                                NOT FOR PUBLICATION WITHOUT THE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-1614-15T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

TYLEEK A. LEWIS,

     Defendant-Appellant.
_______________________

                   Submitted December 5, 2018 - Decided January 28, 2019
                   Remanded by the Supreme Court June 23, 2020
                   Resubmitted June 23, 2020 - Decided July 28, 2020

                   Before Judges Koblitz, Ostrer and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 14-08-
                   0877.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michael James Confusione, Designated
                   Counsel, on the brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the briefs).
             Appellant filed a pro se supplemental brief.

PER CURIAM

       Our Supreme Court in State v. Greene, ___ N.J. ___, ___ (2020) remanded

this matter on June 23, 2020 for our consideration of the following five issues

raised by defendant Tyleek A. Lewis through counsel:

             POINT II: THE PROSECUTOR WENT BEYOND
             FAIR COMMENT ON THE EVIDENCE IN
             SUMMATION.

             POINT III: THE TRIAL COURT ERRED IN
             ADMITTING THE WAWA VIDEOTAPE INTO
             EVIDENCE.

             POINT IV:  THE TRIAL COURT INFRINGED
             DEFENDANT'S RIGHT TO DISCOVERY AND
             CROSS-EXAMINATION.

             POINT V:  THE TRIAL COURT ERRED IN
             DENYING A POST-VERDICT INTERVIEW OF A
             COMPROMISED JUROR.

             POINT VI:   DEFENDANT'S               SENTENCE     IS
             IMPROPER AND EXCESSIVE.

       We also consider the single issue defendant argues in his pro se

supplemental brief: 1

             POINT I: IT WAS REVERSIBLE ERROR FOR THE
             JUDGE TO FAIL TO INSTRUCT THE JURY ON
             ACCOMPLICE LIABILITY, ESPECIALLY IN

1
    We corrected minor typographical errors.
                                                                       A-1614-15T1
                                        2
              LIGHT OF THE JURY'S QUESTION SIGNALING
              ITS CONFUSION.

      We incorporate the facts as set forth by the Supreme Court. Greene, ___

N.J. at ___ (slip op. at 5-8). Defendant was convicted, after judicial merger, of

one count of felony murder by participating in the murder of Edward Baker

during the commission of a robbery and burglary, N.J.S.A. 2C:11-3(a)(3). He

was sentenced simultaneously with his co-defendant Carey R. Greene to thirty-

five years in prison with a thirty-year period of parole ineligibility subject to the

requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We

now affirm defendant's conviction and remand only to correct the judgment of

conviction.

                           I. Prosecutor's Summation.

      Defendant argues that the assistant prosecutor's repeated statements to the

jury that a trial is a "search for the truth" deprived him of a fair trial. Defendant

also argues that the assistant prosecutor's incorrect statement during summation

that a pendant had been taken from the victim without an immediate curative

instruction constitutes reversible error. We disagree.

      "The State's opening statement should be 'limited to the "facts [the

prosecutor] intends in good faith to prove by competent evidence." '" Greene,

___ N.J. at ___ (slip op. at 21) (alteration in original) (quoting State v.

                                                                            A-1614-15T1
                                         3
Wakefield, 190 N.J. 397, 442 (2007)). The opening statement is "intended to

serve as 'an outline' or a 'roadmap' or a 'general recital' of the case the State

intends to present." Ibid. (quoting State v. Walden, 370 N.J. Super. 549, 558

(App. Div. 2004)). "[T]he court must patrol the boundaries of propriety [of a

prosecutor's opening statement] to ensure that [a] defendant's right to a fair trial

is not compromised." Id. at ___ (slip op. at 22) (second and third alterations in

original) (quoting State v. Timmendequas, 161 N.J. 515, 577 (1999)).

      During summation, a prosecutor is limited to "commenting upon the

evidence and the reasonable inferences to be drawn therefrom," however, the

presentation is allowed to be forceful and vigorous. State v. Pindale, 249 N.J.

