                                NOT FOR PUBLICATION WITHOUT THE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-5820-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUSTIN GARCIA a/k/a
EAZE GARCIA,

     Defendant-Appellant.
_______________________

                   Submitted May 27, 2020 – Decided July 9, 2020

                   Before Judges Accurso, Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 17-01-0055.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Ednin D. Martinez, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      Following a bifurcated jury trial, defendant Justin Garcia was convicted

of murder and weapons offenses for the execution-style shooting death of his

friend, Javon Murray; thereafter, the same jury convicted defendant of certai n

persons not to have weapons. After denying defendant's motion for a new trial

and the State's motion for a discretionary extended term, the trial court ordered

the appropriate merger, ran all remaining counts concurrently, and sentenced

defendant to an aggregate term of life imprisonment. Pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, defendant must serve nearly sixty-

four years in prison before he is eligible for parole.

      During the multi-day jury trial, the State presented the testimony of ten

witnesses and introduced in evidence more than one hundred exhibits. But no

one witnessed the shooting; the weapon was not recovered; and no projectiles

or shell casings were found at the scene. Instead, the evidence against defendant

was largely circumstantial: surveillance video footage and defendant's cell

phone records captured his actions during the minutes leading up to the shooting;

cell tower information tracked defendant's activity – and inactivity – in the hours

that followed. And a mutual friend of defendant and Murray heard the gunshot,

saw defendant run away from the scene, and saw another man pick up the gun.

Defendant did not testify at trial.


                                                                           A-5820-17T1
                                         2
Defendant now appeals, arguing:

                           POINT I

     THE PROSECUTOR COMMITTED MISCONDUCT
     IN HER SUMMATION IN MULTIPLE WAYS,
     INCLUDING         VOUCHING     FOR    HER
     EYEWITNESS'S       CREDIBILITY  BASED  ON
     INFORMATION OUTSIDE THE TRIAL RECORD
     AND PROVIDING MISLEADING INFORMATION
     REGARDING         THE    REASONABLE-DOUBT
     STANDARD.
     (Not Raised Below)

                           POINT II

     THE      INSTRUCTION    ON   FLIGHT  AS
     CONSCIOUSNESS        OF    GUILT    WAS
     UNCONSTITUTIONAL BECAUSE IT SHIFTED
     THE BURDEN OF PROOF FROM THE STATE TO
     THE DEFENDANT.
     (Not Raised Below)

                          POINT III

     THE COURT ERRED IN IMPOSING A LIFE
     SENTENCE WITH A 63.75-YEAR PAROLE BAR ON
     [DEFENDANT], FOCUSING LARGELY ON THE
     FACT THAT [DEFENDANT] MAINTAINED HIS
     INNOCENCE IN IMPOSING SUCH A LONG TERM
     UPON A YOUTHFUL OFFENDER WHO HAD
     NEVER PREV[]IOUSLY BEEN SENTENCED TO
     PRISON.

                          POINT IV

     THE COURT ERRED IN IMPOSING FINANCIAL
     PENALTIES ON A MERGED COUNT.

                                                 A-5820-17T1
                                  3
              (Not Raised Below)

     After consideration of the trial testimony and the arguments raised on

appeal, we affirm defendant's convictions, finding insufficient merit in the

contentions raised in point II to warrant extended discussion in this written

opinion, R. 2:11-3(e)(2), beyond the comments that follow. We focus instead

on point I.    We also reject the contentions raised in point III and affirm

defendant's sentence, but remand to correct the judgment of conviction to

remove the fines assessed on the merged conviction.

                                         I.

      Sometime between 2:40 and 2:44 a.m. on July 21, 2016, Murray was shot

from behind by a single bullet. Jersey City police detectives assigned to a nearby

precinct heard the gunshot and within minutes were dispatched to the scene on

Clinton Avenue. By the time they arrived, Murray had died; he was still

clutching money in his hand. Police found two cell phones and a small bottle of

alcohol in Murray's pocket, arguably ruling out robbery as a motive for the

shooting. One of the responding detectives testified the windshield of a blue

Ford Expedition next to Murray's body was struck by a bullet at an upward angle.

According to the medical examiner, a single bullet entered Murray's neck below

his left ear; traveled at a slight upward angle; and exited his cheek near his right


                                                                            A-5820-17T1
                                         4
ear, severing the spinal cord. The entrance wound was situated seven-and-one-

half inches below the top of Murray's head; the exit wound six inches below.

