                     NOT FOR PUBLICATION WITHOUT THE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-4211-15T1


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

     v.

BERNARD JONES, a/k/a JAMES
BERNARD,

     Defendant-Appellant.
________________________________________________________________

           Submitted September 14, 2017 – Decided November 20, 2017

           Before Judges Alvarez and Nugent.

           On appeal from the Superior Court of New
           Jersey, Law Division, Essex County, Indictment
           Nos. 14-01-0220 and 14-01-0222.

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

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

PER CURIAM

     Tried by a jury, defendant Bernard Jones was convicted of
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b), and fourth-degree certain persons not to have a weapon,

N.J.S.A. 2C:39-7(a).        On January 19, 2016, he was sentenced on the

possession offense to nine years imprisonment subject to fifty-

four months of parole ineligibility, and a concurrent eighteen

months on the certain persons charge.              He now appeals, contending

that trial errors warrant reversal.              Defendant also contends that

the judge's failure to expand on his reasons for the sentence, and

to order a mental health evaluation before imposing the sentence,

warrant a remand.        We do not agree and thus affirm.

       We derive the following circumstances from the trial record.

On    September   18,     2013,     at   about   10:50   p.m.,     Newark    Police

Department Sergeant Joseph Frost was told by a guard stationed at

the   security    gate    of   an   apartment     complex   that    there    was    a

suspicious vehicle in the rear.               Frost also testified that as he

and his partner approached the area, they saw a black Pontiac with

the interior and exterior lights on, windows partially rolled

down.    They left their patrol car and began to walk towards the

Pontiac from both sides.            Frost smelled marijuana and noticed an

open can of beer in the front seat console.                 When defendant saw

the officers, he raised his hands up in the air and said, "Oh

shit, I'm caught.        I'm going to jail."       Frost immediately directed

his flashlight into the car and saw a handgun on the floor between


                                          2                                 A-4211-15T1
defendant's legs.   Detective Jesus Rivas patted defendant down

once he was removed from the car, and recovered four rounds of

ammunition from defendant's front right-hand pocket.

     Defendant testified, and denied having been in possession of

a gun, claiming he saw it for the first time when it was shown to

him at the police station after his arrest.     He also testified,

contrary to the officers, that the ammunition was found in a baby's

sock located in the pouch behind the passenger seat.

     The vehicle's other occupants included defendant's sister,

her best friend, and a cousin.   Although he did not accuse anyone

of being in possession of the gun, defendant implied that the

officers "put it on him," despite the fact that the weapon and

ammunition may have belonged to others in the car.   When arrested,

defendant had a box cutter in his pocket that he used at work.

     In her closing argument, defendant's attorney noted that the

handgun had no fingerprints.   She reiterated defendant's statement

that he had never seen the gun in the vehicle and knew nothing

about it until he heard the officers say "gun" at the scene.

Counsel focused on the conflicts in the testimony, suggesting to

the jury that the gun was located elsewhere in the car and that

because three of the four occupants of the vehicle were women, the

officers charged defendant, the only man.

     In response, the prosecutor said:


                                 3                          A-4211-15T1
At the end of the day, though, the point that
[defendant] wanted to make was clear he wanted
to make it a point that all of the police
pinned the gun on him; that the gun was pinned
on him. They had it. They got it from somewhere
else, they pinned it on him.

If the police wanted to pin this gun on this
defendant don’t you think they would have been
done [sic] a better job of it? Let’s start
with everything that the police could have
done if they were really out to pin it on this
defendant.

He said that there was a blunt in the car.
Well, drugs are against the law and [] Frost
said he definitely smelled the smell of smoke.
The defendant said they searched the car.
Well, they searched the car and if they’re out
to pin things on the defendant where is the
drug charge?

He said he had a box cutter on him. That’s a
weapon, ladies and gentlemen. Where is the
weapon charge for the box cutter? The judge
is going to tell you about the law and when
you get the definitions for actual possession
and   joint   possession   and   constructive
possession, you're going of learn that under
the facts, the police could have charged
everybody in that car with possession of the
gun.