Super. 266, 285 (App. Div. 1991). A prosecutor is given leeway, but comments

must be reasonably related to the evidence adduced at trial. State v. Frost, 158

N.J. 76, 82 (1999). A prosecutor can make inferences based upon the evidence

but cannot go beyond the facts of the case. State v. R.B., 183 N.J. 308, 330

(2005). "[A] determination as to whether a prosecutor's comments had the

capacity to deprive defendant of a fair trial must be made 'within the context of

the trial as a whole.'" State v. McNeil-Thomas, 238 N.J. 256, 276 (2019)

(quoting State v. Feaster, 156 N.J. 1, 64 (1998)).

      During opening statements, the prosecutor stated:


                                                                           A-1614-15T1
                                         4
            And I submit to you, ladies and gentlemen, that through
            the expanse of this evidence that's going to be presented
            to you over the course of the next few weeks, you are
            going to also see something else and it's what I call the
            thread of truth. You're going to see the thread of truth
            through each piece of evidence and each witness that
            you hear from. And this is very important because it
            has been said that a trial, the reason why we're here, is
            a search for the truth.

      Defense counsel objected, citing to State v. Love, 245 N.J. Super. 195,

198-99 (App. Div. 1991) (analyzing whether the jury charge violated defendant's

due process rights because it diluted the State's burden of proof), but the

objection was overruled by the court. During the remainder of his opening

statement, the prosecutor referred to "truth" nine more times. At the conclusion

of his opening statement, he stated: "I just ask you, ladies and gentlemen, listen

carefully, search for that thread of truth throughout the entire State's case."

      During summation, the assistant prosecutor again referred to "truth":

            The reason why we are here, and I told you this in my
            opening, this trial is a search, and it's a search for the
            truth. And if you recall during my opening, I called it
            the thread of truth. And that's what I want to talk to you
            about. What is the truth?

            Because ultimately, you as triers of these facts have to,
            have to make a decision on what is the truth. How do
            we get to that truth? How do we know what the truth
            is?



                                                                           A-1614-15T1
                                         5
      He said "truth" many more times in his summation. However, he also

stated in summation: "And basically what you need to know before we look for

this search for the truth of what happened on that night, you need to know that

. . . the State is required to prove each of these elements beyond a reasonable

doubt."

      After the prosecutor's summation, defense counsel renewed the objection

to the use of the word "truth," arguing it lessened the State's burden. He

requested a curative instruction. The trial court ruled that because the State

explained that it was required to prove beyond a reasonable doubt all elements

of the crimes, a curative instruction was not needed. It held that the assistant

prosecutor's reference to "truth" did not dilute the State's burden and that the

jury would be given full instructions.

      Pursuant to the model jury charges, the court instructed the jury that the

State must prove each element of every crime charged beyond a reasonable

doubt. See Model Jury Charges (Criminal), "Felony Murder – Non-Slayer

Participant (N.J.S.A. 2C:11-3(a)(3))" (rev. Mar. 22, 2004); Model Jury Charges

(Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-1)" (rev. May 10,

2010); Model Jury Charges (Criminal), "Burglary in the Second Degree

(N.J.S.A. 2C:18-2(b))" (rev. Apr. 12, 2010).


                                                                        A-1614-15T1
                                         6
      In cases where there have been references to the "truth" by the trial court,

our Supreme Court has not reversed. For example, in State v. Purnell, 126 N.J.

518, 544 (1992), the trial court advised the jury to "search for the truth" as part

of the jury instructions. It also informed the jury of the State's burden to prove

its case beyond a reasonable doubt. Ibid. While the Court was concerned

regarding the court's use of the term "search for truth" because it could dilute

the State's burden of proof, the Court affirmed because the jury was correctly

instructed about the presumption of innocence and the State's burden of proof.

Id. at 545.

      In Love, we rejected an argument by the defendant that the court's

comment during jury instructions that it was tasked with ascertaining "the truth

on the evidence" was improper. Love, 245 N.J. Super. at 198-99; see also State

v. Medina, 147 N.J. 43, 54 (1996) (rejecting defendant's argument that the

State's burden was diluted because the court instructed the jury to "search for

truth"). In State v. Hunt, 115 N.J. 330, 372-73 (1989), the Court rejected the

defendant's argument, similar to the argument made here, that the State's burden

was diluted because the prosecutor told the jury that it had a duty to determine

"where the truth rests." Although the prosecutor repeated the "search for truth"




                                                                          A-1614-15T1
                                        7
phrase many times, the trial court corrected any misunderstanding by clearly

instructing the jury about the burden of proof.

