                                NOT FOR PUBLICATION WITHOUT THE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-0463-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAWAN INGRAM,

     Defendant-Appellant.
_____________________________

                    Submitted December 20, 2018 – Decided April 12, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 14-03-0827.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Joshua D. Sanders, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore Stephens II, Acting Essex County Prosecutor,
                    attorney for respondent (Tiffany M. Russo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

        Defendant Dawan Ingram appeals from an August 9, 2016 judgment of

conviction for the murder of Najee Montague on a Newark street corner. Three

people witnessed Montague's shooting and identified defendant as the shooter.

A jury convicted defendant of: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and

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

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a). We affirm defendant's conviction but remand to address sentencing error.

        We discern the following facts from the trial record. On September 21,

2013, around 7:35 p.m., police officers responded to a disturbance at Salem

Street and South Orange Avenue in Newark. When officers arrived, Montague

was lying on the ground. D.H.,1 Montague's friend, had been inside a bodega

on the corner just moments before the shooting. D.H. did not see the shooter's

face. When D.H. was trying to help Montague, a bystander either showed him

where the shooter dropped the gun or handed the gun to D.H. D.H. took the gun,

ran down the street, and hid it in a backyard garage. He did not mention the gun

to police at the scene. Two days later, the police brought D.H. to the police

station for an interview.


1
    We use initials to protect the identity of the eyewitnesses.
                                                                        A-0463-16T3
                                          2
      Detective Tyrone Crawley created a photo array and handed it to Detective

Murad Muhammad to show D.H. Muhammad administered the identification

and the process was recorded. D.H. recognized the men in two photos. When

D.H. selected photo four, Muhammad asked "what did he do?" to which D.H.

responded, "[h]e . . . supposedly shot my man[.]" Crawley entered the room

after D.H. made the identification, but D.H. refused to sign anything confirming

his identification. Instead, Crawley marked which photo D.H. identified. At

trial, D.H. testified he signed a letter stating he felt police pressured him into

selecting defendant's photo. Muhammad denied coercing D.H. into making an

identification.

      The day after D.H. identified defendant as the shooter, he led Crawley to

where he hid the gun on Salem Street. Two live rounds were recovered from

the gun that were consistent with those recovered from the scene of the shooting.

      H.J., who was also Montague's friend, was talking with him on the street

corner before the shooting. The police brought H.J. to the police station to

provide an identification. Crawley created the photo array and handed it to

Detective Eric Manns. The process was recorded.

      H.J. selected defendant's photo as the shooter.       Manns testified H.J.

appeared nervous but not under the influence of alcohol or drugs and was able


                                                                          A-0463-16T3
                                        3
to understand everything Manns said to him. At trial, H.J. testified he was very

drunk and high when he identified defendant and denied signing his name on the

form acknowledging his identification.       H.J. also claimed not to recognize

himself in the video. On the witness stand, H.J. testified he remembered nothing

about the shooting or his identification and that he did not know defendant.

      L.P., a registered nurse, often ran errands on the street corner where

Montague was shot. On the day Montague was murdered, she saw two men

conversing in front of the bodega when she suddenly heard a "pop" and saw

Montague fall to the ground. The shooter was standing about eight feet away

from her and, in court, she identified defendant as the shooter.

      L.P. approached Montague and tried to help him. When the police arrived,

she gave them an alias. Later, L.P. explained she used this alias because she did

not want to get involved in the matter and used the alias to apply for credit cards.

      The police took L.P. to the police station to provide a statement. When

asked whether she could identify the shooter, she said it was possible, but when

shown a group of photos, she did not make an identification. L.P. signed her

alias on the statement.

      Two months later, police again asked L.P. to try to identify the shooter

from an array of photos. Manns again administered the identification and L.P.


                                                                            A-0463-16T3
                                         4
identified defendant as the shooter. She denied receiving any suggestion or

pressure to select defendant's photo. During her testimony, she explained she

originally used an alias to avoid involvement but ultimately decided to give her

real name when asked to make a second identification.

       Prior to trial, defendant moved to suppress all three identifications.

Defendant argued the detectives did not follow the Attorney General's guidelines

in preparing and conducting the photo lineups because the detectives did not ask

certain prefatory questions, such as whether the witnesses talked with co-

witnesses prior to making the identification. The trial judge found no indicia of

suggestiveness and declined to grant defendant a Wade2 hearing.

