                        NOT FOR PUBLICATION WITHOUT THE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-0818-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HARRY J. NEHER, a/k/a JOHN NEHER,

     Defendant-Appellant.
__________________________________

              Submitted December 4, 2017 – Decided June 7, 2018

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Indictment
              No. 13-09-0902.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jay L. Wilensky, Assistant
              Deputy Public Defender, of counsel and on the
              briefs).

              Charles A. Fiore, Acting Gloucester County
              Prosecutor, attorney for respondent (Douglas
              B. Pagenkopf, Special Deputy Attorney General/
              Acting Assistant Prosecutor, on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Harry J. Neher appeals his convictions following a

jury trial and aggregate forty-year sentence for first-degree

murder,    tampering   with   evidence,     hindering    apprehension     and

weapons offenses.      Based on our review of the evidence in light

of the applicable law, we affirm defendant's convictions, vacate

his sentence and remand for resentencing.

                                    I.

     On December 31, 2012, Sabrina Bullock's lifeless body was

discovered in a storage shed behind defendant's apartment building

in Woodbury.   Bullock was found with a computer keyboard cord tied

around her neck, and it was later determined she died as a result

of blunt force head and neck trauma.

     Defendant,    a   self-employed       electronics    technician,     was

subsequently   arrested    and   charged    in   an   indictment   with   the

following offenses:      knowing or purposeful murder, N.J.S.A. 2C:11-

3(a)(1) (count one); possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count two); tampering with evidence,

N.J.S.A.    2C:28-6(1)     (count   three);      hindering   apprehension,

N.J.S.A. 2C:29-3(b)(1) (count four); and unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d) (count five).

     The evidence presented at defendant's trial showed that on

December 30, 2012, Bullock was reported missing by her mother,

Maggie Bullock, who last spoke with Bullock at around 5:30 p.m.

                                    2                                A-0818-15T4
the previous day.         Maggie Bullock went to defendant's apartment

to look for her daughter because she had previously seen Bullock

and defendant together.           Later in the day, Maggie Bullock spoke

with defendant on the phone and defendant asked, "[W]hat do you

think, I killed [Bullock]?"

      Defendant and his then-girlfriend Kelly Gall lived in an

apartment building on Broad Street in Woodbury and often bought

drugs from Bullock.        Based on information received from Bullock's

mother,     on     December    30,     2012,      Woodbury         Patrolman      Andrew

DiGiambattista went to defendant's apartment seeking information

concerning Bullock's whereabouts.                 Defendant said he had seen

Bullock the previous evening at "[a]pproximately [eight] p.m.,"

and   spoke      with   Bullock   about    assisting         her   with    her    laptop

computer.

      Police used information obtained from Bullock's cell phone

carrier   to     trace   Bullock's     phone      to    the    parking     lot    behind

defendant's       apartment.      On   December        31,    2012,   DiGiambattista

investigated the parking lot, and found Bullock's body inside a

storage shed.       She "appeared to have full rigor mortis and . . .

was cold to the touch." DiGiambattista also observed "a [keyboard]

cord wrapped around her neck."

      During      DiGiambattista's        trial    testimony,         he   identified

photographs depicting the shed as he observed it on December 31,

                                          3                                      A-0818-15T4
2012.   Following an objection by defense counsel, DiGiambattista

acknowledged he did not take the photographs.               In response to

questions posed by the court, however, he testified he was present

when some of the photographs were taken and that all of the

photographs accurately depicted the scene in the shed as he

observed it.

     Detective   Nicholas   Schock       took   the   photographs   and   also

testified they accurately depicted the scene in the shed.                   He

identified photographs showing "footwear impressions that [were]

made in blood" around the victim and "a keyboard that was found

underneath [Bullock] with the cord" wrapped around her neck.

Schock also took photographs of defendant's apartment, tested

areas of the bathroom he believed might contain suspected blood

and swabbed a blood sample from the bathroom sink.            A crime scene

investigator testified he removed a section from the shed's floor

that appeared to contain evidence of "footwear impressions."

     The evidence also showed two trash bags containing clothing

were recovered during the investigation: one from a dumpster behind

defendant's apartment, and another from a trash corral located

near the apartment.   The bag recovered from the dumpster contained

a black hooded jacket, a ski mask, a pair of sneakers, blue knit

gloves, a green hooded sweatshirt and a black Airwalk T-shirt.

Schock testified the sneakers were a men's size ten and a half,

                                     4                               A-0818-15T4
and had a distinctive "jagged" tread sole pattern.        The bag

recovered from the trash corral contained household garbage, a

pill bottle prescribed to Gall, and two pairs of sweatpants, one

of which contained areas with suspected blood.