      Defendant also argues that the prosecutor misled the jury during

summation by claiming that a pendant had been taken from the victim, and that

the court failed to issue a timely curative instruction.

      During summation the assistant prosecutor stated:

            Let's talk about this Jesus pendant. What's the
            significance of that? In and of itself, not really too
            much significance. But it's the broken clasp, it's the
            broken clasp that has the significance here. Doesn't it?
            Isn't that indicative of some sort of struggle?

            [Counsel for defendant] tried to bring out on his cross-
            examination well, maybe it was the EMS guys cutting,
            cutting open [the victim's] shirt. But the chain, where's
            the chain that that pendant hung on? I'll tell you where
            it's not, it's not in the house. It's gone.

      Defendant's counsel requested a curative instruction and asked that the

instruction be provided on the same day that the false statement was made. The

court provided the instruction the next time the jury convened, two days later.

      During the jury charge, the court gave a remedial instruction:

            Further, the prosecutor during summations referenced
            the Jesus pendant and clasp found at the crime scene.
            The prosecutor asked "where's the chain" and further
            stated that the chain was "not in the house." Any
            inference that the chain was stolen by the defendants
            must be ignored by you in your deliberations. The

                                                                        A-1614-15T1
                                         8
               chain was recovered from the body at the autopsy and
               is in the possession of the prosecutor's office.

         During summation, a prosecutor should not make inaccurate legal or

factual assertions and is duty-bound to confine remarks to the facts adduced at

trial.    Frost, 158 N.J. at 85.      When evaluating a claim of prosecutorial

misconduct, a reviewing court should first determine if the prosecutor

committed misconduct and then evaluate whether the misconduct requires a new

trial. Wakefield, 190 N.J. at 446.

         The assistant prosecutor misstated a fact when he said that the chain was

missing. The comment was inaccurate, but did not have the effect of diverting

the jury's attention from the facts before it or inflaming the jury. The court

provided a complete and effective curative instruction regarding the prosecutor's

misstatement. The court clearly informed the jury that the chain was in fact

recovered from the victim's body and was in the possession of the prosecutor's

office. We assume that jurors follow instructions. State v. Miller, 205 N.J. 109,

126 (2011).

         The assistant prosecutor made the incorrect statement at the end of the day

on Wednesday and the court provided the curative instruction the next time that

the court met with the jury, on Friday. It is true that curative instructions should



                                                                           A-1614-15T1
                                          9
be provided "without delay," State v. Vallejo, 198 N.J. 122, 134 (2009), but we

do not view the instruction as unduly delayed.

      Prosecutorial misconduct "does not warrant reversal unless it is 'so

egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211

N.J. 394, 409 (2012). Reversible error occurs when a prosecutor makes a

comment so prejudicial that it deprives a defendant of his or her right to a fair

trial. Id. at 437. The inaccurate statement here was not egregious. "A defendant

is entitled to a fair trial, but not a perfect one." Wakefield, 190 N.J. at 537

(quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)).

                                 II. Videotape.

      Defendant contends the court erred when it admitted the Wawa

surveillance videotape into evidence. He claims the State failed to demonstrate

that the date and time stamp on the video were accurate and, also, failed to

explain who provided the video to the police and when.

      The court conducted an authentication hearing outside the presence of the

jury. Heather Hearn, a senior security advisor at Wawa, testified that in 2010

Wawa recorded security footage on a VCR. At that time, the cameras and

equipment included a date stamp on the video.          The store manager was

responsible for ensuring the date stamp was accurate and, aside from the store


                                                                        A-1614-15T1
                                      10
manager, no other employees could alter the date stamp. Hearn recognized the

video in the present case as a Wawa security video based on the color labels and

the information on the video.

      Zachary Knauss, a shift manager at Wawa, testified that he worked at the

Westampton store in July 2010.        He provided the surveillance video to

Westampton Township Police Officer Andrew Brewer at 3:39 a.m. on July 17,

2010. Brewer testified that he obtained the July 16, 2010 surveillance video

from the Wawa and turned it over to Detective Sergeant Roger Rogers at

headquarters.