       The trial began on June 1, 2016. All three identification videos were

played for the jury. State witnesses included H.J., L.P., D.H., Crawley, Manns

and other officers, as well as ballistics expert Luke Laterza. Defense witnesses

included defendant's mother and other alibi witnesses. After the jury convicted

defendant on all counts, on August 5, 2016, the judge sentenced him to a fifty-

year term for the murder charge, with an eighty-five percent parole ineligibility

term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The weapons

convictions were merged for sentencing purposes, and defendant received a


2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-0463-16T3
                                       5
concurrent ten-year term, with five years parole ineligibility. A $500 Violent

Crimes Compensation Board (V.C.C.B.) fine was also levied as punishment for

the murder conviction. This appeal followed.

      Through counsel, defendant raises the following points on appeal:

            POINT I

            BECAUSE THE IDENTIFICATIONS OF MR.
            INGRAM     WERE    THE   PRODUCT     OF
            IMPERMISSIBLY     SUGGESTIVE    SYSTEM
            VARIABLES THE TRIAL COURT COMMITTED
            REVERSIBLE ERROR BY ADMITTING THE
            IDENTIFICATIONS INTO EVIDENCE WITHOUT
            FIRST   PROPERLY    DETERMINING   THEIR
            RELIABILITY.

            POINT II

            THE COURT VIOLATED MR. INGRAM'S RIGHTS
            TO DUE PROCESS AND A FAIR TRIAL BY
            ADMITTING "EXPERT" BALLISTICS TESTIMONY
            THAT IS CONTRARY TO THE CURRENT STATE
            OF THE SCIENCE AND FEDERAL LAW AND IS
            THEREFORE UNRELIABLE AND INADMISSIBLE
            UNDER [N.J.R.E.] 702.

            A.    Subjective Ballistics Toolmark Evidence Is
                  Inadmissible Under [N.J.R.E.] 702 As It Is
                  Unreliable.

            B.    Alternatively, This Court Should Remand The
                  Matter For A [Rule] 104 Hearing As To The
                  Scientific Reliability Of This Evidence, If Any.



                                                                          A-0463-16T3
                                      6
      POINT III

      THE SENTENCING COURT ERRONEOUSLY
      ANALYZED     THE   AGGRAVATING          AND
      MITIGATING FACTORS AND IMPOSED AN
      EXCESSIVE SENTENCE. (Not Raised Below).

      A.    The Trial Court Erred In Imposing, Without
            Explanation, A $500 V.C.C.B. Fine For the
            Murder.

      B.    The Trial Court Erred In Finding Aggravating
            Factor One.

      C.    The Trial Court Erred In Finding Aggravating
            Factor Two.

Defendant, in a pro se supplemental brief, raises the following points:

      POINT 1

      A JUROR OVERHEARD THE ALLEGED WITNESS
      [H.J.] IN THE BATHROOM HAVING A
      CONVERSATION WITH SOMEONE WHILE ON A
      CELLULAR PHONE.

      POINT 2

      DEFENDANT/APPELLANT WAS DENIED THE
      EFFECTIVE ASSISTANCE OF COUNSEL AT
      TRIAL.

      POINT 3

      TRIAL   COURT   ERRED  IN  ALLOWING
      DEFENDANT/APPELLANT'S PAROLE OFFICER
      TO   TESTIFY  AS  WHETHER   OR   NOT
      DEFENDANT/APPELLANT WAS HOME BECAUSE

                                                                   A-0463-16T3
                                 7
HER TESTIMONY DEPENDED SOLELY ON AN
ANKLE MONITOR THAT WAS NOT PRESERVED
IN EVIDENCE OR PRESENTED TO THE JURY
AND WAS QUESTIONABLE TO BE WORKING
AROUND THE TIME OF THE INCIDENT.

POINT 4

DEFENDANT/APPELLANT WAS DENIED A FAIR
TRIAL, BECAUSE PROSECUTION KNOWINGLY
USED PERJURED TESTIMONY, THAT MAY HAVE
DERIVED FROM WITNESS BEING THREATENED
WITH PERJURY AND OR OTHER CRIMINAL
CHARGES AFTER SHE LIED TO DETECTIVES
ABOUT WHO SHE WAS UNDER OATH AND
ADMITTED THAT SHE COMMITTED FRAUD.