     The State presented evidence showing comparisons between

defendant's DNA, Bullock's DNA, and DNA obtained from the clothing

found in the bags recovered from the dumpster and trash corral.

Bullock's DNA was obtained through the use of a sexual assault

evidence collection kit, which in part included the taking of a

blood sample from Bullock's body.

     An expert in forensic serology and biological stain analysis

testified that blood was recovered and tested from one of the

sneakers, and the sweatshirt and jacket recovered from the bag

found in the trash corral.     An expert in DNA testing analysis

testified that the DNA found on the sweatshirt contained a mixed

DNA profile, with Bullock as the major contributor and defendant

as the minor contributor.    The expert further explained that the

DNA found on a second sweatshirt sample also contained a mixed

profile, and that defendant's DNA was the source of the major DNA

profile found.

     The expert also determined that one of the DNA samples from

the jacket showed a mixed DNA profile, with the victim as the

major contributor and defendant as the minor contributor.       The

                                 5                         A-0818-15T4
expert explained that the second DNA sample from the jacket

revealed three contributors, with defendant as the source of the

major DNA profile.

     An expert in footwear impression analysis testified that she

conducted test impressions of the sneakers recovered from the bag

found in the dumpster, and compared them to the impressions

developed from the shed's flooring.           Defendant objected to the

expert's testimony concerning photographs of the impressions used

during   the    analysis   because   the    expert   had    not   taken   the

photographs.     The court questioned the expert, and she explained

that the photographs accurately depicted the impressions and the

flooring.      Defendant's counsel indicated he was satisfied, and

there was no further objection to the testimony.

     The expert opined that eight of the twenty-two impressions

from the shed's floor shared a similar "chevron" or "zig[-]zag"

pattern as the soles of the recovered sneakers.               She testified

that eight of the other impressions did not include sufficient

characteristics     to     provide   a     basis   for     comparison,    and

acknowledged the possibility that other impressions did not come

from the recovered sneakers.

     The State presented testimony from an expert in forensic

pathology that Bullock suffered a "half inch fracture in the right

side and . . . a quarter inch fracture in the left side of the

                                     6                               A-0818-15T4
neck."     Bullock also suffered from "compression of the neck or

blunt trauma to the neck" which indicated her neck "was either

squeezed" or there was a blow to her neck causing a hemorrhage.

The expert testified Bullock "died of blunt head and neck trauma

that caused bleeding around the membranes of the brain and bleeding

within the brain.     Additionally there was hemorrhage in the neck

organs indicating blunt neck trauma with possible compression."

     Defendant testified at trial that he knew Bullock because he

bought drugs from her.     He explained she came to his apartment

during the morning hours of December 29, 2012, and later he fought

with Gall because she believed he was "cheating on her" with

Bullock.    He testified that during the day, Gall called Bullock

and argued with her over the phone.

     Defendant testified he called Bullock at around 7:40 p.m. to

see if he could buy marijuana, and Bullock came to the apartment

a short time later.     According to defendant, he and Bullock left

the apartment and went outside to smoke marijuana.     He returned

to the apartment alone to obtain a cellphone for Bullock and while

he looked around the apartment, he saw Gall in the bathroom wearing

an "Airwalk t-shirt" washing blood off her hands.     He saw blood

on Gall's forehead, and when he told her he was going outside to

meet Bullock, Gall pushed him causing him to injure his thumb.



                                  7                         A-0818-15T4
     Defendant explained that he prepared to leave the apartment,

put on his jacket and noticed blood on his hand.   He said he asked

Gall to see her hands but did not see any cuts, and that is when

he "found out that it was [Bullock's] blood and that [Gall] had

attacked [Bullock]."     Defendant did not explain what caused him

to reach that conclusion.

     Defendant denied killing Bullock, but admitted taking clothes

Gall placed into the plastic bag and putting the bag in the trash

corral.     He admitted the sneakers had been given to him by Gall,

but said he did not wear them because they were too small.         He

denied wearing the jacket and sweatshirt found in the bag on the

day of the murder.      He admitted he disposed of the bag in the

trash corral, and Gall cleaned their apartment.

     Defendant testified that Gall placed the other bag in the

dumpster.    He admitted the bag contained clothes that he wore on

the day Bullock was murdered.     He testified he found out Bullock

was murdered on December 31, 2012, but also stated that on December

30, 2012, he knew Bullock was in the shed.    On cross-examination,

defendant "admit[ed] that [he] tried to cover up a crime, but

. . . didn't commit the murder."

