable inferences to be drawn

from that evidence.'"        Ibid.    (alteration in original) (quoting

Smith, 167 N.J. at 178).



                                      18                                   A-3030-15T1
      "Summation commentary, however, must be based in truth, and

counsel may not 'misstate the evidence nor distort the factual

picture.'"     Adelson,    187      N.J.   at   431    (citation   omitted).

Prosecutors   are   afforded   significant      freedom    as   long   as   the

commentary is reasonably related to the evidence before the jury.

State v. Harris, 141 N.J. 525, 559 (1995).            In fact, in a criminal

case, a prosecutor is entitled and expected to make his closing

arguments vigorously and forcefully.             Frost, 158 N.J. at 82;

Harris, 141 N.J. at 559.

      Here, during his summation the prosecutor commented twice on

Dr.   Hua's   examination      of     defendant's       gunshot    wound      as

insufficient, sarcastically stating that Dr. Hua underwent "an

extra five, six year[s] of education so that he can look at an

external wound on an eye test[,]" and observing that Dr. Hua

conducted a visual examination of defendant's wounds but the

jurors' "eyes are just as good as his.          By the way your eyes are

better than his.     He doesn't – he can't even drive on the road,

but that's what he's relying on."          The prosecutor twice remarked

on the length of Dr. Hua's report stating: "I was not going to let

him skate through with a report less than 500 pages[,]" and that

Dr. Hua "submit[ted] a report of one and a half pages, half the

length of his CV."



                                     19                                A-3030-15T1
      While    we   may       not    admire      the   tone        of    the     prosecutor's

summation, we find nothing improper in these comments.                                 Each is

founded on the evidence presented and supports a permissible

argument concerning Dr. Hua's credibility.

      The prosecutor, however, crossed the line in certain other

statements concerning Dr. Hua during summation.                                He offered an

opinion that Dr. Hua "made a mockery of [the jury's] time,"

"completely disrespected the entire [judicial] system," and did

not "seem to have a moral conscience."                              A prosecutor cannot

properly      express     a     personal         belief      regarding           a    witness's

truthfulness, State v. Staples, 263 N.J. Super. 602, 605 (App.

Div. 1993), but that is precisely what the prosecutor did here,

see State v. Marshall, 123 N.J. 1, 156 (1991) (finding it proper

for a prosecutor to argue that a witness's testimony is credible,

but improper to offer an opinion on the witness's credibility);

see also State v. Moore, 122 N.J. 420, 461-62 (1991) (holding it

was improper for the prosecutor to refer to defense expert as

"professional       bleeding        heart     who      was    indeed        duped      by    the

defendant"); Marquez, 277 N.J. Super. at 172 (finding it improper

for   the   prosecutor        to    comment,      without          any    basis,      that   the

defendant's      attorney           had   scripted           the        expert       witnesses'

testimony).



                                            20                                          A-3030-15T1
       We are not, however, convinced the prosecutor's improper

comments deprived defendant of his right to have the jury fairly

evaluate the evidence and his defense.          Nelson, 173 N.J. at 460.

Again, there was no objection to the prosecutor's statements and

we therefore deem the statements not to be prejudicial. R.B., 183

N.J. at 333.    The court also properly instructed the jury that it

was the sole judge of witness credibility, and that counsel's

arguments or comments are not evidence.         Accordingly, "[w]e assume

the jury followed the court's instructions."          See State v. Little,

296 N.J. Super. 573, 580 (App. Div. 1997).             Moreover, when the

prosecutor's brief comments are considered in the context of the

evidence    presented    and    the    prosecutor's     otherwise       proper

summation, they were not so egregious as to have deprived defendant

of a fair trial.    Smith, 167 N.J. at 181.

       Defendant also points to other comments made by the prosecutor

during his summation, and claims they were not based on the

evidence    presented   at   trial,    improperly   bolstered     witnesses'

credibility, demeaned the defense and misstated the applicable

law.    We have carefully considered these contentions and they are

without    sufficient   merit   to    warrant   discussion   in   a    written

opinion. R. 2:11-3(e)(2). We add only that there was no objection

to any of the challenged statements, our review of the prosecutor's

summation    reveals    that    the    challenged   statements        did   not

                                      21                               A-3030-15T1
constitute improper argument, and even if the statements were

improper, they did not substantially prejudice defendant's right

to have a jury fairly evaluate the merits of his defense.        See

Nelson, 173 N.J. at 460.

                               IV.

     Defendant also makes two arguments related to his sentencing.

He contends the court erred by failing to provide reasons for the

imposition of consecutive sentences.   He further asserts the court

erred by failing to award jail credits for time he spent in custody

following his arrest and prior to his sentencing. The State agrees

with defendant's contentions and to a remand for resentencing to

correct the court's errors.

     Imposition of consecutive sentences requires the sentencing

court's consideration of various factors detailed by the Court in

State v. Yarbough, 100 N.J. 627, 643-44 (1985).       It is well-

established that a court imposing a consecutive sentence must

expressly state the reasons for the sentence or risk remand for

resentencing.   State v. Marinez, 370 N.J. Super. 49, 59-60 (App.

Div. 2004); see also State v. Miller, 108 N.J. 112, 122 (1987)

(remanding because the court did not separately state the reasons

for imposing consecutive sentences).

     Here, the court's imposition of consecutive sentences is

untethered to any analysis of the Yarbough factors or any findings

                               22                           A-3030-15T1
supporting the court's decision.       We are therefore constrained to

vacate the court's imposition of the consecutive sentences and

remand for the court to reconsider whether consecutive sentences

are appropriate, and to make the required findings under Yarbough.

Marinez, 370 N.J. Super. at 59-60.

     We also remand for reconsideration of the award of jail

credits.   Defendant was not awarded any jail credits by the court,

but the State agrees the court erred by failing to award jail

credits for the period defendant was in custody following his

arrest and prior to his sentencing date.       See generally State v.

Hernandez, 208 N.J. 24 (2011).    We do not have a sufficient record

before us to determine defendant's entitlement to jail credits,

and remand for the sentencing court to make that determination.

     Defendant's convictions are affirmed.        We vacate the court's

imposition   of   consecutive   sentences   and    remand   for   further

proceedings in accordance with this opinion.          We do not retain

jurisdiction.




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