POINT 5

THE TRIAL COURT ERRED IN PERMITTING THE
STATE TO COMMENT ON FACTS NOT SHOWN
OR REASONABLY INFERRED FROM THE
EVIDENCE IN THE CASE WHICH PREJUDICED
THE DEFENDANT/APPELLANT.

POINT 6

PROSECUTION      [INADVERTENTLY]   OR
INTENTIONALLY               [WITHHELD]
INTERROGATION VIDEO FROM OCTOBER 1ST,
2013 OF WHEN DEFENDANT WAS QUESTIONED
AND CHARGED FOR THE CRIMES HE WAS
CONVICTED OF WHICH CONTAINED POSSIBLE
EXCULPATORY EVIDENCE.




                                          A-0463-16T3
                   8
              POINT 7

              TRIAL COURT ABUSED THEIR DISCRETION IN
              OVERRULING AN OBJECTION BY THE DEFENSE
              COUNSEL AND ALLOWING A POLICE OFFICER
              TO TESTIFY IN A GROSS[3] HEARING TO
              DETERMINE THE RELIABILITY OF A VIDEO OF
              A PHOTO LINEUP THAT HE WAS NOT
              PHYSICALLY IN THE ROOM TO WITNESS.

                                         I.

        On appeal, defendant argues the judge abused her discretion by admitting

video of the out-of-court identifications. He argues D.H.'s identification was

impermissibly suggestive because the police allegedly told D.H. whom to

identify beforehand, Muhammad did not ask D.H. whether he spoke with anyone

about the identification prior to making it, and Muhammed did not conduct the

identification in a double-blind fashion. Defendant also suggests L.P. was

coerced to identify him because the police learned of her alias and used it as

leverage. Finally, he asserts H.J.'s identification was inadmissible because a

different officer than who administrated the identification was permitted, during

the Gross hearing, to view H.J.'s video identification even though the officer

was not present for the photo identification. We disagree as to all points.




3
    State v. Gross, 121 N.J. 1 (1990).
                                                                         A-0463-16T3
                                         9
      A trial court should suppress an out-of-court identification if the defendant

can prove "a 'very substantial likelihood of irreparable misidentification.'" State

v. Henderson, 208 N.J. 208, 238 (2011) (quoting State v. Madison, 109 N.J. 223,

232 (1988)), modified on other grounds, State v. Anthony, __ N.J. __ (2019).

To obtain a Wade hearing, a defendant must make a preliminary showing of

"'some evidence of suggestiveness' in the identification procedure." State v.

Pressley, 232 N.J. 587, 596 (2018) (quoting Henderson, 208 N.J. at 288-89).

Suggestiveness can be proven through the presence of system variables, or those

circumstances of an identification within the State's control. Henderson, 208

N.J. at 248. System variable include: (1) whether a "blind" or "double-blind"

administrator is used; (2) whether pre-identification instructions are given; (3)

whether the lineup is constructed of a sufficient number of fillers that look like

the suspect; (4) whether the witness is given feedback before, during or after the

procedure; (5) whether the witness's confidence level was recorded before any

confirmatory feedback was given; (6) whether the witness is exposed to multiple

viewings of the subject; (7) whether a "showup" was used; (8) whether the

administrator asked the witness if he or she had spoken with anyone about the

identification; and (9) whether the eyewitness initially made no choice or chose

a different suspect or filler. Id. at 289-91. If this threshold showing is made,


                                                                           A-0463-16T3
                                       10
the State must demonstrate the identification is reliable "accounting for system

and estimator variables." Id. at 289. The ultimate burden to prove "a very

substantial likelihood of irreparable misidentification" remains with the

defendant at all times. Ibid.

      Here, the judge did not abuse her discretion by denying defendant's Wade

motion seeking to suppress D.H.'s and L.P.'s identifications. She properly

observed a hearing was only required upon a showing of some evidence of

impermissible suggestiveness. The judge also properly bifurcated the analysis

and first considered whether the identification procedure itself was unduly

suggestive. Thus, upon finding no evidence of suggestiveness, the judge did not

need to consider whether estimator variables were present.

      In particular, there was nothing suggestive about L.P.'s delay in

identifying defendant.   The judge expressed a willingness to consider this

argument under Rule 104 before L.P. testified at trial. But when the time came,

defendant made no objection, and L.P. testified unimpeded.