     Gall testified as a rebuttal witness for the State.         She

explained that she knew Bullock because she and defendant bought

drugs from her.     Gall denied believing defendant was cheating on

                                  8                         A-0818-15T4
her   with   Bullock,    and    testified   she   knew   defendant    went    to

Bullock's house on occasion to fix her computer.             Gall said that

on the evening of December 29, 2012, defendant returned to their

apartment and asked for assistance because he "got jumped."                  She

saw defendant take off his clothes and put them in a plastic bag.

He then said he was going to the hospital and left the apartment

with the plastic bag.          Gall denied any involvement in Bullock's

murder.

      The jury found defendant guilty on each of the charges in the

indictment.       At   defendant's   sentencing    proceeding,   the     court

imposed a forty-year sentence with "a parole ineligibility period

of    [thirty]     years,"     for   defendant's     first-degree       murder

conviction.      The court merged defendant's conviction for tampering

with evidence with his conviction for hindering apprehension, and

sentenced defendant to a term of eighteen months on those charges.

The court also merged defendant's convictions for the two weapons

offenses, and sentenced defendant to eighteen months.                The court

ordered that the sentences be served concurrently.

      At a subsequent resentencing hearing, the court explained

that it erred in its imposition of the parole ineligibility period

for the sentence on the murder conviction.           The court stated that

the sentence imposed for the murder conviction was subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and therefore

                                      9                                A-0818-15T4
modified that sentence to include an eighty-five percent period

of   parole   ineligibility    and    a    five-year   period   of    parole

supervision as required under NERA.

     Defendant   appealed     from   the   judgment    of   conviction    and

presents the following arguments for our consideration:

          POINT I

          THE TRIAL COURT ERRED PREJUDICIALLY IN
          ADMITTING EVIDENCE OF A RAPE KIT TAKEN OF THE
          VICTIM IN THE ABSENCE OF ANY EVIDENCE OR
          ALLEGATION OF SEXUAL ASSAULT.

          POINT II

          THE    PROSECUTOR   COMMITTED    PREJUDICIAL
          MISCONDUCT, NECESSITATING REVERSAL, [U.S.
          Const. amend. XIV]; [N.J. Const. art. I, ¶¶
          9, 10]. (NOT RAISED BELOW)

                 A. State's Opening Statement

                     1. The Opening Constituted a
                        Repeated Declaration of
                        Guilt.

                     2. The Opening Was Overly
                        Inflammatory.

                     3. The Opening Was Improperly
                        Argumentative.

                 B. State's Summation

                 C. These Improprieties Constituted
                    Plain Error.

          POINT III

          THE   TRIAL  COURT   ENGAGED  IN   EXCESSIVE
          QUESTIONING OF WITNESSES, TO THE DEFENDANT'S

                                     10                              A-0818-15T4
           PREJUDICE.   [U.S. Const. amend. XIV]; [N.J.
           Const. art. I, ¶¶ 9, 10]. (NOT RAISED BELOW).

           POINT IV

           THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE,
           NECESSITATING REDUCTION.

     In a supplemental pro-se brief, defendant further argues:

           POINT I

           THE    PROSECUTOR   COMMITTED    PREJUDICIAL
           MISCONDUCT, NECESSITATING REVERSAL.    [U.S.
           Const. amend. XIV]; [N.J. Const. art. I, ¶¶
           9, 10].

           POINT II

           THE TRIAL COURT ERRED           WHILE     DELIVERING
           INSTRUCTIONS TO THE JURY.

           POINT III

           THE CUMULATION OF CERTAIN        ERRORS       DEPRIVED
           DEFENDANT OF A FAIR TRIAL.

                                     II.

                                     A.

     Defendant first argues the court erred by allowing testimony

that a sexual assault evidence collection kit was utilized to

collect evidence from Bullock's body, and that the results of the

testing   did   not   reveal   any   evidence   of   a    sexual    assault. 1

Defendant argues the testimony was irrelevant because there was


1
   Defendant does not argue that the evidence obtained from the
use of the kit, such as Bullock's blood sample and resulting DNA
profile, was improperly admitted into evidence.

                                     11                               A-0818-15T4
no allegation or evidence Bullock was the victim of a sexual

assault,     and   highly      prejudicial      because           it     unnecessarily

introduced the specter of sexual assault into the case, producing

revulsion toward defendant and sympathy for Bullock.                       We are not

persuaded.

