                                NOT FOR PUBLICATION WITHOUT THE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-3470-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NAEEM LIVINGSTON,

     Defendant-Appellant.
_________________________

                    Submitted February 12, 2020 – Decided February 27, 2020

                    Before Judges Fuentes, Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-02-0456.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew Robert Burroughs, Designated
                    Counsel, on the briefs).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

        Following a trial, a jury convicted defendant of second-degree eluding,

N.J.S.A. 2C:29-2(b); second-degree aggravated assault while eluding, N.J.S.A.

2C:12-1(b)(6); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and

criminal mischief, N.J.S.A. 2C:17-3(a)(1), a disorderly persons offense. After

granting the State's motion to impose an extended term, the trial judge sentenced

defendant to an aggregate term of fourteen years in prison, subject to the eighty-

five percent parole ineligibility provisions of the No Early Release Act, N.J.S.A.

2C:43-7.2. This appeal followed.

        On appeal, defendant's appellate counsel raises the following contentions

on his behalf:

              POINT I

              THE TRIAL COURT ERRED WHEN IT PERMITTED
              A STATE'S WITNESS TO TESTIFY THAT
              DEFENDANT WAS IN THE DNA CODIS
              DATABASE AND THEN FAILED TO SUA SPONTE
              PROVIDE A CURATIVE INSTRUCTION TO THE
              JURY.

              POINT II

              THE TRIAL [COURT] ERRED WHEN IT DENIED
              DEFENDANT'S MOTION TO SUPPRESS HIS
              ALLEGED STATEMENTS MADE TO [E.D.][1]

1
    We use initials to protect the privacy of the witnesses involved in this matter.
                                                                            A-3470-17T1
                                          2
            POINT III

            THE TRIAL COURT ERRED WHEN IT DENIED
            DEFENDANT'S MOTION FOR A CONTINUANCE
            TO ALLOW HIM TO PRESENT CERTAIN
            DEFENSE WITNESSES.

            POINT IV

            THE TRIAL COURT ERRED WHEN IT DENIED
            DEFENDANT'S MOTION TO ENTER A JUDGMENT
            OF ACQUITTAL NOTWITHSTANDING THE
            VERDICT ON COUNT TEN.

            POINT V

            THE TRIAL COURT'S CUMULATIVE ERRORS
            DENIED DEFENDANT A FAIR AND RELIABLE
            TRIAL.

            POINT VI

            DEFENDANT'S SENTENCE          IS   MANIFESTLY
            EXCESSIVE AND UNFAIR.

      In addition, defendant presents the following issues in his pro se

supplemental brief:

            POINT I

            DEFENDANT'S GUARANTEED UNITED STATES
            CONSTITUTIONAL       RIGHTS        TO
            CONFRONTATION, TO DUE PROCESS AND A
            FAIR TRIAL WERE VIOLATED BY THE
            ADMISSION INTO EVIDENCE OF HEARSAY
            STATEMENTS MADE BY SOME OF THE STATE'S
            KEY WITNESSES AT TRIAL AND FURTHER

                                                                 A-3470-17T1
                                   3
FAILING TO ISSUE PROPER CAUTIONARY AND
LIMITING INSTRUCTIONS REGARDING SUCH
TESTIMONY.

     1. [D.D.] and [E.D.]

     2. [J.S.], and [V.C.]

POINT II

THE TRIAL COURT ERRONEOUSLY FAILED TO
SANITIZE   EXTRANEOUS    INFLAMMATORY
DETAILS OF OTHER-CRIME EVIDENCE.

POINT III

THE TRIAL COURT ERRONEOUSLY PERMITTED
PREJUDICIAL TESTIMONY BY A PROSECUTION
KEY WITNESS WHO RELATED TO THE JURY
THAT THERE WAS NO INSURANCE COVERAGE
FOR SIGNIFICANT DAMAGES TO A VEHICLE, IN
VIOLATION OF DEFENDANT'S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL.

POINT IV

THE TRIAL COURT ERRONEOUSLY LIMITED
THE EXAMINATION OF TWO WITNESSES
DEFENSE COUNSEL SOUGHT TO RECALL, IN
VIOLATION OF DEFENDANT'S RIGHTS TO THE
COMPULSORY PROCESS, CONFRONTATION,
DUE PROCESS AND A FAIR TRIAL.

POINT V

THE TRIAL COURT'S ERRONEOUS CHARGE TO
THE JURY FAILED TO INCLUDE REQUIRED
LIMITING    INSTRUCTIONS    VIOLATING

                                           A-3470-17T1
                             4
             DEFENDANT'S RIGHT TO DUE PROCESS AND A
             FAIR TRIAL.

                  1. Other-crimes, wrongs, or act [sic]

                  2. Insurance Liability

      After reviewing the record in light of these contentions, we affirm.

                                        I.

      The parties are fully familiar with the evidence presented at trial.

Therefore, we need only recite the most salient facts related to the issues raised

on appeal.

      While driving a gray Dodge Charger through the streets of Newark on

September 15, 2015, defendant engaged in a running gun battle with the driver

of another car. A witness called the police and, after an officer located the

Charger, defendant ignored the officer's signals to stop. Defendant eventually

crashed the Charger into a garbage truck, and a school bus full of children and

several adults. The driver of the truck suffered whiplash. The officer stopped

to help the children, and observed defendant fleeing the scene.