      The tape received from Brewer was placed into the Westampton Township

evidence depository. Only Rogers and one other detective had access to it. On

July 27, 2010, Rogers took the video from the evidence locker and gave it to

Patrolman Thomas Polite at police headquarters. Polite took the video and

secured it in his office. Polite testified that he reviewed the Wawa tape looking

for the hat and shoe recovered at the crime scene. He located individuals in the

Wawa video wearing those items.

      Detective Timothy Horne, an evidence management custodian with the

Burlington County Prosecutor's Office, testified that his office received a video

tape from a Westampton police department detective. The video had a sticker


                                                                        A-1614-15T1
                                      11
on it, stating it was a surveillance video from Wawa. He placed it with the rest

of the evidence for this case in the evidence storage vault, which could only be

accessed by members of the evidence management unit. Evidence must be

signed in and out, and the location is secure.

      The trial court found that the video was a Wawa surveillance tape from

July 16, 2010, from approximately 9:40 p.m. to 10:00 p.m. The court was

satisfied that the chain of custody and time stamping of the video had been

established in accordance with N.J.R.E. 901 and was admissible.

      N.J.R.E. 901 states: "To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must present evidence sufficient

to support a finding that the item is what its proponent claims." Authentication

occurs when the court conducts a screening process to decide whether a

sufficient basis exists, leaving to the jury the final assessment as to whether the

item is actually authentic. Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, cmt. 1 on N.J.R.E. 901 (2020). "The rule does not require absolute

certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App.

Div. 1999).

      Properly authenticated videotapes are admissible. State v. Loftin, 287

N.J. Super. 76, 98 (App. Div. 1996). "[A] trial court's evidentiary rulings are


                                                                          A-1614-15T1
                                       12
entitled to deference absent a showing of an abuse of discretion, i.e., there has

been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015)

(alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).

      Here, the court properly determined that the video was authenticated

under N.J.R.E. 901. The court heard testimony from Wawa employees and the

police demonstrating the chain of custody. The court personally viewed the tape

to confirm that it depicted the evening of July 16, 2010, based on the time stamp.

Where a surveillance camera films a crime, or the events leading up to or

following a crime, the authenticity foundation can be laid circumstantially. See

Loftin, 287 N.J. Super. at 98-99. "All that is required for authenticity is proof

that the matter is what its proponent claims." Id. at 99. The court did not abuse

its discretion in allowing the Wawa video into evidence.

                                 III. Discovery.

      Defendant argues that the court infringed on his right to obtain discovery

and cross-examine witnesses when it rejected his argument that the assistant

prosecutor failed to produce all investigatory discovery about the victim, Baker.

He contends that the assistant prosecutor did not provide discovery related to an

investigation of a drug dealer named Durrell Whitmore and drug activity at

Baker's home.


                                                                          A-1614-15T1
                                       13
      The court independently reviewed the discovery that defendant requested

and found it unconnected to the murder. One reference in the Whitmore reports

referred to Baker's nickname "Dough Boy" and indicated that Baker was a friend

of Whitmore. Also, a reference was made to surveillance conducted at Baker's

home for a particular car. The court explained that these references were an

insufficient basis to justify turning over information connected to an

investigation of Whitmore.

      A court's denial of a discovery request is reviewed under an abuse of

discretion standard. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010).

Defendant offers no support for his allegations that a third party was responsible

for Baker's death or that exculpatory evidence was presented in the reports.

Defendant's argument is based solely on conjecture. "[A]lthough defendants are

entitled to broad discovery under Rule 3:13-3, they are not entitled to turn the

discovery process into a fishing expedition." State v. Broom-Smith, 406 N.J.

Super. 228, 239 (App. Div. 2009). The court did not abuse its discretion in

denying defendant access to the Whitmore investigation.

                       IV. Post-Verdict Juror Interview.

      Defendant argues that the court erred when it declined to grant his co-

defendant Greene's request for a post-verdict interview of a juror, necessitating


                                                                         A-1614-15T1
                                       14
a new trial. Greene's mother returned home after the verdict was rendered,

looked out her window, and saw juror six talking with the person who lived

across the street. She also believed that she may have observed the neighbor

dropping juror six off at the courthouse. Greene filed a motion to interview

juror six to determine why she did not disclose her relationship with Greene's

mother's neighbor.