      Around the time of the shooting, a few young adults – including nineteen-

year-old N.C. (Nancy)1 – were in the area. Around 11:30 p.m. on July 20, Nancy

ran into Murray on Clinton Avenue and they spoke for a few minutes about "the

usual stuff" friends discuss. Sometime later, defendant approached Nancy and

told her to contact Murray and "ask him where he was." Nancy did not comply

with defendant's "persistent" demands and walked away when another friend,

Faith Skipper, met up with her. Nancy and Skipper then walked to a fast food

restaurant.

      About twenty minutes later, Nancy and Skipper returned to Clinton

Avenue. Nancy entered the home of her friend, Ruby, 2 while Skipper remained

outside. As Nancy was entering the home, she "saw a person in all black, [a]

short person [3] going through the alleyway between the house [sic]." A few


1
  Because we find the witness's safety outweighs the Judiciary's commitment to
transparency in this opinion, we use initials to protect her privacy and a
pseudonym for ease of reference.
2
  Ruby's last name is not contained in the record; we intend no disrespect by
using her first name.
3
  Nancy testified the man was about her height: four feet, eleven inches tall. A
detective later testified defendant is five feet, one inch tall.
                                                                        A-5820-17T1
                                       5
minutes later, Nancy joined Skipper and two other friends – Kenneth Bernavil

and Talik Smith – who were "chilling" in Bernavil's BMW. The car was parked

across the street from Ruby's house.

      Nancy testified that the group was "just talking and everything and then

after a while [they] heard the shot." Nancy did not see the shooting; when she

heard the gunshot, she turned and saw Murray fall to the ground. Nancy then

saw the "same person, same height . . . run . . . through the alley again" and

"[d]rop the gun." Nancy observed another man pick up the gun and hand it to a

third man before leaving; both men were taller than the gunman. Nancy stayed

behind to check on Murray while Bernavil drove off in the BMW with Smith

and Skipper. Realizing "something was wrong," Nancy reentered Ruby's home.

The next day, Nancy was interviewed by police.

      During her trial testimony, Nancy acknowledged she initially told police

the shooter was "short with dreads" and "had a white shirt with blue pants on,"

which differed from her trial testimony, but was consistent with the surveillance

footage shown to the jury. Nancy selected defendant's photograph from an array

during her interview. Hudson County Prosecutor's Office (HCPO) Detective

Paulo Hernandez, who performed the array, testified Nancy was "scared and

hesitant" when doing so. Nancy also identified defendant in court as the shooter.


                                                                         A-5820-17T1
                                       6
      Defense counsel questioned Nancy about her prior statements to police,

some of which were inconsistent with her trial testimony. As one example, on

cross-examination Nancy said she saw Murray enter a white van with several

other unidentified people before the shooting. But Nancy told police she saw

Murray enter a white van with Jared, her former boyfriend. Nancy also told

police she did not go to the fast food restaurant with Skipper, but stayed behind

with Ruby, Smith, and Bernavil. On redirect examination, Nancy stated she did

not immediately disclose all details to the detectives because she was "scared"

and "didn't know what to do." Although Nancy denied she was frightened while

testifying, her demeanor suggested otherwise. 4

      The State also called Bernavil, who did not see the shooting and thought

the "pop" he heard at that time was caused by a garbage truck as it was driving

down the block. Police stopped Bernavil's car as he was driving away. Bernavil



4
   During their summations, defense counsel and the prosecutor commented on
Nancy's nervous demeanor while testifying. In her oral decision, denying
defendant's motion for a new trial, the court made detailed findings about
Nancy's demeanor: "[Nancy] appeared visibly terrified entering the courtroom
. . . . As she entered the witness stand she whimpered making what the [cou rt
will] call for a lack of a better description, primordial sounds, akin t o a
frightened or wounded animal." The court recalled "hear[ing] [Nancy] breathing
to keep herself calm and composed . . . . Most telling was the way she positioned
herself during the course of her testimony." Nancy "moved to the rear of the
witness stand" and "shield[ed] herself from the view of . . . defendant . . . ."
                                                                         A-5820-17T1
                                       7
allowed police to search the car, where they found a spent shell casing in a

crevice of the front seat. Police detained Bernavil, Smith, and Skipper, but none

of the occupants was charged in connection with Murray's murder. Bernavil,

who was studying criminal justice and "regularly" fired weapons at the shooting

range, told police he had done so earlier that day. The State moved into evidence

a photograph of Bernavil firing guns at the shooting range a few days before the

incident.