      The police identified defendant as the driver of the Charger by running

the license plate number and discovering that defendant had recently received a

traffic ticket while driving the car. The officer who pursued defendant was also

able to identify defendant as the driver of the Charger, and defendant's DNA

                                                                          A-3470-17T1
                                        5
was found on the discharged air bag of the car. In addition, defendant's friend,

E.D., testified that defendant persuaded her to rent the Charger for him, and then

to report it as stolen following the crash. E.D. refused to do so.

                                        II.

      We begin by addressing the arguments raised by defendant in the brief

submitted by his appellate counsel. In Point I, defendant asserts that the trial

judge erred by failing to give the jury a curative instruction after a detective

briefly mentioned during direct examination that he obtained a "CODIS[2] hit"

concerning defendant during his investigation. Defendant contends that this

fleeting reference could have caused the jury to "speculate whether defendant's

prior criminal history explained the reason his DNA was in a database

maintained by the FBI." This argument lacks merit.

      Immediately after the detective made this statement, the judge conducted

a sidebar conference and instructed the prosecutor to move on to another topic

because any discussion regarding DNA would "need a limiting instruction" to

explain "why there was a comparison made," and "[w]hat led to the comparison,"

and the judge would need time to draft it. Significantly, the detective did not



2
  "CODIS" is an acronym for the "Combined DNA Index System" maintained
by the FBI.
                                                                          A-3470-17T1
                                        6
explain what the term CODIS meant, and there was no mention that defendant's

DNA was in a database or that he had a criminal record. In addition, the State

never referenced CODIS again during the five-day trial, and instead called a

forensic DNA expert a few days later to discuss the DNA found on the airbag of

the car. Because defendant has failed to demonstrate he was prejudiced by the

mere passing mention of this unexplained term, we reject his contention on this

point.

                                        III.

         In Point II, defendant argues that E.D.'s testimony should have been

suppressed because he was unfairly surprised when the State called her as a

witness. We disagree.

         The State identified E.D. as a witness three months before the trial, and

gave defendant's attorney a memorandum summarizing the police interview with

her. Because defendant had three months to prepare for E.D.'s appearance at

trial, the judge properly denied defendant's motion to exclude her testimony on

the grounds of "unfair surprise."

         Defendant also argues that the prejudicial effect of E.D.'s statements

outweighed their probative value and improperly indicated he had committed

prior bad acts in violation of N.J.R.E. 404(b). Again, we disagree. E.D. was a


                                                                          A-3470-17T1
                                         7
fact witness, who testified she rented the Charger for defendant and he later

asked her to report it as stolen. Her testimony did not suggest a prior bad act by

defendant and, therefore, the factors enumerated in State v. Cofield, 127 N.J.

328 (1991) were simply not applicable.

                                       IV.

      At the end of the State's case, defendant's attorney stated she wished to

subpoena D.W., a witness who had testified before the grand jury. D.W. testified

she was a passenger in the bus and believed that the man who struck them was

"dazed and confused." Because the attorney did not know D.W.'s whereabouts,

the judge ordered that D.W.'s grand jury testimony be read to the jury, and

denied defendant's adjournment request.

      The attorney also asked for an adjournment because she wanted to

subpoena two detectives who had previously testified for the State. The judge

denied this request because the attorney had the opportunity to cross-examine

both witnesses, and had ample time to subpoena them prior to the trial.

      In Point III of his brief, defendant argues that the judge should have

granted his attorney's requests for an adjournment. We review a trial court's

grant or denial of an adjournment under an abuse of discretion standard. State

v. Miller, 216 N.J. 40, 47 (2013). The denial of an adjournment request "will


                                                                          A-3470-17T1
                                        8
not lead to reversal unless it appears from the record that the defendant suffered

manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (quoting

State v. Doro, 103 N.J.L. 88, 93 (1926)).

       Applying this standard, we discern no basis for disturbing the trial judge's

denial of an adjournment. D.W.'s grand jury testimony was presented to the jury

after it became clear no one knew where she could be located. In addition,

defendant had the opportunity to fully question both detectives when they

testified.   Therefore, the judge properly denied defendant's adjournment

requests.

                                        V.

       In Point IV, defendant argues that the judge erred by denying his motion

for a judgment of acquittal on the aggravated assault charge because there was

insufficient evidence in the record to demonstrate that the truck driver sustained

a bodily injury after defendant crashed into the truck. However, defendant did

not move for a judgment of acquittal on this, or any other, basis at the end of the

State's case under Rule 3:18-1, or after the jury returned its verdict pursuant to

Rule 3:18-2. Therefore, defendant may not raise this issue on direct appeal, and

this omission by defense counsel does not fall under the purview of plain error

under Rule 2:10-2 because it is not of "such a nature as to have been clearly


                                                                           A-3470-17T1
                                         9
capable of producing an unjust result."       Therefore, we reject defendant's

contention on this point.

                                       VI.

      In Point V, defendant argues that the cumulative prejudice of the errors he

raises deprived him of a fair trial. Having rejected defendant's argument that

any error occurred during the trial, we also reject his cumulative error argument.

                                      VII.

      Defendant argues in Point VI that his sentence was excessive.            We

disagree.

      Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "are called to the court's

attention" and "explain how they arrived at a particular sentence." State v. Case,

220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid

substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).




                                                                          A-3470-17T1
                                       10
      We are satisfied the judge made findings of fact concerning aggravating

and mitigating factors that were based on competent and reasonably credible

evidence in the record, and applied the correct sentencing guidelines enunciated

in the Code, including the imposition of an extended term sentence.

Accordingly, we discern no basis to second-guess the sentence.

                                     VIII.

      Finally, we have considered the arguments raised in defendant's

supplemental brief, and conclude they are clearly without merit and do not

warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




                                                                        A-3470-17T1
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