      We also reject defendant's suggestion that D.H. was coerced into selecting

defendant's photo. That argument is directly contradicted by D.H.'s statement,

"[h]e . . . supposedly shot my man[.]" after Officer Muhammad asked why he

selected defendant's photo. Whether the account of the identification D.H. gave


                                                                        A-0463-16T3
                                      11
on the stand was to be believed was a credibility question for the jury. As for

the argument L.P.'s identification was coerced because the police knew she used

an alias, her identification was, like D.H.'s, a matter of credibility rather than

admissibility, and it was fully aired for the jury at trial.

      During the Gross hearing regarding H.J.'s identification of defendant,

defense counsel objected to Detective Rashaan Johnson's testimony about the

video because he was not present for the photo identification.         The judge

overruled the objection. The transcript reveals Officer Johnson did not testify

about the photo identification or anything else outside his personal knowledge.

Thus, we discern no abuse of the court's discretion in permitting him to observe

and testify about the video during the Gross hearing.

                                         II.

      We also reject defendant's newly-minted argument that the expert

testimony concerning the murder weapon should have been excluded.

Defendant did not object to the expert's testimony at trial. Therefore, we review

for plain error. R. 2:10-2; State v. Nesbitt, 185 N.J. 504, 516 (2006).

      Nine shell casings were recovered at the scene and two live rounds were

found in the gun D.H. hid on Salem Street. Luke Laterza, the head firearms




                                                                          A-0463-16T3
                                         12
examiner at the Newark Police Ballistics Laboratory, testified to identify the

firearm and ammunition.

      Laterza identified the firearm retrieved from D.H. as a "nine-millimeter

[Sturm] Ruger semi-automatic pistol"4 and observed the live rounds were

stamped by the name of their manufacturer, Speer. The nine shell casings were

also made by Speer for a nine-millimeter Luger firearm. Each time a round is

discharged, the gun's firing pin or breech face makes an imprint on the cartridge

case. Laterza opined the imprints on all nine shell casings were identical. Thus,

Laterza concluded all nine rounds were "in fact" fired from the same firearm.

When compared to the markings made by the firearm recovered, Laterza

concluded the bullets were fired from the gun D.H. led police to retrieve.

      Defendant argues Laterza's opinion was subjective and not supported by

objective, reliable, and scientific analysis.5   Defendant seeks, as a general


4
   The transcripts use "Luger" and "Ruger" interchangeably when describing the
firearm. Neither party has indicated this is a meaningful difference.
5
   Firearm toolmark identification is performed by conducting a side -by-side
comparison of a cartridge case from a round found in the firearm versus cartridge
casings found at the scene. The examiner uses a comparison microscope to
visually compare the markings on the cartridge case found in the weapon versus
those found at the scene. If the markings match, the examiner opines the
cartridge casings found at the scene were fired from the recovered firearm.
Defendant argues such an assessment is subjective (because it is a visual


                                                                         A-0463-16T3
                                      13
matter, a re-examination of firearm toolmark identification expert testimony.

Defendant's chief argument is that firearm toolmark experts should not be

permitted to testify with certainty the bullet casings found at the scene were fired

from the gun examined. He points out the expert has no way to rule out that the

bullet was not fired from a different, identical gun. Although at least one federal

court has discussed this issue, United States v. Willock, 696 F. Supp. 2d 536 (D.

Md. 2010), no New Jersey court has addressed it, and we need not address it

here.6 Here, D.H. testified the shooter dropped the gun at the scene, D.H.

acquired it, and he turned it over to police. Accordingly, there is little doubt the

State's expert examined the gun used in the shooting.


examination) and does not account for class or subclass characteristics. Class
characteristics, in the firearms context, are those markings unique to a make and
model of a particular firearm or ammunition. Nat'l Research Council,
Strengthening Forensic Science in the United States: A Path Forward 152
(2009). What a visual examination cannot rule out is the possibility that the
cartridge casings recovered at the scene possess the same class or subclass
characteristics as the firearm under examination but were fired from a different
firearm of the same make and model. This prevents the expert from assigning a
probability or error rate to the examination because it is entirely subjective and
therefore, in defendant's opinion, unreliable.
6
  The expert testimony in this case was admitted before our Supreme Court
explained the federal Daubert standard should be incorporated by New Jersey
courts to assess the admissibility of expert testimony. In re Accutane Litig., 234
N.J. 340, 348, 398 (2018) (discussing Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993)).


                                                                            A-0463-16T3
                                        14
                                        III.