      "[C]onsiderable       latitude    is    afforded        a    trial     court     in

determining whether to admit evidence, and that determination will

be reversed only if it constitutes an abuse of discretion."                       State

v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted).                           "In

light   of   the   broad    discretion      afforded    to        trial    judges,     an

appellate      court    evaluates      a      trial      court's           evidentiary

determinations with substantial deference."                   State v. Cole, 229

N.J. 430, 449 (2017).          "Under that standard, an appellate court

should not substitute its own judgment for that of the trial court,

unless 'the trial court's ruling was so wide of the mark that a

manifest denial of justice resulted.'"           Kuropchak, 221 N.J. at 385

(citations omitted).        We apply those standards here.

      "The fundamental principle guiding the admission of evidence

is   relevance."       State   v.   Weaver,    219     N.J.       131,    149   (2014).

Evidence is relevant if it has "a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action."     N.J.R.E. 401. Nevertheless, even "relevant evidence may

be excluded if its probative value is substantially outweighed by

                                       12                                       A-0818-15T4
the risk of (a) undue prejudice, confusion of issues, or misleading

the   jury    or   (b)   undue      delay,     waste    of   time,      or       needless

presentation of cumulative evidence."               N.J.R.E. 403.

      We find no abuse of discretion in the court's admission of

the experts' testimony about the use of the sexual assault kit and

the results of their findings from the kit, including the absence

of sperm or any other indicia of a sexual assault.                   The testimony

established facts of consequence: law enforcement's comprehensive

investigation of the potential circumstances surrounding Bullock's

murder and the processes used to obtain the DNA evidence that

inculpated defendant.         Defendant and Bullock's mixed DNA profiles

in the blood found on the clothing directly linked defendant to

Bullock's murder.        Bullock's DNA was obtained from the use of the

sexual assault kit.

      Defendant      argues   the    witnesses'        reference     to      a   "sexual

assault kit" and the evidence showing Bullock was tested for

physical     evidence    of   sexual      assault      was   unnecessary,          unduly

prejudicial    and    diverted      the   jury's    attention      by     introducing

sexual assault into the case.              The record does not support this

contention.     There was no allegation of sexual assault, defendant

was not charged with sexual assault and the testimony established

there was no evidence of a sexual assault.                     The only evidence

obtained from the use of the kit was Bullock's blood and the

                                          13                                      A-0818-15T4
resulting DNA profiles.          Indeed, on cross-examination of one of

the State's experts, defense counsel ably obtained an unequivocal

admission that the use of the kit yielded no evidence of a sexual

assault.     Defendant makes no showing that the testimony confused

the   jury   or    diverted    its   attention     from    the    charges    in   the

indictment.        We   therefore    find    no    basis   to    depart    from   the

"substantial deference" we pay "to the trial court's 'highly

discretionary determination.'"          State v. Cook, 179 N.J. 533, 568

(2004).

      Moreover, even if it was error to permit the experts to refer

to the "sexual assault kit," the error was harmless.                      R. 2:10-2.

The evidence showing defendant's guilt was overwhelming, and based

on our review of the record, we are convinced that admission of

the testimony, even if error, was not clearly capable of producing

an unjust result.        R. 2:10-2; State v. R.B., 183 N.J. 308, 328

(2005).

                                        B.

      Defendant next argues a reversal is required because the

prosecutor    engaged     in   misconduct     in    his    opening   and     closing

arguments.        More specifically, defendant claims that during the

prosecutor's opening statement, he repeatedly declared defendant's

guilt, used inflammatory language to attack defendant and create

sympathy for Bullock and was improperly argumentative.                     Defendant

                                       14                                    A-0818-15T4
further contends that during summation, the prosecutor denigrated

defendant,    expressed         impermissible    personal   opinions     about

defendant's credibility and the evidence and made misstatements

about the evidentiary record.

     "A prosecutor must 'conscientiously and ethically undertak[e]

the difficult task of maintaining the precarious balance between

promoting justice and achieving a conviction,' ensuring that at

all times his or her 'remarks and actions [are] consistent with

his or her duty to ensure that justice is achieved.'"              State v.

Jackson,    211   N.J.   394,     408   (2012)   (alterations   in original)

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).

     "Notwithstanding the high standard to which a prosecutor is

held as he or she gives an opening statement or summation, 'not

every     deviation      from     the    legal   prescriptions    governing

prosecutorial conduct' requires reversal."           Id. at 408-09 (quoting

Williams, 113 N.J. at 452).          "Prosecutorial misconduct is a basis

for reversal of a criminal conviction if the conduct was so

egregious that it deprived the defendant of the right to a fair

trial."    State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State

v. Josephs, 174 N.J. 44, 124 (2002)).

