                        NOT FOR PUBLICATION WITHOUT THE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-0933-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEITH HARRIS,

     Defendant-Appellant.
_____________________________

              Submitted February 12, 2018 – Decided August 15, 2018

              Before Judges Sabatino, Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              14-10-1213.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stefan Van Jura, Deputy Public
              Defender II, of counsel and on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Olivia M. Mills,
              Assistant Prosecutor, of counsel and on the
              briefs).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Tried by a jury, defendant Keith Harris was convicted of

second-degree bribery in official and political matters, N.J.S.A.

2C:27-2(c), and third-degree financial facilitation of criminal

activity, N.J.S.A. 2C:21-25(b)(1).      His convictions arose out of

a scheme to smuggle contraband tobacco into the New Jersey State

Prison (NJSP) in Trenton.   Defendant was acquitted by the jury of

second-degree official misconduct, N.J.S.A. 2C:30-2.         The court

sentenced defendant to a five-year term of imprisonment with a

five-year period of parole ineligibility on the bribery offense,

concurrent   with   a   three-year    sentence   for   the   financial

facilitation offense.

     Defendant principally argues on appeal that the court denied

him his right of confrontation when a prosecution witness testified

about information he received regarding defendant's guilt.            As

defense counsel invited the testimony, we reject the argument, as

well as defendant's other points on appeal, and affirm.

                                 I.

     In the fall of 2013, defendant began work as a civilian

institutional trade instructor at NJSP.     He trained and monitored

inmates in food preparation.         Roughly eight months before he

started, the Department of Corrections banned tobacco from the

State's prison system.    A black market emerged, as inmates were

willing to pay a premium to obtain tobacco products.

                                 2                             A-0933-16T3
     To exploit the demand, then corrections officer Eric Dawson

and inmate Mitchell West developed a scheme to smuggle tobacco

into NJSP.      According to their plan, one of West's non-inmate

compatriots supplied Dawson with the tobacco outside the prison,

and paid him for his efforts.                 Dawson secreted the tobacco in

Ziploc bags to avoid detection as he entered the prison for his

shift.   Dawson then delivered the tobacco to West, who sold it to

inmates.

     Dawson was arrested on March 14, 2014, and agreed to cooperate

with law enforcement.        He admitted he received a Western Union

money order to purchase tobacco and pay himself.                 The money order

listed Lorenzo Blakeney as the sender.              Department of Corrections

Senior Investigator Raphael Dolce learned that Blakeney was an

approved visitor for inmate Roosevelt Withers.                Blakeney was also

on Withers' authorized phone list.

     Armed    with   a   warrant,       Dolce   scrutinized    Blakeney's      call

records.   He also monitored Withers' calls from prison.                  That led

Dolce to discover a woman outside prison, Tatiana Upshaw.                    Dolce

later observed Upshaw and defendant leave her residence.                     After

identifying    defendant     as     a    civilian    prison   employee,      Dolce

considered him a person of interest in his investigation.

     Blakeney    was     arrested       roughly   two   months    after   Dawson.

Blakeney also cooperated with law enforcement.                   He testified he

                                          3                                A-0933-16T3
assisted defendant and Withers in the tobacco smuggling scheme.

Blakeney testified that after Dawson was arrested, defendant was

recruited to take his place to smuggle tobacco into the prison.

       Dolce's testimony at trial lies at the heart of defendant's

appeal.    On cross-examination, defense counsel elicited that Dolce

and the prosecutor had reviewed materials in advance of trial.

Yet, Dolce insisted that he independently recalled the case.

Counsel specifically asked, "Can you recall which you would have

had your own recollection of, based on all of the search warrants,

all of the vehicles, all of the houses that you went through, all

of the surveillance, all of the tapes, all of the statements?"

       Dolce responded, "Can I give a line-by-line?     No, I can't,

but in general, certain Defendants that we arrested provided

statements, which implicated other people.         Certain Defendants

identified photographs of other Defendants, so those types of

events are more in-depth[.]"

       Still not satisfied, defense counsel asked which encounters

stood out.1    Dolce answered, "Not so much that they stood out.

It's just in general, if we have a Defendant who chose not to talk

to us, we didn't spend as much time with that person, whereas if

somebody that we arrested provided a statement and that statement



1
    The transcript states, "Are what stand out?"

                                  4                           A-0933-16T3
implicated other co-Defendants.          And that information was used to

corroborate the overall conspiracy, which was to corrupt staff to

smuggle items in, those types . . . ."