      Also, for the first time on appeal, defendant argues the trial court erred by

not giving curative instructions after two juror irregularities, the State needed to

prove his ankle bracelet was functioning before his probation officer could

testify, the prosecutor's statements during summation constituted misconduct,

and he was deprived of effective assistance of counsel. We review for plain

error. None of the arguments have merit. 7

      During a break in testimony, Juror Two reported to a court officer that

while he was in the bathroom, he overheard a man on a phone telling someone,

"I don't know why they're calling me. I don't know anything." The man also

said "don't worry, we've been together a long time. I know you a long time, so

don't worry. I know nothing." When asked whether he could continue to be fair

and impartial, Juror Two believed he could not. Juror Two said he "could listen

to the facts," but what he overheard tainted his view of "the witness," because

he could not believe "how someone could forget so easily a[n] experience like



7
  Defendant also alleges the prosecutor withheld an exculpatory video recording
of when the police brought defendant in for questioning. Defendant fails to
point us to any place in the record where this allegation is substantiated.
Therefore, we decline to review it.



                                                                            A-0463-16T3
                                        15
this."8 The trial judge excused Juror Two and questioned the rest of the jury.

All but one remaining juror said Juror Two started to tell the group what he

overheard, but they stopped him and informed the court. None of the remaining

jurors said Juror Two told them anything that would affect their ability to be

impartial.

       During the trial, Juror One informed the judge the Essex County

Prosecutor's Office executed a search warrant at her son's house in an unrelated

case. She said this would not affect her ability to be impartial but added the

search was a surprise to her, and she was unsure whether it would decrease her

focus on the trial. After a discussion with counsel, the trial court did not dismiss

Juror One but instructed her to let the court know if her concentration was

diminished.

       On appeal, defendant argues the trial judge should have given a curative

instruction after both juror incidents.      We discern no abuse of discretion.

"Ultimately, the trial court is in the best position to determine whether the jury

has been tainted." State v. R.D., 169 N.J. 551, 559 (2001). "The trial court must

use appropriate discretion to determine whether the individual juror, or jurors,

'are capable of fulfilling their duty to judge the facts in an impartial and unbiased


8
    Juror Two presumed the man on the phone was H.J.
                                                                             A-0463-16T3
                                        16
manner, based strictly on the evidence presented in court.'" Id. at 558 (quoting

State v. Bey, 112 N.J. 45, 87 (1988)). Curative instructions are necessary to

mitigate potential prejudice swept into the trial by inadmissible evidence. State

v. Rivera, 437 N.J. Super. 434, 461 (App. Div. 2014).

      The trial judge dismissed Juror Two, and she voir dired remaining jurors

and reminded them of their duty to be impartial, which was effectively a curative

instruction. Juror One was instructed to inform the court if she felt she could

not continue, and she felt she could continue to be impartial. No further curative

steps were necessary.

      Next, defendant argues the trial judge should not have permitted

defendant's probation officer to testify about his electronic curfew. Police were

alerted to the murder at approximately 7:35 p.m. Defendant's mother testified

defendant was at home with her at 7:25 p.m. In rebuttal, the State called

defendant's parole officer. Defendant was wearing an electronic monitoring

device that registered when defendant entered and exited through the front door

of his mother's apartment.    Defendant's probation officer testified her logs

reflected that defendant returned home at 7:45 p.m.

      The trial court conducted a Rule 104 hearing on the admissibility of the

parole officer's testimony and ruled the probative value of defendant's location


                                                                          A-0463-16T3
                                       17
was not outweighed by the prejudicial fact he was on parole. Defendant argues

the testimony should have been excluded because the State did not present the

ankle bracelet to the jury to prove it functioned.

      "[A] trial court's evidentiary rulings are 'entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment.'"

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

v. Brown, 170 N.J. 138, 147 (2001)). We will reverse an evidentiary ruling only

where "there has been a clear error of judgment" that resulted in "a manifest

denial of justice[.]" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting Brown,

170 N.J. at 147).

      We detect no abuse of discretion in admitting the probation officer's

testimony. Whether the probation officer was more or less credible because she

did not produce the ankle bracelet was for the jury to decide.

      Next, defendant contends the prosecutor committed misconduct during

summation by commenting on facts outside the evidence when he suggested

D.H. lied when he denied knowing defendant. Defendant also takes issue with

the prosecutor's argument that defendant had time to commit the murder and

return home by 7:45 p.m.