     In reviewing a claim of prosecutorial misconduct, a reviewing

court considers: "whether 'timely and proper objections' were

raised; whether the offending remarks 'were withdrawn promptly';

                                        15                             A-0818-15T4
. . . whether the trial court struck the remarks and provided

appropriate instructions to the jury . . . [and] whether the

offending remarks were prompted by comments in the summation of

defense counsel."   State v. Smith, 212 N.J. 365, 403-04 (2012)

(citations omitted).

          Generally, if no objection was made to the
          improper remarks, the remarks will not be
          deemed prejudicial. Failure to make a timely
          objection indicates that defense counsel did
          not believe the remarks were prejudicial at
          the time they were made. Failure to object
          also deprives the court of the opportunity to
          take curative action.

          [State v. Timmendequas, 161 N.J. 515, 576
          (1999) (citations omitted).]

Measured against these standards, we find no basis to reverse

defendant's convictions based on the prosecutor's alleged improper

statements.

     Defendant argues the following comments in the prosecutor's

opening constituted impermissible statements about defendant's

guilt:

          Who you will not see in this courtroom is []
          Bullock.   She will not be here to tell you
          what happened on December 29, 2012. And I get
          to introduce to you her, who [] Bullock was
          before this man right here got to her.

               . . . .

          Ladies and gentlemen, let me reintroduce you
          to the person who did this. This killer right
          there, take a look at him.

                               16                          A-0818-15T4
                    . . . .

            [T]he police in this case did locate that
            evidence he attempted to discard, and it was
            found.

            And but for that being found he possibly could
            have gotten away with murder.

                    . . . .

            Ladies and gentlemen, this man's a killer,
            right here. He is a murderer, and the State
            intends to prove that.

     A prosecutor has great leeway in his or her opening comments.

See id. at 692.       Our review of a prosecutor's opening statement

"is two-fold: whether the prosecutor committed misconduct, and,

if so, 'whether the prosecutor's conduct constitutes grounds for

a new trial.'"        State v. Wakefield, 190 N.J. 397, 446 (1994)

(quoting State v. Smith, 167 N.J. 158, 181 (2001)).          In order to

satisfy the second prong of that test, a prosecutor's misconduct

"must have been 'so egregious that it deprived defendant of a fair

trial.'"   Ibid.     To warrant a new trial, the prosecutor's comments

"must have substantially prejudiced defendant's fundamental right

to have a jury fairly evaluate the merits of his defense."          Ibid.

     We    reject    defendant's   contention   that   the   prosecutor's

statements were impermissible or require a reversal.            Defendant

relies on select statements but fails to properly consider them

in their context.       The prosecutor made each statement as part of


                                    17                            A-0818-15T4
a broader and permissible message that the State intended to prove

defendant was a murderer, and not that the prosecutor was declaring

defendant as such.

     For    example,   after   calling    defendant    the   "killer     right

there," the prosecutor stated: "Now you may be wondering . . .

[w]hat proof do you have?" and explained in detail the evidence

the State would present to establish defendant killed Bullock.

The prosecutor's explanation of how he intended to prove defendant

was the killer is not only within the bounds of permissible

conduct, but is also what an opening statement is intended to be.

See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004) ("A

prosecutor's    opening   statement      should   provide    an   outline     or

roadmap of the State's case.       It should be limited to a general

recital of what the State expects, in good faith, to prove by

competent evidence."      (quoting State v. Torres, 328 N.J. Super.

77, 95 (App. Div. 2000))).

     At all times during his opening statement, the prosecutor

reminded the jury of what he intended to prove, using phrases such

as "You'll be able to see," "You'll hear from those individuals,"

and "the State [] expects to present to you," certain types of

evidence.    The prosecutor also made clear that the State "must

prove" defendant murdered the victim beyond a reasonable doubt,

and that "it intend[ed] to prove that."           Thus, when considered in

                                   18                                  A-0818-15T4
context, we discern no intention by the prosecutor to declare

defendant's guilt.

      Moreover, defendant did not object to any of the prosecutor's

declarations during the opening statement.                        To the contrary,

defense counsel began his opening statement by properly reminding

the   jury     that,    in    accordance        with      the   court's    preliminary

instructions,     "what       is    said   in   an     opening    statement    is   not

evidence," and that "[a]nything [the prosecutor] just said [is

not] evidence."