     Defense counsel then interjected, apparently to ask another

question: "Were, -- excuse me, Officer.         I don't mean to interrupt

you."   The trial judge then cautioned both attorneys that they

could not interrupt witnesses, except to interpose an objection:

          [Defense counsel], I'm going to tell everybody
          now on both sides; a witness cannot be
          interrupted while they're providing their
          testimony . . . I don't tolerate that in any
          of my trials . . . . Okay so I'm going to ask
          the witness to continue with his answer. . . .
          If there's an objection that you have or [the
          prosecutor] has to the answer, I'll deal with
          that objection. . . . I have to be able to
          get it out to be able to make my decisions as
          to what I need to do; okay?

     Defense   counsel   did   not   offer     an   objection,   and     Dolce

continued:

          Okay.   So what ended up happening is, in
          talking with all of the people that we either
          arrested or [against whom we] executed search
          warrants,   those   persons    who   provided
          information, which corroborated the scheme as
          we understood it, which was to smuggle
          contraband in through corrupt staff, we would
          spend more time with them.

          They were able to provide us additional
          information. They were able to authenticate
          phone conversations.

          They were able to sit there and to tell us,
          yes, this is the person I actually paid the

                                     5                                 A-0933-16T3
          money to or this is the person that I gave the
          contraband items, such as tobacco, to.

          And they were able to authenticate that the
          items were then subsequently [smuggled] into
          the prison because the co-defendant inmates,
          those that were the conspirators on the
          inside, had advised them that they had in fact
          received the items, whatever they happened to
          be.

     Dolce then referred to an unnamed officer who smuggled in

items, presumably Dawson, and to defendant.   Defense counsel would

later assert that Dolce meant that defendant was a smuggler, too.

Dolce stated:

          Because in this particular matter, there was
          an officer [who] smuggled in items, as well
          as the defendant, so what ended up happening
          is, we had a whole lot of information coming
          in.

          And when we spent time with various people,
          if one person was able to sit there and to
          provide information that corroborated the
          statements of others, that information was
          then correlated against, perhaps, phone
          conversations, which we knew occurred.

          Or if we had received receipts from Western
          Union, they told us that, I received money
          from people I didn't know and then I went and,
          at the request of an inmate, I then took that
          money and I transmitted it to somebody else
          at the request of the inmate.

          So we would spend more time with that person
          and as a result of that, I would remember those
          types of conversations, whereas somebody who
          didn't have a great role in it but nonetheless
          was involved because perhaps they laundered
          monies, I might not remember all of that.

                                6                           A-0933-16T3
           Or we searched a vehicle during a search
           warrant and we didn't recover anything in that
           vehicle,   which   was    relevant   to   that
           investigation; maybe I don't remember that
           specific thing.

           [(Emphasis added).]

     Defense counsel then requested a sidebar, at which he objected

that Dolce had asserted defendant carried tobacco into the prison,

and the record did not support the claim:

           Your Honor, I would move to strike the
           witness, his answer, and to have him barred
           from the trial at this time because he just
           made a statement to the jury that there is
           absolutely no evidence in the record, in the
           discovery that my client brought material into
           the jail.2

           And that is an entirely misleading and
           prejudicial comment when there's absolutely,
           one; no foundation but, two: no evidence
           provided by the State at all in any capacity.

Notably,   defense   counsel   did   not   object   to   Dolce's   repeated

references to hearsay statements from co-defendants and other

witnesses, nor did he object that Dolce's answer was a narrative.

     The prosecutor responded that Dolce did not express his own

opinion of defendant's guilt:

           I think there's certainly the inferences to
           be made that [defendant] moved tobacco into

2
  We surmise that defense counsel meant to say that "he just made
a statement to the jury, but there is absolutely no evidence in
the record, or in the discovery that my client brought material
into the jail . . . ."

                                     7                              A-0933-16T3
            the jail.   I didn't hear Investigator Dolce
            say anything to the extent that this
            particular Defendant smuggled in anything
            other than tobacco.

            He said there were other individuals who did
            and Eric Dawson testified yesterday that he
            smuggled in other items.

            So to the extent the Court wants to issue a
            cautionary   instruction,    that   may    be
            appropriate but I don't see any reason to bar
            Investigator Dolce from the trial or strike
            all of his testimony.