      HCPO detectives obtained surveillance footage from several businesses

and residences near the scene of the shooting, which were played for the jury at

trial without narration. One surveillance video depicts a man matching Nancy's

description of defendant – a male with dreadlocks wearing a white shirt, blue

pants, and a baseball cap – entering a liquor store near the crime scene a few

hours before the shooting. Another surveillance video shows a similarly dressed

man, without a baseball cap, crouching down near a car on Clinton Avenue and

placing an object in the waistband of his pants about forty minutes before the

shooting. The same man appears in a third video with another man, believed to

be Murray, walking on Clinton Avenue shortly before the shooting. 5



5
  None of the videos depicted the murder; apparently footage had been erased
from one of the videos before it was turned over to police.
                                                                         A-5820-17T1
                                       8
      HCPO detectives also extracted data from defendant's cell phone, pursuant

to a communications data warrant. The State's telecommunications analysis

expert, HCPO Detective Sean O'Leary, testified that defendant's phone

continuously activated cell towers on Clinton Avenue and Kennedy Boulevard

in the month leading up to the shooting. O'Leary opined defendant never left

the southern area of Jersey City for more than a few hours during that timeframe.

      In the minutes leading up to the murder, defendant exchanged messages

with Geetay Sal, Kishan Sparkman, and someone identified in defendant's phone

only as "Stars." Around the time of the shooting – at 2:20 a.m. and 2:40 a.m. –

defendant's phone activated a cell tower near Clinton Avenue. Shortly after the

shooting – at 2:44:58 a.m. and 2:45:38 – defendant placed two calls to Sal. And

about a half-hour later defendant called Sparkman.

      During the next thirty-four hours, "multiple people" attempted to contact

defendant, but his phone did not text or call anyone. Defendant's phone did not

activate another cell tower until 7 p.m. on July 21. Unlike defendant's cell tower

activations during the month before the murder, that cell tower was located in

the northern end of Jersey City. Defendant's phone continued to activate cell

towers in the northern section of the city.

      On July 22, defendant's phone accessed an online news article regarding


                                                                          A-5820-17T1
                                        9
the homicide, which stated the shooter was at large and police sought the public's

assistance with any leads.      After accessing the article, defendant resumed

outgoing communications with his phone. HCPO Detective Brenton Porter

testified by that time, police were no longer canvassing the area around the crime

scene.

      On July 23, defendant's cell phone resumed activating cell towers near

Clinton Avenue. That afternoon, defendant messaged Dominick Rodriguez,

who lives in Florida, and asked whether he "could come out there for a little

while[.]" Rodriquez asked defendant the reason for his visit. Defendant replied:

"Too much to say on the phone . . . ." When Rodriguez pressed defendant for

more information, defendant said his reason "had nothing to do with money,

wasn't even my beef . . . my boy just got killed three days ago." Defendant told

Rodriguez he would likely leave for Florida the following day. About a half-

hour later, defendant messaged Sal asking, "why people are saying [sic] that

Toya told?" Police identified Toya as Murray's friend or girlfriend. On July 25,

2016, defendant was arrested.

                                       II.

      For the first time on appeal, defendant challenges several comments made

during the prosecutor's summation. Because no objections were made at trial,


                                                                          A-5820-17T1
                                       10
we conduct our review by employing the plain error standard. In that regard,

"[w]e may reverse on the basis of unchallenged error only if the error was

'clearly capable of producing an unjust result.'" State v. Ross, 229 N.J. 389, 407

(2017) (quoting R. 2:10-2).

      In reviewing a claim of prosecutorial misconduct, we consider whether:

defense counsel raised "timely and proper objections"; "the offending remarks

were withdrawn promptly"; "the trial court struck the remarks and provided

appropriate instructions to the jury"; and "the offending remarks were prompted

by comments in the summation of defense counsel." State v. Smith, 212 N.J.

365, 403-04 (2012) (internal citations and quotation marks omitted).

"Generally, 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).

      Moreover, New Jersey courts have long recognized prosecutors "are

afforded considerable leeway in making opening statements and summations."

State v. Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically


                                                                          A-5820-17T1
                                       11
and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).

      Nonetheless, "the primary duty of a prosecutor is not to obtain convictions

but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty

is to prove the State's case based on the evidence and not to play on the passions

of the jury or trigger emotional flashpoints, deflecting attention from the hard

facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88,

96 (2006). "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

Williams, 113 N.J. at 447-48).

      Even if the prosecutor exceeds the bounds of proper conduct, that finding

does not end our 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 defendant's

fundamental right to have a jury fairly evaluate the merits of his defense."


                                                                            A-5820-17T1
                                        12
Timmendequas, 161 N.J. at 575 (citation omitted); see also State v. Nelson, 173

N.J. 417, 460 (2002).