      Defendant's reliance on State v. Rivera, 437 N.J. Super. 434

(App.   Div.    2014),       is    misplaced.        In    Rivera,   the    prosecutor

explicitly declared the defendant's guilt by using a PowerPoint

presentation in his opening statement that showed "a photograph

[of the] defendant's face and neck, which [was] displayed with a

bright red border." Id. at 447. "It also include[d] text, printed

in the same color and density, 'Defendant GUILTY OF: ATTEMPTED

MURDER.'     The words 'Defendant' and 'GUILTY OF:' appear[ed] on

separate lines to the right of [the] defendant's photograph, and

'ATTEMPTED MURDER' appear[ed] below the photograph in much larger

typeface."      Ibid.

      The prosecutor in Rivera explicitly declared the defendant's

guilt by listing the words "guilty of" next to "attempted murder."

Ibid.   In reversing the defendant's convictions, we recognized

                                           19                                  A-0818-15T4
that "[o]ur Supreme Court "has consistently condemned conduct that

invades the exclusive province of the jury to resolve factual

disputes,    assess    credibility      and   decide   whether    the   State's

evidence establishes guilt."         Id. at 449 (citations omitted).           We

found     "[i]t   is   difficult   to     conclude     that   a   prosecutor's

declaration of the defendant's guilt before the first witness is

sworn would not have invaded the province of the jurors."                Id. at

450.2

        Here, the prosecutor's comments do not rise to the same level

or degree as those employed by the prosecutor in Rivera.                  There

was no declaration of defendant's guilt, and the prosecutor's

comments were accompanied by an acknowledgment that the State had

the burden of proving the elements of the offenses charged and a

description of the evidence which the prosecutor intended to

introduce to satisfy that burden.             See State v. Hipplewith, 33

N.J. 300, 311 (1960) (explaining it is improper for a prosecutor




2
    Our decision in Rivera did not turn exclusively on the
prosecution's use of the PowerPoint presentation during its
opening. The prosecutor also used the PowerPoint presentation in
summations and "included statements about the law of self-defense
that were so oversimplified as to be misleading." Id. at 463.
Thus, we were also concerned with the jury's "capacity to follow
[the trial judge's] instructions." Id. at 464 (citations omitted).
We reversed based on the "cumulative impact of the prosecutor's
misconduct." Id. at 465.

                                     20                                 A-0818-15T4
to state, explicitly or implicitly, his or her personal belief of

a defendant's guilt unless it is based on the evidence).

     Moreover, even if the prosecutor's statements were improper,

they did not deprive defendant of a fair trial, Wakefield, 190

N.J. at 467, and the lack of any objection to the statements may

be properly viewed as an acknowledgement they were not prejudicial,

See State v. Frost, 158 N.J. 76, 83 (1999) (holding generally,

"remarks will not be deemed prejudicial" if no objection was made

at trial); see also State v. Abdullah, 372 N.J. Super. 252, 267-

68 (App. Div. 2004) ("Where, as here, the defendant's lawyer fails

to object at trial, we may legitimately infer that counsel did not

consider the remarks inappropriate or prejudicial."), aff'd in

part, rev'd in part on other grounds, 184 N.J. 497 (2005).

     We also reject defendant's assertion that the prosecutor's

opening statement was overly inflammatory based on his description

of how Bullock appeared when her body was found:

          The [] Bullock that you'll see? She's bloody,
          beaten, swollen, with her lifeless body
          propped on a keyboard with its cord wrapped
          around her neck . . . .

          [The State] took photographs of [defendant's]
          hands . . . .

          I'm going to leave those pictures for you to
          judge.    You can evaluate them.      You can
          evaluate if they are bruises on his hands and
          if it's consistent with being involved in this
          brutal, vicious murder of [] Bullock.

                               21                            A-0818-15T4
     "A prosecutor may summarize the State's case graphically and

forcefully."      State v. W.L., 292 N.J. Super. 100, 110 (1996).                At

the same time, however, a prosecutor "may not make 'inflammatory

and highly emotional' appeals which have the capacity to defer the

jury from a fair consideration of the evidence of guilt."                     Id. at

111 (quoting State v. Marshall, 123 N.J. 1, 161 (1991)).

     We have not hesitated to criticize rhetorical excesses by

prosecutors that invite juror sympathy for the victim.                 See, e.g.,

State   v.     Roman,    382   N.J.    Super.   44,   58-59   (App.   Div.    2005)

(criticizing prosecutor's remarks that it was the duty of adults,

including the jurors, to protect the child victim); State v.

Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same);

State     v.     Hawk,     327     N.J.     Super.    276,    282     (App.    Div.

2000) (suggestions that the jury "send a message" through its

verdict,       "were     inappropriate, inflammatory          and   constitute[d]

misconduct").           Contrary      to   defendant's   claim,     however,    the

prosecutor's comments were not "calculated to arouse sympathy for

the victim and hate and anger against the defendant," like the

comments we determined required a reversal in W.L., 292 N.J. Super.

at 111.      In W.L., the prosecutor commented on the innocence of all

children generally, the effects of the crime on the victim's

family, and advised the jury that if it found the State has proven


                                           22                             A-0818-15T4
its case it had a "strong duty to find him guilty."                     Id. at 105-

09.

      Here, the prosecutor provided nothing more than a brief and

accurate description of Bullock's body as it appeared when it was

discovered, coupled with a preview of the evidence that would be

presented to establish the body's condition.                     The prosecutor's

description was graphic, but there was no objection, and the

description was neither impermissible, see W.L., 292 N.J. Super.

at 110-11, nor capable of depriving defendant of a fair trial, see

Wakefield, 190 N.J. at 443.

       We       similarly       reject   defendant's      contention     that    the

prosecutor's opening statement was unduly argumentative.                    We find

no support in the record for defendant's reliance on State v.

Spano,     64    N.J.    566,    567   (1974),   where    the   Court   reversed    a

defendant's conviction because the prosecutor interrupted defense

counsel's opening statement and declared the defendant had an

opportunity to appear before the grand jury and testify, but did

not   do    so.         The   Court    determined   the    prosecutor's     comment

constituted a declaration that the defendant would have testified

if he was innocent, but was guilty because he did not.                      Id. at

567-68.     The prosecutor made no comparable remarks here.




                                          23                                A-0818-15T4
                                      C.

       Defendant    further     contends     the     prosecutor     committed

prosecutorial misconduct by misstating facts in support of his

argument defendant was not credible and by stating defendant was

a liar. Although we agree the prosecutor's comments were improper,

we are not convinced they were sufficiently prejudicial to have

deprived defendant of a fair trial.

       We consider the propriety of a prosecutor's comments during

summation   under    a   standard    similar    to   that   applied   in   our

consideration of comments made during opening statements.                     A

prosecutor is "entitled to wide latitude in his [or her] summation

. . . [s]o long as he [or she] stays within the evidence and the

legitimate inferences therefrom."          R.B., 183 N.J. at 330 (quoting

State v. Mayberry, 52 N.J. 413, 437 (1968)).

       In our determination of the propriety of a prosecutor's

summation, we consider "whether 'timely and proper objections'

were   raised;     whether    the   offending   remarks     'were   withdrawn

promptly'; and whether the trial court struck the remarks and

provided appropriate instructions to the jury."             Smith, 212 N.J.

at 403 (internal citation omitted) (quoting Frost, 158 N.J. at

83).   If prosecutorial misconduct occurred and the comments "were

sufficiently egregious, a new trial is appropriate, even in the



                                      24                              A-0818-15T4
face of overwhelming evidence" of a defendant's guilt.                     Id. at

404.

       "Whether particular prosecutorial efforts can be tolerated

as vigorous advocacy or must be condemned as misconduct is often

a   difficult   determination       to    make.      In    every   instance,     the

performance must be evaluated in the context of the entire trial,

the issues presented, and the general approaches employed."                    State

v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002).                 "To justify

reversal, the prosecutor's conduct must have been clearly and

unmistakably improper, and must have substantially prejudiced

[the] defendant's fundamental right to have a jury fairly evaluate

the merits of his [or her] defense."                State v. Nelson, 173 N.J.

417,   460   (2002)   (alterations        in    original)    (quoting    State    v.

Papasavvas, 163 N.J. 565, 625 (2000)).

       Defendant    argues     he   was       improperly    denigrated    by     the

prosecutor's       comments    concerning         defendant's      statements     to

Bullock's mother when she asked if he had seen Bullock after

Bullock went missing.         The prosecutor told the jury:

             [W]hat type of ruthless individual will look
             a mother who's looking for her daughter in the
             eye when he knows, he knows she's dead. He
             knows she's dead and he didn't tell her. He
             knows it.

             And not only did he not tell her, Taylor
             Bullock was there too, her poor daughter. He
             looked her in the eye too. They're looking

                                         25                               A-0818-15T4
               for [the victim] . . . and he knows. Ladies
               and gentlemen, that is not a character trait
               of someone who just covers a crime up. That
               is a character trait of a murderer. That is
               a character trait of someone who kills a
               wom[a]n and tries to take another one down
               while doing it. That's what he is.