    The     judge   was   not   inclined    to   provide    a   cautionary

instruction:

            Well, what's the cautionary instruction you
            suggest I would issue? Because the testimony
            came, the testimony he presented and what's
            been presented to me is that it wasn't
            [defendant] involved in this.   There was a
            number of different people involved.    That
            clearly came out.

            I didn't hear him implying that it was
            [defendant] specifically doing this or that.
            He's providing an explanation, based on the
            question that you asked, as to why he recalls
            certain things versus others.

    Defense counsel reiterated his interpretation of Dolce's

testimony, and, after an exchange with the court, interposed the

objection that Dolce's answer was non-responsive.           The judge was

unpersuaded,   because    the   answer   responded   to   counsel's   broad

question.   The judge also noted that counsel did not object on the

grounds the answer was a narrative.


                                    8                              A-0933-16T3
          [Defense Counsel]: But, Judge, he specifically
          said that others and this Defendant brought
          contraband, tobacco, into the jail and there
          is no evidence of that.

          And I don't even believe        his   answer   is
          responsive to my question.

          The Court: Is there an objection then that the
          answer is non-responsive?

          [Defense Counsel]: Yes, Your Honor, but more
          than that, this; I attempted to interrupt him
          and Your Honor instructed me to allow him to
          go on . . .

          The Court: Because that's the problem.     You
          can, if you want a specific answer, than you
          have to frame the question, as you know. . . .
          You have to frame the question in the way to
          elicit the answer.    If the witness doesn't,
          then it's either non-responsive or the answer
          is a narrative . . . [Y]ou went on to ask him
          . . . how . . . do you . . . remember certain
          things more than others . . . that's what was
          behind your question.     So he gave you the
          answer that he gave you and he included a lot
          more. It just opened the door . . . for him
          to be able to respond the way he did.

     The State also relied on the testimony of other participants

in the smuggling scheme. Dawson testified about his participation.

Blakeney and Withers directly incriminated defendant.         Blakeney

testified he came into contact with defendant though Withers, who

gave Blakeney defendant's phone number.    Blakeney explained that

defendant did not want to deal with Western Union, to avoid the

paper trail.   In their first transaction, Blakeney gave defendant

cash at a face-to-face meeting.      Defendant then purchased the

                                 9                             A-0933-16T3
tobacco, while retaining a share of the money as his remuneration.

Withers, the inmate, confirmed that defendant succeeded in buying

the tobacco and smuggling it in.

     The    next   transaction      and    meeting   between     defendant   and

Blakeney did not proceed as smoothly, because defendant had car

problems.    Defendant agreed to accept a Western Union payment.

     Defendant     testified   on    his    own   behalf   and    claimed    that

Blakeney's payments were gambling winnings.            He explained that his

mother and sister lived in Newark, where his sister tended bar at

the local American Legion post.           He testified that he met Blakeney

there.   Blakeney ran a sports betting pool, in which a participant

could win $1000 or $2000 on a $1 or $2 bet.

     Defendant testified that on December 22, 2013, he won $2,000

in the pool. To claim his winnings, Blakeney agreed to send $1,000

via Western Union and to give him $1,000 cash when they next saw

each other in person.    But, Blakeney sent defendant $1,100 through

Western Union.      Defendant claimed he went to the Western Union

station in Newark that Blakeney used, to avoid paying a fee that

would be charged if he obtained payment elsewhere.                 He insisted

that his only contacts with Blakeney involved gambling.              Defendant

denied participating in smuggling tobacco into the prison.

     Defendant also called character witnesses who corroborated

defendant's claim that he bet on sports.

                                      10                                A-0933-16T3
                              II.

    Defendant raises the following issues for our consideration:

         POINT I

         THE CONVICTIONS MUST BE REVERSED BECAUSE
         DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT
         TO CONFRONT HIS ACCUSERS WHEN THE STATE'S
         PRIMARY INVESTIGATOR WAS PERMITTED TO TESTIFY
         ABOUT INCULPATORY EXTRA-RECORD INFORMATION
         FROM A HOST OF UNKNOWN WITNESSES. U.S. Const.
         Amend VI; N.J. Const. Art. 1, Par. 10.

         POINT II

         THE BRIBERY CONVICTION MUST BE REVERSED
         BECAUSE THE JURY WAS ERRONEOUSLY PERMITTED TO
         RETURN A GUILTY VERDICT BASED ON A VIOLATION
         OF AN OFFICIAL DUTY WHEN NO SUCH DUTY EXISTED.
         (Not Raised Below).