      Against that legal backdrop, we turn to defendant's overlapping claims

that the prosecutor impermissibly vouched for Nancy's credibility and bolstered

her testimony with evidence outside the trial record; denigrated defense counsel

by stating he "spun kind of a tale" about the killer's identity; and

mischaracterized the "reasonable doubt" standard by referring to defense

counsel's theories as "imaginary doubt." Defendant argues those cumulative

errors denied him a fair trial. Having reviewed the prosecutor's summation

"within the context of the trial as a whole," State v. Feaster, 156 N.J. 1, 64

(1998), we reject defendant's belated contentions.

      We begin by summarizing defendant's arguments to give context to the

prosecutor's closing remarks at issue. Defendant's trial strategy focused on

impeaching the credibility of Nancy and poking holes in the State's

circumstantial evidence that tied him to the shooting.        During summation,

defense counsel argued, "[Nancy] never said that she saw [defendant] fire a

gun." Counsel then noted the State will ask the jury "to draw certain inferences

from certain facts that [Nancy] did say and try to bring [it] to a conclusion saying

that [defendant] must have been the one that did this."


                                                                            A-5820-17T1
                                        13
       In seeking to discredit Nancy, defense counsel cited portions of her

testimony that differed from her prior statements to police.         For example,

counsel argued: "Clearly, she lied" when Nancy said she did not know the

occupants of the white van. He also cast doubt on Nancy's statement that she

saw defendant drop the gun and another man pick it up and hand it to a third

man. Counsel reviewed with the jurors the trial court's ensuing "false in one,

false in all" charge in relation to Nancy's testimony. See Model Jury Charges

(Criminal), "False in One – False in All" (rev. Jan. 13, 2013) (instructing jurors

that they may believe all or some of a witness's testimony if they find the witness

"willfully or knowingly testified falsely to any material facts in the case, with

intent to deceive [them]"). Counsel said Nancy "seemed to be very nervous"

when she testified, arguing people "get nervous because they're not supposed to

be lying . . . ."

       Defense counsel also suggested arguments the prosecutor would make

during her summation concerning the shooter's height:

                    The prosecutor is going to argue to you, I believe,
              too many points that they say is [sic] corroboration.
              They're [sic] going to say that the victim was 5'9, that
              [defendant] is 5'2 and that the angle of the bullet path
              was slightly upward, so it must have been a short person
              who shot [Murray].

       And, defense counsel also suggested someone else, including Bernavil,

                                                                           A-5820-17T1
                                        14
could have killed Murray. Toward the end of his summation, counsel showed

the jury the photograph of Bernavil firing a rifle at the shooting range, with two

other handguns "on the board, right in front of where he's shooting . . . ."

Counsel then asked the jury: "What does that mean? Does that mean that

[Bernavil] did it? I don't know . . . we don't know. There's not enough evidence

before you to make a decision about that."

      Defendant now claims the prosecutor impermissibly vouched for Nancy's

credibility, and referred to evidence not presented at trial to bolster Nancy's

credibility. Defendant notes the following comments as indicia of vouching and

bolstering by the prosecutor:

                   [Nancy] was so terrified she didn't even want to
            walk in the courtroom. She was terrified out here. And,
            we're supposed to believe that she sat up here with the
            intent to look all of you in the face and just lie about
            everything. And, if she was going to lie, . . . what was
            the reason for it. Because that's another factor for you
            to consider . . . bias, whether there's a motive to lie,
            whether she has an interest in the outcome of the case.

                   She doesn't . . . she has no motive to lie. And, if
            she did, if she did have a reason to lie, if she did have a
            reason for whatever reason to put this on . . . defendant,
            why wouldn't she say, I saw him pull the trigger? She
            didn't say it because she didn't see it and because she
            was telling you the truth.

                  ....


                                                                          A-5820-17T1
                                       15
                   She was terrified to initially identify him. And,
            she was terrified in here to identify him. [Nancy] is a
            young woman who we can see just wanted to do the
            right thing. That's all she wanted to do.

      The prosecutor's comments followed defense counsel's skillful attempt to

discredit Nancy's testimony and question the reason for her demeanor by arguing

inconsistencies in Nancy's testimony and her "nervous" responses were indicia

of her untruthfulness. The prosecutor neither expressed a personal belief or

opinion as to the truthfulness of Nancy's testimony, see State v. Staples, 263

N.J. Super. 602, 605 (App. Div. 1993), nor attempted to vouch for her

credibility, State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004). Rather,

taken in context, the comments were made in response to defendant's argument.