      Greene's attorney hired a private investigator who confirmed with the

neighbor that she was a close friend of juror six and did drive her to the

courthouse. Greene's attorney alleged that juror six's failure to disclose her

friendship affected whether counsel would have exercised a preemptory

challenge during jury selection. Greene was concerned that because his father

was "killed under untoward circumstances" and his mother had an arrest record,

the juror could have been exposed to this prejudicial information because

"people talk."

      Greene's counsel conceded that she lacked any specific information that

the juror knew that Greene's mother lived in the same neighborhood. Greene's

investigator's report stated that the neighbor did not know any details about juror

six's case, the neighbor did not know the case involved her neighbor's son, and

the juror never discussed the case with her. In fact, according to the report, it


                                                                          A-1614-15T1
                                       15
was only after the verdict was rendered that the neighbor heard that Greene 's

mother was related to one of the men found guilty.

      The court denied Greene's request for a post-verdict hearing regarding

juror six. It explained that granting such a request is an extraordinary measure.

The connections were "too speculative and too tangential for the [c]ourt to grant

an interview."

      A criminal defendant is entitled to an impartial jury. State v. Papasavvas,

163 N.J. 565, 584 (2000). Asking a juror to return to court for an interview after

a verdict has been rendered and he or she has been discharged is an

"extraordinary procedure which should be invoked only upon a strong showing

that a litigant may have been harmed by jury misconduct." State v. Harris, 181

N.J. 391, 503 (2004) (quoting State v. Athorn, 46 N.J. 247, 250 (1966)).

      "[I]t is virtually impossible to shield jurors from every contact or influence

that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217

(1982). Instead, a defendant receives due process when a jury is capable and

willing to decide the case based solely upon the evidence presented at trial. Ibid.

      A high bar is placed on a party seeking to interview a juror after the jury

has been discharged. State v. DiFrisco, 174 N.J. 195, 241 (2002). The high

standard is required to "prevent juror harassment and avoid chilling jury


                                                                           A-1614-15T1
                                       16
deliberations." Ibid. The trial court appropriately chose not to call back juror

six for an interview based on the evidence that Greene's mother's neighbor was

a friend, especially given that the juror was apparently unaware of the

connection until after the verdict was rendered. Significantly, defendant was

not involved with the application to interview the juror, nor implicated in any

information juror six might have had.

                                   V. Sentence.

      We review a sentence using the abuse of discretion standard of review.

State v. Roth, 95 N.J. 334, 363-64 (1984). The sentencing court is required to

qualitatively weigh the aggravating and mitigating factors. State v. Case, 220

N.J. 49, 65 (2014). The weight given to each is a "function of its gravity in

relation to the severity of the offense." Roth, 95 N.J. at 368.

      A reviewing court is limited to determining: if the sentencing guidelines

were followed; if there was competent credible evidence to support the findings

that were the basis for the sentence; and if the trial court came to an unreasonable

conclusion. State v. Natale, 184 N.J. 458, 489 (2005). It can vacate the sentence

if it "shocks the judicial conscience." State v. Cassady, 198 N.J. 165, 181

(2009). The sentencing court is given wide discretion if the sentence imposed

is within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005).


                                                                           A-1614-15T1
                                        17
       On September 21, 2015, the court sentenced defendant during the same

hearing and at the same time as Greene. The court allowed Baker's family and

Greene's mother to speak. Defendant's mother spoke on his behalf. Defendant

maintained he did not kill Baker. The court reviewed the essential facts of the

case while addressing both Greene and defendant simultaneously.

       The court analyzed the mitigating and aggravating factors for both

defendant and Greene at the same time. As to defendant, the court applied

aggravating factors three, the risk of re-offense, and nine, the need for

deterrence, giving those factors substantial weight. N.J.S.A. 2C:44-1(a)(3) and

(9).   As to factor three, the court concluded that both men failed to take

responsibility for their conduct. As to factor nine, the court explained that there

is a need to deter both defendants and others from engaging in similar conduct

and that the seriousness of the killing showed there was a need to deter both

defendants from similar conduct in the future.