    In a separate pro se brief, defendant presents the following

additional points:

         POINT 1

         INDICTMENT WAS DEFECTIVE BECAUSE INDICTMENT
         WAS NOT A CONCISE NOR DEFINITE WRITTEN
         STATEMENT, AND CHARGED DEFENDANT WITH AN ACT
         THAT WAS NOT A CRIME WITHIN TIME-FRAME ON FACE
         OF INDICTMENT. THUS, BY LEAVING TO INFERENCE
         ALLEGED   PARTICULARS,   INDICTMENT    VIOLATED
         DEFENDANT'S RIGHTS UNDER 6TH & 14TH AMENDMENTS
         OF   U.S.   CONSTITUTION,   AND    ARTICLE   1,
         PARAGRAPHS 8, 9, 10 OF N.J. CONSTITUTION,
         ALONG WITH BOTH FEDERAL & STATE EX POST FACTO
         LAWS.      THEREFORE    CONVICTION    MUST   BE
         OVERTURNED.

         POINT 2

         CONVICTION ON COUNT 4, SHOULD BE MERGED WITH
         CONVICTION ON COUNT 3.

                              11                           A-0933-16T3
             POINT 3

             TRIAL COURT ERR[]ED WHEN IT ALLOWED USE OF
             LIMITED NUMBER OF RECORDED PHONE CONVERSATIONS
             WHICH PREJUDICED JURY AGAINST DEFENDANT IN
             VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL
             GUARANTEED   UNDER   BOTH   FEDERAL  &   STATE
             CONSTITUTIONS. THEREFORE CONVICTIONS MUST BE
             REVERSED AND NEW TRIAL ORDERED.      (Emphasis
             supplied).

             POINT 4

             INEFFECTIVE ASSISTANCE OF COUNSEL.     OVERALL
             PERFORMANCE OF COUNSEL REVEALS COUNSEL WAS NOT
             ACTING AS COUNSEL BUT HELPED PROSECUTION TO
             CONVICT    DEFENDANT.       THUS,    COUNSEL'S
             REPRESENTATION     WORKED    TO    DEFENDANT'S
             DISADVANTAGE, VIOLATING DEFENDANT'S RIGHTS
             UNDER 5TH, 6TH & 14TH AMENDMENT OF U.S.
             CONSTITUTION AND ARTICLE 1, PARAGRAPHS 8, 9,
             10 OF N.J. CONSTITUTION. THEREFORE CONVICTION
             MUST BE OVERTURNED AND NEW TRIAL ORDERED.

                                   III.

      Only one point on appeal deserves extended discussion: the

contention that Dolce's narrative on cross-examination violated

defendant's constitutional right of confrontation.              Relying on

State v. Branch, 182 N.J. 338 (2005), and State v. Bankston, 63

N.J. 263 (1973), defendant contends that "where the testimony of

a   police   officer   suggests   that    a   non-testifying   witness   has

provided evidence of the defendant's guilt, that testimony is

hearsay and violates a defendant's right to confrontation."




                                    12                              A-0933-16T3
     We review the trial court's evidentiary decisions for an

abuse of discretion.   State v. Scharf, 225 N.J. 547, 572 (2016).

Thus, we shall not set aside the trial court's ruling absent a

"clear error of judgment," or a "ruling so wide of the mark that

a manifest denial of justice resulted."    State v. Prall, 231 N.J.

567, 580 (2018) (citations omitted).   However, even if we find an

abuse of discretion "we must then determine whether any error

found is harmless or requires reversal."   Ibid.; see also R. 2:10-

2 ("Any error or omission shall be disregarded by the appellate

court unless it is of such a nature as to have been clearly capable

of producing an unjust result . . . .").

     The "'common thread'" of Bankston and Branch "is that a police

officer may not imply to the jury that he possesses superior

knowledge, outside the record, that incriminates the defendant."

Branch, 182 N.J. at 351.     Additionally, "the hearsay rule is

violated if the officer states or suggests that some other person

provided information that linked the defendant to the crime."

Ibid.

     Dolce's testimony certainly suggested that non-testifying

witnesses implicated defendant in the smuggling scheme.   However,

defendant invited this testimony by asking an open-ended question

on cross-examination, and then failed to interpose a timely, well-



                               13                           A-0933-16T3
founded objection.    Further, any error was harmless given the

other evidence of defendant's guilt.