                                                                            A-0463-16T3
                                        18
      The prosecutor's duty to achieve justice does not forbid a prosecutor from

presenting the State's case in a "vigorous and forceful" manner.         State v.

Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Buchanis, 26 N.J. 45, 56

(1958)).   However, closing statements must be confined to "comments

[regarding] evidence revealed during the trial and reasonable inferences to be

drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (quoting

State v. Smith, 167 N.J. 158, 177 (2001)).         During closing argument, a

prosecutor may not: "make inaccurate legal or factual assertions," State v. Frost,

158 N.J. 76, 85 (1999), make an argument contrary to the facts or reference

evidence the court has ruled inadmissible, State v. Ross, 249 N.J. Super. 246,

250 (App. Div. 1991), or "express a personal belief or opinion as to the

truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super.

602, 605 (App. Div. 1993).

      The prosecutor's comments herein did not rise to the level of misconduct.

It was up to the jury to determine whether to believe D.H.'s identification or his

in-court testimony where he recanted. The prosecutor was permitted to suggest

the jury infer D.H. was lying on the stand. Moreover, the jury was free to infer

how fast defendant was driving because the State presented time-stamped




                                                                          A-0463-16T3
                                       19
security footage showing defendant driving away from the scene with enough

time to return home by 7:45 p.m.

        Next, defendant argues he was denied effective assistance of counsel but

does not offer a reason why his trial counsel's performance fell below an

acceptable standard.     "Our courts have expressed a general policy against

entertaining ineffective-assistance-of-counsel claims on direct appeal because

such claims involve allegations and evidence that lie outside the trial record."

State v. Preciose, 129 N.J. 451, 460 (1992). But we acknowledge a "defendant

should not be required to wait until post-conviction relief to raise the issue [if]

the trial record discloses the facts essential to his ineffective assistance claim."

State v. Allah, 170 N.J. 269, 285 (2002). Because defendant does not explain

how his trial counsel was ineffective, we cannot review his claim.

                                        IV.

        Finally, defendant was sentenced to a fifty-year term and assessed a $500

V.C.C.B. penalty on the murder conviction.          He argues the sentence was

premised on an erroneous finding of aggravating factors one and two. Defendant

also contests the V.C.C.B. penalty as excessive. We affirm the sentence, but

reverse the V.C.C.B. fine and remand for the judge to address the amount of the

fine.


                                                                            A-0463-16T3
                                        20
      The trial judge found defendant's act to be "especially heinous, cruel and

depraved" because defendant shot the victim, who was among a group of

bystanders on a busy street corner, seven times, including three times in the

back. However, the judge made no explicit finding of aggravating factor one,

and defendant now argues the judge relied on the heinous nature of defendant's

acts for sentencing purposes. The trial judge did make an explicit finding of

aggravating factor two.     The judge considered Montague to be vulnerable

because defendant shot him in the back without provocation. Defendant argues

this was error because Montague did not lack the capacities of a typical adult

and was not restrained or previously wounded. However, N.J.S.A. 2C:44-

1(a)(2), "does not limit 'vulnerability' to age or other physical disabilities of the

victim.   It expressly includes 'any other reason' that renders the victim

'substantially incapable of exercising normal physical or mental power of

resistance.'" State v. O'Donnell, 117 N.J. 210, 218-219 (1989) (quoting N.J.S.A.

2C:44-1(a)(2)). We discern no abuse of the court's discretion in her application

of sentencing factors.

      N.J.S.A. 2C:43-3.1(a)(1) required the trial judge to assess defendant a fine

of "at least $100.00, but not to exceed $10,000.00" for his murder conviction.

In State v. Gallagher, we explained when a court imposes a higher penalty than


                                                                             A-0463-16T3
                                        21
the statutory minimum, the court must demonstrate "some relationship between

[the] defendant's ability to pay over the course of his incarceration and parole,

and the actual [V.C.C.B.] penalty imposed." 286 N.J. Super. 1, 23 (App. Div.

1995). Necessarily, this finding must be made on the record. State v. Swint,

328 N.J. Super. 236, 264 (App. Div. 2000). Here, the trial court assessed a $500

V.C.C.B. fine without giving a corresponding reason why a departure from the

statutory minimum was warranted. We remand for the trial judge to make the

required findings or correct the amount of the fine.

      Defendant's conviction is affirmed and the matter is remanded for

resentencing consistent with this opinion.




                                                                         A-0463-16T3
                                      22