Now, they didn't    do that. They charged just
the driver with     the open container ticket
because she had     a Bud Ice in the center
console. And then    they charged the defendant
with a gun.

[] Frost said the reason why he was charged
with a gun was because it was in his
possession. He had it, within arm's reach
fully loaded ready to go. He also had the
bullets in his pocket. That is indicative of
possession [ ] in and of itself. When you look
at the picture together that's compelling.

                        4                         A-4211-15T1
          The defendant's own words, "Aw, shit. I'm
          caught. Hands up. I surrender." He was
          compliant. If the police were out to get him
          they could have said he resisted and charged
          him with something else. They didn't do that.
          They exercised their discretion. They charged
          appropriately and they arrested the one
          defendant, this man, for the gun.


     During   his    presentence   interview,   defendant   told   the

probation officer that at times he heard voices.        He had never

received treatment for a mental health condition, previously told

anyone about this, was not on any medication, and was never

diagnosed as having a mental illness.

     On appeal, defendant raises the following points:

          POINT I

          THE   PROSECUTOR COMMITTED  MISCONDUCT  BY
          BOLSTERING THE CREDIBILITY OF THE STATE'S
          WITNESSES AND BY MISCHARACTERIZING FROST'S
          TESTIMONY.

          POINT II

          THE STATE'S INTRODUCTION OF HEARSAY TESTIMONY
          FROM AN UNNAMED DECLARANT REGARDING THE SO-
          CALLED SUSPICIOUS NATURE OF THE VEHICLE
          WARRANTS REVERSAL.

          POINT III

          THE   MATTER    SHOULD    BE    REMANDED    FOR
          RESENTENCING, BECAUSE THE SENTENCING COURT
          FAILED TO ADEQUATELY EXPLAIN THE BASIS FOR THE
          SENTENCE,   AND   THE   NINE-YEAR     TERM   OF
          IMPRISONMENT    WITH   A     54-MONTH    PAROLE
          DISQUALIFIER IS MANIFESTLY EXCESSIVE AND
          UNDULY PUNITIVE.

                                   5                          A-4211-15T1
      Neither of the first two points were raised during the trial.

Accordingly, they do not warrant reversal unless the alleged error

was "of such a nature as to have been clearly capable of producing

an unjust result," or if it is in the interests of justice to do

so.   See R. 2:10-2.

                                     I.

      We   only   reverse   based   on    improper   remarks   made   during

summation when the conduct "was so egregious that it deprive[s]

the defendant of a fair trial."           State v. Frost, 158 N.J. 76, 83

(1999).     Remarks are ordinarily not deemed prejudicial if no

objection is raised at trial. Counsel's failure to object suggests

that defense counsel "did not believe the remarks were prejudicial

at the time they were made," and it also "deprives the court of

an opportunity to take curative action."          Id. at 84.

      In this case, the prosecutor's remarks are unobjectionable

and intended to refute defendant's testimony that the police "put

it on him[,]" or that he was arbitrarily selected to be the person

who would be charged with possession due to some unidentified

animus.     The prosecutor's comments merely pointed out that if

falsely incriminating defendant had been the officers' purpose,

they would have done a "better job of it[.]"            Defendant was not

charged with a marijuana offense, nor with possession of the box

cutter.    Only the driver was charged with an open container.             The

                                     6                                A-4211-15T1
prosecutor was merely arguing that charging defendant with only

the   gun    offenses   supported      the    credibility     of   the    officer's

testimony.       This   was    fair    comment   on   the   evidence,      and    the

reasonable inferences which could be drawn therefrom.                    See id. at

82-83.      It was an appropriate response to defendant's summation.

      The prosecutor's theme had to be witness credibility, because

defendant contradicted the officers in essential respects.                         If

defendant was believed, he would have been acquitted.                            Thus,

pointing out the limited charges against defendant was not improper

bolstering. Nor was it a mischaracterization of Frost's testimony.

                                        II.