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). And, the prosecutor's comments were based on the

evidence in the trial record. See Blakney, 189 N.J. at 96. Not only did the

detective who conducted the array testify that Nancy was "scared" when she

identified defendant as the shooter at the police station, but also as noted above,

the court detailed Nancy's "visibly terrified" demeanor in court.

      Defendant cites other portions of the prosecutor's summation to further

support his argument that the prosecutor bolstered Nancy's testimony with facts

                                                                           A-5820-17T1
                                       16
that were not in evidence.         Defendant takes issue with the prosecutor's

"evaluation of the crime scene":

                     So, the entrance wound . . . was 4'10 and a half
            inches off the ground at that slightly upward trajectory
            . . . . [D]efendant was 5'1 at the time of the murder. So,
            think about this. Even if you've never shot a gun
            before, you know what the obvious stance is when
            you're about to shoot someone, right?

                  You go to eye level. You don't go from the top
            of your head. You go from eye level because you want
            to see your target. What do you think the eye level is
            from the top of [defendant]'s head? Two to three
            inches? 5'1 minus two to three inches is 4'10 and a half
            inches off the ground.

                  Do you think it's just a coincidence that the
            entrance wound to the victim perfectly matches up with
            [defendant]'s eye level[?]

      The prosecutor's comments were based upon the "evidence revealed

during the trial and reasonable inferences . . . drawn from that evidence." Smith,

167 N.J. at 178. Although the medical examiner testified he could not state the

shooter's height "within a reasonable degree of medical certainty," he stated the

victim's height, and Porter testified as to defendant's height.      The medical

examiner also detailed his measurements of the entrance and exit wounds vis-à-

vis the crown of Murray's head, and the trajectory of the bullet as it entered the

victim's skull. Considering the prosecutor's statements in the context of the trial


                                                                           A-5820-17T1
                                        17
as a whole, Feaster, 156 N.J. at 64, a reasonable jury could infer from the

evidence adduced that defendant matched the approximate height of the

shooter.6

      Moreover, "[a] prosecutor is permitted to respond to an argument raised

by the defense so long as it does not constitute a foray beyond the evidence

adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001).

As stated, defense counsel expressly fronted the disparity in heights between

defendant and Murray and the angle of the bullet's trajectory, commenting that

the prosecutor will argue the shooter was shorter than the victim. Counsel then

asked the jury, "I don't know, what do you think about that argument? I don't

think very much of it." We discern nothing improper or factually incorrect about

the prosecutor's responsive comments. See Frost, 158 N.J. at 85.

      Nor are we persuaded by defendant's assertions that the prosecutor

improperly speculated about defendant's ability to change his clothes, and the

meaning of a text message sent after the shooting. At issue are the following

remarks:



6
   To support his argument on appeal that "there is no one perfect shooting
stance," defendant cites an article written by a retired detective that is not
contained in the trial record. Accordingly, it is inappropriate for our
consideration on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009).
                                                                        A-5820-17T1
                                      18
                   You saw from the liquor store video that . . .
            defendant was wearing a baseball cap. In the later
            videos, he's not wearing a baseball cap. We know from
            the phone records, he hasn't left the area of Clinton
            Avenue. What does that suggest? He's got a place
            where he can go to stash clothes, to change clothes in
            that area. He's there every day.

                    So, it's not a stretch. It's not an imaginary doubt.
            It's reasonable to conclude that he had a place where he
            could change his clothes, to throw on a dark hoodie,
            especially when there's [sic] thirty-five minutes
            between when he arms himself and when the victim is
            standing there.

                  ....

            [Defendant] reaches out to [a friend] and he says, "Yo,
            why are people saying Toya told?" Do you remember
            who Toya was? Detective Porter testified Toya is
            Alexis Brown . . . the girlfriend or friend of the victim.

                  ....

                   Why would you ask the question if you didn't do
            it? Why would you care? Because he did do it.
            Because he found out somebody told and he's asking
            . . . why are people saying Toya told.

            [(Emphasis added).]

      Again, the prosecutor's statements were reasonably-based inferences from

the evidence adduced at trial. As to the garment-changing comments, the State

presented cell site data, indicating defendant had been present continuously in

the vicinity of the shooting for one month. The State also presented Nancy's

                                                                           A-5820-17T1
                                       19
conflicting accounts regarding defendant's clothing at and near the time of the

crime. In an attempt to explain the inconsistencies in Nancy's statements, the

prosecutor asked the jury to infer from those facts that defendant changed his

clothing. And, regarding defendant's inquiring text message, the prosecutor

questioned defendant's motive, suggesting the message was indicative of his

guilt. The jury reasonably could infer from the text message that defendant was

concerned "Toya" was disclosing information about the crime to others. In our

view, the prosecutor's remarks did not exceed the bounds of fair comment on the

evidence. See Smith, 167 N.J. at 178.