     In response to defense counsel's open-ended question about

what Dolce recalled of his investigation, Dolce explained that

cooperating co-defendants stood out; they corroborated the overall

conspiracy "to corrupt staff to smuggle items" into the prison;

and they confirmed that the contraband entered the prison because

"the coconspirators on the inside, had advised them that they had

in fact received the items." Dolce testified "there was an officer

that smuggled in items, as well as the defendant."       (Emphasis

added).   Although the statement was arguably ambiguous, a listener

could reasonably have understood Dolce to convey, based on what

others told him, that defendant, as well as an officer, smuggled

items into the prison.

     However, in one significant respect, this case differs from

Bankston or Branch. Here, defense counsel elicited Dolce's hearsay

testimony.   "Strategic decisions made by defense counsel will not

present grounds for reversal on appeal."   State v. Buonadonna, 122

N.J. 22, 44 (1991).      The "invited error" doctrine "bar[s] a

disappointed litigant from arguing on appeal that an adverse

decision below was the product of error, when that party urged the

lower court to adopt the proposition now alleged to be error."



                                14                          A-0933-16T3
N.J. Div of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 340

(2010).3

     The doctrine has been applied where, as here, a defendant

claims that an investigating officer's testimony violated his

confrontation rights.    In State v. Kemp, 195 N.J. 136, 154 (2008),

the defendant argued that "'[t]he admission of specific hearsay

evidence regarding other information inculpating [defendant] as a

suspect denied him his right to . . . confrontation under both the

United States and New Jersey Constitutions.'" The Court disagreed,

explaining that "defense counsel specifically stated that the

State could inquire as to the bases for Det. Gregory's knowledge,

explaining that he saw 'no problem with that because I'm going to

go into it because I think it's clearly coming in.'"       Id. at 155.

The Court relied on the invited error doctrine to hold that there

was no violation of the Confrontation Clause.      Ibid.   Further, the

Court explained that "all of the sources who led Det. Gregory to

focus   on   defendant   testified    and   were   cross-examined      at

defendant's trial, thereby obviating defendant's Confrontation

Clause claim."   Ibid.   Finally, the Court held that even if Det.

Gregory's testimony implicated Bankston, "the totality of the


3
  Although the State did not expressly invoke the doctrine, it
adverted to its principles by arguing that defendant elicited
Dolce's answer and "opened the door" to a response about which he
now complains.

                                 15                             A-0933-16T3
circumstances . . . leads to the conclusion that the admission of

Det. Gregory's testimony . . . was harmless."                 Id. at 156.

       Federal    courts    agree        there     is   no   violation     of    the

confrontation      clause   if    the     defendant     elicits    the   offending

testimony.       In United States v. Parikh, 858 F.2d 688, 695 (11th

Cir.    1988),     "defense      counsel         elicited    hearsay     from    the

government's      witness,"      which    defendant      claimed   violated      his

confrontation rights.       The court held, "[T]he admission of out of

court statements by a government witness, when responding to an

inquiry by defense counsel, creates 'invited error.'"                    Ibid.     As

another federal court held, "If . . . defense counsel elicits

testimony at trial, the defendant can't argue on appeal that the

evidence was hearsay and should have been excluded." United States

v. Driver, 242 F.3d 767, 770 (7th Cir. 2001); see also United

States v. Cabrera, 201 F.3d 1243, 1248-49 (9th Cir. 2000).

       Consistent with Kemp and persuasive federal authority, we

conclude that, because counsel invited the hearsay testimony,

defendant did not suffer a violation of his confrontation rights.

       Furthermore, defense counsel did not interpose a timely,

well-founded objection.           "The right to confrontation may, of

course, be waived, including by failure to object to the offending

evidence."   Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3

(2009).    We find no basis in the record for defendant's argument

                                         16                                 A-0933-16T3
that the court precluded an objection.            The record reflects that

when defense counsel interrupted Dolce, he attempted to redirect

the witness with another question, beginning with the word "Were."

Counsel   did   not   address   the   court,     let    alone   articulate     an

objection that Dolce's answer included hearsay.