      Defendant next contends that the officer's statement that

police were directed to the rear of the apartment complex because

a suspicious vehicle was parked in that area, violated his right

of confrontation, and exceeded the permissible boundaries outlined

in State v. Bankston, 63 N.J. 263 (1973), and State v. Branch, 182

N.J. 338 (2005). In Branch, an officer "testified that he included

defendant's     picture   in    a     photographic    array    because      he    had

developed defendant as a suspect 'based on information received.'"

Id. at 342.      He also testified to the out-of-court descriptions

of a burglar given by "non-testifying child victims."                    Ibid.

      The Court found the testimony to be "inadmissible hearsay

that violated defendant's right of confrontation."                       Ibid.     The


                                         7                                  A-4211-15T1
source     of    the   information   was       not   called   as    a    witness,    and

defendant had no opportunity to cross-examine. Thus, the testimony

violated defendant's constitutional rights.                      Id. at 348.         The

upshot of Bankston and Branch is that a police officer may not

suggest to the jury that he has incriminating information about

defendant, which information is not being shared with the jury.

       A   defendant     has   a   constitutional       right      to    confront    his

accusers.        U.S. Const. art. VI; N.J. Const. art. I, ¶ 10; Branch,

supra, 182 N.J. at 348. "The right of confrontation is an essential

attribute of the right to a fair trial, requiring that a defendant

have   a    'fair      opportunity   to    defend      against     the    [s]tate['s]

accusations.'"         Branch, supra, 182 N.J. at 348 (quoting State v.

Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124

S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)).                Accordingly, statements

made by non-testifying persons suggesting defendant is involved

in unlawful conduct are excluded unless admissible on some other

basis,     and    unless    defendant     had    the    opportunity       for    cross-

examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011) (citing

Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369,

158 L. Ed. 2d 177, 197 (2004)).                 They must be excluded if they

connect in some improper manner to the criminal prosecution being

tried.     Id. at 329.




                                           8                                    A-4211-15T1
         These principles are not violated, however, when an officer

explains, without excessive detail, the reason he approaches a

suspect or goes to the scene of a crime.             Bankston, supra, 63 N.J.

at 268; see also State v. Luna, 193 N.J. 202, 217 (2007).                    As a

result, an officer's explanation for his presence at the scene of

a crime based on "information received" is not improper.

         Thus the officer's explanation for going to the rear of the

apartment      complex   did       not    violate    defendant's   right       to

confrontation.      The guard's characterization of the vehicle did

not implicate defendant in the crime.                The officer's testimony

merely explained his presence.           His statement did not suggest that

police had superior knowledge outside the record which would

incriminate defendant, nor did it imply that he was the perpetrator

of   a    crime.    Hence,   the    admission   of    the   testimony   is    not

reversible error.

                                         III.

         During the sentencing hearing, the prosecutor stated that the

weapon recovered was loaded with six live rounds, and that in

addition to a round in the gun's chamber, four live rounds were

found in defendant's front right pants pocket.               In addition to a

juvenile record and disorderly persons convictions, defendant was

convicted of third-degree unlawful possession of a handgun in

2007.     Defendant was eligible for an extended term of twenty years


                                          9                             A-4211-15T1
with ten years of parole supervision but because the issue was not

raised when the matter was placed on the trial list, the State

limited its request to a ten-year sentence of imprisonment subject

to five years of parole ineligibility.

      The judge found defendant was subject to the Graves Act,

N.J.S.A. 2C:43-6(c).     He also found that defendant had been given

the benefit of probation, and had previously failed to complete

it.   In light of his criminal history, the judge found aggravating

factors 3, 6, and 9 and no factors in mitigation.           See N.J.S.A.

2C:44-1(a)(3), (6), and (9).        After weighing the factors, the

judge sentenced defendant to nine years subject to fifty-four

months of parole ineligibility.         The sentence does not shock our

conscience.      See State v. Roth, 95 N.J. 334, 363-64 (1984).

      Finally,     defendant's   claim    that   his   mention   to   the

presentence report author that he heard voices should have resulted

in a mental health evaluation lacks merit.         It does not warrant

discussion in a written decision.        R. 2:11-3(e)(2).

      Affirmed.




                                   10                            A-4211-15T1