      Lastly, we turn to defendant's contentions that the prosecutor's references

to imaginary doubt mischaracterized the reasonable doubt standard, and that her

comment, "as to the killer's identity, defense counsel has spun kind of a tale for

you, right[,]" denigrated defense counsel. Defendant also cites the following

comments to support his argument:

            Because there's imaginary doubt, which you can reject.
            And, then there's reasonable evidence. Defense counsel
            wants you to think that all of this evidence is unreliable
            or if it is reliable, it's all merely a coincidence . . .
            evidence like [Nancy's] testimony.

                    He wants you to think it's all unreliable because
            it all incriminates his client. Or he wants you to think
            it's all a coincidence because he wants you to look the
            other way. He wants you to look away from all of this

                                                                          A-5820-17T1
                                       20
            evidence because it all leads to only one person as the
            murderer, . . . defendant.

                  ....

                  Direct evidence like somebody's eyewitness
            testimony, that gives us a snapshot in time. But, the
            circumstantial evidence, that gives us the whole story.
            Can you ignore all of these things or call them all just
            coincidence, and still have them be reasonable?

                   That's the difference between imaginary doubt
            and reasonable doubt. Anything is possible . . ., but is
            it reasonable? Can you ignore these things and still
            have it be reasonable?           If it's imaginary or
            unreasonable, you can reject it. But, follow the
            evidence . . . and find this man guilty.

      "It is well settled that prosecutors are not permitted to cast unjustified

aspersions on the defense or defense counsel." State v. Rodriguez, 365 N.J.

Super. 38, 50 (App. Div. 2003); see also Frost, 158 N.J. at 86. We have long

recognized prosecutors may not "characterize the defense attorney and the

defense as outrageous, remarkable, absolutely preposterous and absolutely

outrageous." State v. Acker, 265 N.J. Super. 351, 356 (App. Div. 1993); see

also State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008).

      In context, the prosecutor's suggestion that counsel "spun kind of a tale,"

while perhaps better avoided, was not egregious or unfair and did not have the

capacity to bring about a result the jury might not otherwise have reached. See


                                                                         A-5820-17T1
                                      21
Timmendequas, 161 N.J. at 589-90. The prosecutor challenged the viability of

defendant's case theory in response to counsel's assertions that some unspecified

person could have killed Murray. To the extent that fleeting remark could be

viewed as improper, we conclude it does not rise to plain error. See R. 2:10-2.

      Turning to the prosecutor's "imaginary doubt" references, we note

defendant's recitation of the prosecutor's comments in this regard omitted her

introduction: "But, you have to ask yourselves this, how much of what defense

counsel said to you is supported by the evidence." The comments should be

contextualized amid the prosecutor's discussion of Nancy's credibility and the

circumstantial evidence that underscored defendant's guilt in response to

counsel's arguments, which the prosecutor contended found no support in the

record. We discern no impropriety in that argument.

      The use of the term "imaginary doubt" in those contexts, however, should

have been avoided because it could have been construed as the prosecutor's

instruction to the jury on the law. Nonetheless, we are persuaded any prejudice

resulting from those comments was sufficiently mitigated by the trial court's

thorough instruction on reasonable doubt, which tracked the model jury charge

verbatim. See Model Jury Charges (Criminal), "Reasonable Doubt" (rev. Feb.




                                                                         A-5820-17T1
                                      22
24, 1997).7 The court also properly instructed the jury it was the sole judge of

witness credibility and that counsels' arguments or comments are not evidence.

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

296 N.J. Super. 573, 580 (App. Div. 1997). Accordingly, the prosecutor's

remarks were not sufficiently egregious to find defendant was deprived of a fair

trial. Frost, 158 N.J. at 83.

      Finally, we reject defendant's contention that the cumulative effect of the

errors committed during his trial warrants reversal. Defendant has failed to

demonstrate any error or pattern of errors, rising to the level, either singly or

cumulatively, that denied him a fair trial. "A defendant is entitled to a fair trial

but not a perfect one." R.B., 183 N.J. at 334 (internal quotation marks omitted).

                                        III.