     At   sidebar,    defense   counsel    first    objected     on   discovery

grounds, a point defendant does not pursue before us.                 Upon the

court's   suggestion,    counsel      endorsed     an   objection     for   non-

responsiveness, but we discern no abuse of discretion in the

court's negative response, given the breadth of the question.

Notably, defendant never objected on the ground Dolce's answer was

a narrative, although his open-ended question invited a narrative

response.   See Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, cmt. 1 on N.J.R.E. 611 (2018) (stating that a trial

judge "may properly seek to narrow questions which might evoke

long narrative responses from the witness"); but see United States

v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992) (noting that Fed.

R. Evid. 611(a) authorizes judges to allow narrative testimony so

long as it is pertinent and material).4



4
 Narrative answers may be problematic because a witness may utter
something objectionable without giving counsel an opportunity to
enter a prior objection. However, a well-founded objection may
be raised after the narrative statement. See State v. Farrior,
14 N.J. Super. 555, 557-58 (App. Div. 1951).

                                      17                                A-0933-16T3
     In any event, any violation of defendant's confrontation

right was harmless.     "When evidence is admitted that contravenes

not only the hearsay rule but also a constitutional right, an

appellate court must determine whether the error impacted the

verdict."   State v. Weaver, 219 N.J. 131, 154 (2014).       The State's

case did not depend on Dolce's passing statement, in the midst of

a lengthy narrative.

     In   particular,   Dawson   testified   that    in   2013   he     began

smuggling tobacco into the New Jersey State Prison.         This alerted

the jury of the overall scheme before it heard from Dolce.             Dawson

gave much more detailed testimony than the portion of Dolce's

testimony about which defendant claims error. He explained exactly

how he got the tobacco into the prison and he discussed the players

involved, such as Blakeney.

     Blakeney   testified   that   defendant   was    involved    in       the

conspiracy, specifically identifying him.      He gave details of his

dealings with defendant, the amount of money he gave, the number

of times they met, and the purpose of the meetings.              Although

Blakeney had several prior felony convictions and was a cooperating

co-defendant, which defense counsel elicited, the jury obviously

found Blakeney more credible than defendant.

     Circumstantial evidence also implicated defendant.          The jury

learned that Dolce traced numerous phone calls from Blakeney and

                                   18                                 A-0933-16T3
Withers to defendant's girlfriend, Upshaw.           The Western Union

receipt was also signed by defendant and Blakeney.           In sum, we

reject defendant's argument that he is entitled to a new trial on

the ground that his Confrontation Clause rights were violated.

                                    IV.

     The remaining issues warrant little or no discussion.             The

State and defendant agree that defendant's conviction for third-

degree   financial   facilitation    of   criminal   activity,   N.J.S.A.

2C:21-25(b)(1), should merge with his conviction for second-degree

bribery, N.J.S.A. 2C:27-2(c).   However, the merger does not affect

the sentence.     On the second-degree bribery count, the court

imposed a five-year term, with a five-year period of parole

ineligibility as mandated by statute, see N.J.S.A. 2C:43-6.5.

Merger of the third-degree financial facilitation count, for which

defendant received a lesser three-year concurrent term, does not

affect defendant's aggregate sentence.

     Defendant also argues that he was denied effective assistance

of counsel as a result of defense counsel's cross-examination of

Dolce.   "Our Supreme Court has '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. Quixal, 431 N.J. Super.

502, 512 (App. Div. 2013) (quoting State v. Preciose, 129 N.J.

                                    19                            A-0933-16T3
451, 460 (1992)).      Therefore, we shall not pass on the potential

success of such claim, but leave it for a petition for post-

conviction relief if defendant chooses to file a future one.

      Furthermore,    we    reject      defendant's      contention       that      the

second-degree     bribery     conviction       must    be      reversed     because

defendant, as a civilian instructor, did not breach an official

duty.     One of the elements of second-degree bribery in official

or   political    matters    is   the    acceptance      of      "any   benefit       as

consideration for violation of an official duty of a public servant

or party official."        N.J.S.A. 2C:27-2(c).          Defendant admitted at

trial that smuggling tobacco would violate one of his official

duties.     The jury was free to conclude, based on the evidence

presented,     that   defendant      was     dutibound      to    observe       prison

regulations,     although    he   was    not   directly       involved    in     their

enforcement.

      Defendant's remaining arguments lack sufficient merit to

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

      Affirmed as to the conviction.            Remanded for correction of

the judgment of conviction.




                                        20                                     A-0933-16T3