       The court applied mitigating factor six because defendant was directed to

pay restitution. N.J.S.A. 2C:44-1(b)(6). The court orally concluded that it

would apply mitigating factor eleven to defendant, but his judgment of

conviction does not reflect this finding. N.J.S.A. 2C:44-1(b)(11). We order

mitigating factor eleven to be reflected on the judgment of conviction, as


                                                                          A-1614-15T1
                                       18
consented to by the State. We also direct that the judgment be corrected to

reflect that this was not a negotiated plea but a jury trial and that the final charge

was count one, felony murder, only. The court merged the other counts into

count one. The court did not abuse its discretion in sentencing defendant to

thirty-five years in prison, thirty without parole. 2

      The court sentenced defendant and Greene simultaneously rather than

individually, a procedure not in line with the sentencing requirement that

aggravating and mitigating circumstances be considered for every defendant

individually.     "[E]ach '[d]efendant is entitled to [an] individualized

consideration during sentencing.'" State v. Jaffe, 220 N.J. 114, 122 (2014)

(second and third alterations in original) (quoting State v. Randolph, 210 N.J.

330, 349 (2012)); see also N.J.S.A. 2C:1-2(b)(6); State v McFarlane, 224 N.J.

458, 469 (2016) (remanding for resentencing after sentencing judge stated in an

unrelated proceeding that "a judge 'always' sentences defendants convicted of

first-degree murder to sixty years in prison"); State v. McDuffie, 450 N.J. Super.

554, 577 (App. Div. 2017) (noting that a "'one size fits all analysis' falls short


2
   The court added an eighty-five percent parole ineligibility provision and a
five-year period of parole supervision under NERA to the sentence. The parole
ineligibility does not appear to have any practical ramifications because the
thirty-year mandatory parole ineligibility is greater than eighty-five percent of
thirty-five years.
                                                                             A-1614-15T1
                                         19
of the specific findings required when imposing sentencing"). Defendant did

not object to this unusual sentencing process at the hearing or on appeal, and we

think the court sufficiently discriminated between defendants when imposing

sentencing. However, it is not an approved procedure and could easily lead to

confusion and mistake.

                        VI. Accomplice Liability Charge.

      Defendant contends as plain error in his pro se supplemental brief that the

court erred by failing to instruct the jury on accomplice liability because the jury

indicated that it was confused during deliberations. Defendant argues that had

the jury been properly instructed, it may have returned a guilty verdict for

robbery, but not for felony murder. He also argues that the jury was not

instructed on lesser-included offenses.

      The court and counsel held a lengthy charge conference during which the

entire charge was discussed. The court observed on the record that none of the

parties requested an accomplice liability charge during the charge conference.

During the jury charge, the court provided instructions regarding the four

offenses charged in the indictment. As part of the instructions for robbery felony

murder the court stated:

            Under this law, it does not matter which of the
            defendants who had participated in the robbery actually

                                                                           A-1614-15T1
                                        20
            shot and killed Edward Baker. Nor does it generally
            matter that the act which caused the death was
            committed     recklessly    or    unintentionally    or
            accidentally. Each participant in the crime of robbery,
            whether the participant himself caused the death or not,
            would be guilty of felony murder.

Similarly, as part of the charge for burglary felony murder, it stated:

            Under this law, it does not matter which of the
            defendants who had participated in the burglary
            actually shot and killed Edward Baker. Nor does it
            generally matter that the act which caused the death was
            committed     recklessly,     or   unintentionally    or
            accidentally. Each participant in the crime of burglary,
            whether the participant himself caused the death or not,
            would be guilty of felony murder.

After the charge, Greene's counsel reminded the court in a side-bar that the

counsels for defendants did not want the jury charged on the lesser-included

offenses and that lesser-included offenses were not included on the verdict sheet.

      Nevertheless, Greene's counsel was concerned that the jury instructions

could be interpreted to convict defendants of lesser-included offenses. To

alleviate any concerns by defendants that the jury would mistakenly believe that

defendants could be found guilty of lesser-included offenses, the court explained

to the jury that defendants were not indicted for the lesser-included offenses of

second-degree robbery or third-degree burglary.