      Little need be said about defendant's newly-minted challenges to the trial

court's flight instruction.     During the charge conference, defense counsel



7
  Although the present model jury charge on reasonable doubt does not reference
"imaginary doubt," its predecessor provided, in pertinent part: "Reasonable
doubt is not a mere possible or imaginary doubt, because everything relating to
human affairs is open to some possible or imaginary doubt." Model Jury
Charges (Criminal), "Reasonable Doubt" (rev. May 23, 1994); see also State v.
Medina, 147 N.J. 43, 61 (1996) (adopting the present definition of reasonable
doubt and "direct[ing] trial courts not to deviate from [that] definition").
Prosecutors likewise should not deviate from that definition.
                                                                            A-5820-17T1
                                        23
opposed the State's application to charge flight and sought a mere presence

instruction. The court considered the arguments of counsel; reserved decision;

and thereafter ruled both charges would be included in its final jury instructions.

The court's flight charge as given was closely tailored to the model jury charge,

omitting only the following language: "There has been some testimony in the

case from which you may infer that the defendant fled shortly after the alleged

commission of the crime.          The defense has suggested the following

explanation[.]" See Model Jury Charges (Criminal), "Flight" (rev. May 10,

2010). The court omitted that text based on its "conscious decision not to

indicate or provide potential facts . . . for the jur[ors] to consider" because that

could "indicate undue weight to those facts. And, in the end, it's their decision

to consider what facts to find and how much weight to give them." Defendant

did not object to the instruction as given.

      Defendant now claims the flight instruction improperly placed the burden

on him "to dis-prove that he left in order to avoid arrest, when it should have

placed the burden on the State to prove that he left to avoid arrest." Defendant

further contends the flight instruction should not have preceded the substantive

charges. Defendant cites no authority to support either contention, and we find




                                                                            A-5820-17T1
                                        24
insufficient merit in either claim to warrant discussion in this opinion, R. 2:11-

3(e)(2), beyond the following brief comments.

      The trial court's flight charge in this case was nearly a verbatim recitation

of the model jury charge and consistent with New Jersey precedent. See State

v. Mann, 132 N.J. 410, 421 (1993). We have repeatedly held a jury charge that

tracks the language of the governing law and is consistent with the applicable

model jury charge is not plainly erroneous. See Rodriguez, 365 N.J. Super. at

53-54. Nor do we find any error in the placement of the flight charge within the

jury instructions. The charge was issued immediately after the mere presence

charge and before the substantive charges. We therefore discern no error let

alone plain error in the substantive charge or its placement within the overall

instructions. See R. 1:7-2; R. 2:10-2; see also State v. Funderburg, 225 N.J. 66,

79 (2016).

                                       IV.

      The crux of defendant's sentencing argument is the trial court's assignment

of weight to the aggravating factors it found applicable. Defendant primarily

claims the court improperly considered and assigned great weight to his lack of

remorse and refusal to accept responsibility. Defendant also contends the court

failed to consider his "relative youth" and lack of prior confinement in a state


                                                                           A-5820-17T1
                                       25
prison facility in imposing sentence beyond the thirty-year mandatory-minimum

prison term.    See N.J.S.A. 2C:11-3(b)(1).        Defendant's contentions are

unavailing.

      After merging the possession of an unlawful purpose conviction with the

murder conviction, the court sentenced defendant to life imprisonment with an

eighty-five percent period of parole ineligibility under NERA, and concurrent

terms of ten years with five years of parole ineligibility under the Graves Act,

N.J.S.A. 2C:43-6(c), for the unlawful possession of a weapon and certain

persons not to have weapons convictions.        The court found and assigned

"substantial weight" to aggravating factor three (the risk defendant will commit

another offense), "heav[]y weigh[t]" to aggravating factor six (the extent of

defendant's criminal history), and the "most weight" to aggravating factor nine

(general and specific deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and (9). Finding

no mitigating factors, N.J.S.A. 2C:44-1(b), the court was "clearly convinced that

the aggravating factors substantially outweigh[ed] the mitigating factors."

      In finding and assessing the aggravating factors, the trial court thoroughly

reviewed defendant's personal history and criminal background, which included

six prior indictable convictions, and multiple violations of probation.

Recognizing defendant was twenty-seven years old on the day of sentencing, the


                                                                          A-5820-17T1
                                      26
court noted defendant "has spent his entire . . . adult life involved with the

criminal justice system."     The court found defendant had been afforded

"numerous opportunities to rehabilitate and to make a good-faith effort to

change and become a contributing member of society[,]" but his "unlawful

conduct [ha]s only increased in frequency and gravity since his initial conviction

as an adult."