                                                                          A-1614-15T1
                                       21
      On the second day of deliberations, the jury submitted a note to the court,

which stated:

              We understand that to be guilty of felony murder
              robbery, you do not have to be the person who actually
              shot the person but can be found guilty by association.
              Is the same true for felony murder burglary or does each
              person have to enter the residence?

In response, the court re-read the relevant jury instructions. The court also

reminded the jury that a separate verdict should be rendered for each defendant

and that each case should be decided individually.

      The jury's question caused the defense to request additional jury

instructions. Greene's counsel wanted an instruction about how there cannot be

"guilt by association" for any of the charges. The State suggested providing an

accomplice liability charge. Initially, Greene's counsel agreed with the State

and defendant's counsel seemingly joined in that request at that time, but later

Greene's counsel opposed an accomplice liability charge. The court observed

that no one brought up an accomplice liability charge during the charge

conference.     Ultimately, the court did not provide the accomplice liability

charge, but rather instructed the jury further about "guilt by association" by

stating:

              In reference to this note, the [c]ourt recharged you on
              the principles of multiple charges where there is more

                                                                         A-1614-15T1
                                        22
             than one defendant and felony murder burglary. The
             [c]ourt now takes this opportunity to further respond to
             the statement guilt by association. There is no guilt by
             association. In your determination of whether the State
             has proven beyond a reasonable doubt each and every
             element of the offenses charged, defendants are entitled
             to have each count considered separately by the
             evidence which is relevant and material to that
             particular charge based on the law as I have given it to
             you.

             You must also return separate verdicts for each
             defendant as to each of the charges being tried. In other
             words, you will have to decide each case individually.
             Whether the verdict as to each defendants [sic] are the
             same depends on the evidence and your determination
             as judges of the facts.

Neither defendant objected to this charge.

      "It is a well-settled principle that appropriate and proper jury charges are

essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). A jury

charge sets up a "road map to guide the jury" and must explain the law to the

jury in the context of the material facts of the case. Ibid. (quoting State v.

Martin, 119 N.J. 2, 15 (1990)). A jury charge must be reviewed in its entirety

to determine the overall effect. Ibid. If a defendant fails to object to the jury

charge, the court may hold, pursuant to Rule 1:7-2, that he or she waived the

right to challenge the jury instruction on appeal. State v. Afanador, 151 N.J. 41,

54 (1997).


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      Because this issue was not raised below, defendant must show plain error

"clearly capable of producing an unjust result." Ibid.; R. 2:10-2. In the context

of a jury charge, plain error has been defined as "[l]egal impropriety . . .

prejudicially affecting the substantial rights of the defendant 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."

Ibid. (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Errors in criminal jury instructions are "excusable only if they are harmless

beyond a reasonable doubt." State v. Vick, 117 N.J. 288, 292 (1989).

      Defense counsel did not complain that the court failed to charge the jury

with accomplice liability and did not file a motion seeking a new trial on the

basis that the court should have provided an accomplice liability charge.

Moreover, counsel did not object to the charge that the court provided to the jury

about "guilt by association."     The court provided the jury with clear and

comprehensive instructions that satisfied the concerns of the defendants

regarding the jury's use of the term "guilty by association" in its note.

      "Only if the record clearly indicates a lesser-included charge—that is, if

the evidence is jumping off the page—must the court give the required

instruction." State v. Funderburg, 225 N.J. 66, 81-82 (2016) (quoting State v.


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                                       24
Denofa, 187 N.J. 24, 42 (2006)). Defendant strategically asked the court not to

charge lesser-included offenses. As a result, defendant's argument on appeal

that the court should have nevertheless advised the jury on lesser-included

offenses is rejected. Defendant "cannot beseech and request the trial court to

take a certain course of action, and upon adoption by the court, take his chance

on the outcome of the trial, and if unfavorable, then condemn the very procedure

he sought and urged, claiming it to be error and prejudicial." State v. Jenkins,

178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).

"[W]hen a defendant asks the court to take his proffered approach and the court

does so, [the Court has] held that relief will not be forthcoming on a claim of

error by that defendant." Ibid.

      We affirm the convictions and remand only to correct the judgment of

conviction by adding mitigating factor eleven, eliminating the statement that it

was a negotiated plea and reflecting the merger decision that defendant is guilty

of one count of felony murder only. We do not retain jurisdiction.




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