      In its assessment of aggravating factor three, the court assigned "great

weight" to defendant's "apparent lack of remorse" toward Murray and his family

"along with defendant's persistent refusal to accept responsibility for his actions

as noted in his pre-sentence interview." The court elaborated:

                  Given the circumstances of defendant's continued
            contacts with the criminal justice system, with the
            calculated and violent execution-like manner in which
            this jury found that the defendant murdered Javon
            Murray and . . . defendant's (indiscernible) position
            while blaming others such as his attorney, th[e] court
            finds . . . aggravating factor three and gives it
            substantial weight.

      Sentencing determinations are reviewed on appeal with a highly

deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "The appellate

court must affirm the sentence unless (1) the sentencing guidelines were

violated; (2) the aggravating and mitigating factors found by the sentenci ng

court were not based upon competent and credible evidence in the record; or (3)

                                                                           A-5820-17T1
                                       27
'the application of the guidelines to the facts of [the] case makes the sentence

clearly unreasonable so as to shock the judicial conscience.'" Ibid. (alteration

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Once the trial

court has balanced the aggravating and mitigating factors set forth in N.J.S.A.

2C:44-1(a) and (b), it "may impose a term within the permissible range for the

offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case,

220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their

judgment for that of the sentencing court, provided that the "aggravating and

mitigating factors are identified [and] supported by competent, credible

evidence in the record").

      We have previously warned against the use of a defendant's refusal to

admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514, 540

(App. Div. 1985) (noting our "view that a defendant's refusal to acknowledge

guilt following a conviction is generally not a germane factor in the sentencing

decision"). We have, however, found a "[d]efendant's consistent denial of

involvement and . . . lack of remorse" supported a finding of aggravating factor

nine, N.J.S.A. 2C:44-1(a)(9), and "indicate[d] that a prison sentence [wa]s

necessary to deter [the] defendant from similar conduct in the future . . . ." State

v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). And, in State v. Carey,


                                                                            A-5820-17T1
                                        28
our Supreme Court recognized a sentencing court may consider the defendant's

failure to take responsibility in support of aggravating factor three. 168 N.J.

413, 426-27 (2001) (upholding the court's finding of aggravating factor three

where the defendant "expresse[d] remorse, but [did] not directly accept

responsibility for the [car] crash or admit that he ha[d] a problem of drinking

and driving").

      Our review of the record leads us to conclude the aggravating factors

found were based on competent credible evidence in the record.            Indeed,

defendant does not challenge those findings on appeal. At first blush, the court's

assignment of great weight to defendant's lack of remorse and refusal to accept

responsibility gives us pause. However, in its consideration of aggravating

factor three, the court properly considered defendant's recidivism, violations of

probation, and that the present offense was committed while defendant was

released on bail. Accordingly, the court's remarks were not the sole bases for

its application of aggravating factor three. Moreover, the court assigned the

"most weight" to aggravating factor nine and did not consider defendant's lack

of remorse or refusal to accept responsibility in that regard. As the court

correctly determined, defendant's prior probationary and jail terms have not

deterred his criminal activity.


                                                                          A-5820-17T1
                                       29
      Defendant's remaining sentencing contentions lack sufficient merit to

warrant discussion in this written opinion. R. 2:11-3(e)(2). We simply note

defendant's reliance on the neuroscience underscoring Graham v. Florida, 560

U.S. 48 (2010), and State v. Zuber, 227 N.J. 422 (2017), is misplaced. In

Graham and Zuber, the Courts considered the impact of life sentences on

juvenile offenders.   Graham, 560 U.S. at 117; Zuber, 227 N.J. at 452-53.

Conversely, defendant was twenty-five years old when he committed the murder

and twenty-seven when he was sentenced to life imprisonment. As such, the

principles espoused in Graham and Zuber are inapplicable here.

      Our review of the record leads us to conclude the sentencing guidelines

were followed, the aggravating and mitigating factors were based on competent

credible evidence in the record, and the application of the guidelines to the

"execution-like" murder resulted in a sentence that was reasonable under the

facts of the case and do not "shock the judicial conscience." Roth, 95 N.J. at

364-65. Given our deferential standard of review, we see no reason to second

guess the trial court's sentence. Fuentes, 217 N.J. at 70.

                                      ***

     In sum, we affirm defendant's convictions and sentence. But we direct the

trial court to amend the judgment of conviction to remove the fines assessed on


                                                                       A-5820-17T1
                                       30
the possession of a weapon for an unlawful purpose conviction, which the court

correctly merged with the murder conviction.       The amended judgment of

conviction shall also remove the merged count from the list of final charges.

     Affirmed but remanded to correct the judgment of conviction.




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                                      31