      We       have    criticized     a     prosecutor's         use       of     derogatory

statements about a defendant, see, e.g., Wakefield, 190 N.J. at

467; State v. Pennington, 119 N.J. 547, 576-77 (1990), and the

prosecutor's references to defendant as "ruthless" and having a

"character trait of a murderer" were improper comments having no

place    in     defendant's    trial.         However,      we      must     evaluate     the

challenged remarks in the context of the "summation as a whole."

State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008)

(citation omitted).

      Here,      the    prosecutor's        comments   were      fleeting,         and    made

during     a    summation     that    otherwise        detailed        the       substantial

evidence       supporting     the    determination        of     defendant's          guilt.

"Generally, . . .         a 'fleeting and isolated' remark is not grounds

for reversal."          Gorthy, 226 N.J. at 540 (quoting State v. Watson,

224 N.J. Super. 354, 362 (App. Div. 1988)).                         Moreover, "[w]hen,

as   here,      the    defendant     does    not   object      to    the        prosecutor's

statement,       that    statement     does      not   warrant       reversal        of   the

conviction unless it is 'of such a nature as to have been clearly

capable of producing an unjust result.'"                  Ibid. (quoting R. 2:10-

                                            26                                       A-0818-15T4
2); accord State v. Echols, 199 N.J. 344, 360 (2009).                    We are

therefore     satisfied      that   the     improper     comments      did    not

"substantially prejudice[] . . . defendant's fundamental right to

have a jury fairly evaluate the merits of his . . . defense."

State v. Ingram, 196 N.J. 23, 43 (2008).

     We     have    carefully       considered      defendant's       remaining

contentions,     including     those   asserted     in   defendant's    pro    se

supplemental brief, and find they are without sufficient merit to

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

only that the prosecutor's assertions of fact during summation,

when considered in context, were either directly supported by the

evidence    or   constituted    inferences    reasonably     drawn    from    the

evidence.    In addition, the court instructed the jurors that they

were "the sole exclusive judges of the evidence, of the credibility

of the witnesses, and the weight to be attached to the testimony

of each witness . . . regardless of what counsel said or may have

said recalling the evidence in this case."               We presume the jury

followed the court's instructions, Smith, 212 N.J. at 409, and

therefore accorded no weight to any purported misstatement of fact

in   the    prosecutor's     summation.       The    challenged      statements

otherwise did not deprive defendant of a fair trial.




                                       27                               A-0818-15T4
                                     D.

      Defendant further contends the court erred by engaging in

what he characterizes as excessive questioning of DiGiambattista

and   the    State's     footwear     impressions       expert.          During

DiGiambattista's    testimony,      the    court    asked   questions     about

whether the photographs he was shown accurately depicted the scene

in the shed and Bullock's body when he found her.                 The court

similarly asked the expert questions about whether photographs

that she did not take accurately depicted the footwear impressions

found on the shed's flooring.         Defendant argues the questioning

constituted unwarranted judicial intervention and violated his

right to a fair trial.     We disagree.

      Defendant did not object to the court's questioning of the

witnesses.    We therefore review for plain error, and "disregard

any alleged error 'unless it is of such a nature as to have been

clearly   capable   of   producing    an   unjust    result.'"     State       v.

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2).             We find

no plain error here.

      In State v. Ross, 229 N.J. 389, 408-09 (2017), the Court

recently summarized the relevant legal standard:

            The New Jersey Rules of Evidence explicitly
            permit trial judges to interrogate witnesses.
            Judges are authorized to question witnesses
            "in accordance with law and subject to the


                                     28                                 A-0818-15T4
right   of     a   party    to   make   timely
objection."   N.J.R.E. 614.

Indeed,   we    have   recognized    that   the
discretionary power of a judge to participate
in the development of proof is of "high
value." [State v. Guido, 40 N.J. 191, 207
(1963)].   A trial judge may intervene to
expedite    the   proceedings    and    clarify
testimony. [State v. O'Brien, 200 N.J. 520,
534 (2009)].    A trial judge may also pose
questions to help elicit facts from a witness
who is in severe distress. [State v. Taffaro,
195 N.J. 442, 451 (2008)].

Although a trial judge has wide latitude to
question witnesses, a judge must exercise this
authority with "great restraint," especially
during a jury trial. Ibid. A judge must use
considerable care when questioning witnesses
to avoid influencing the jury. Ibid. There
is a grave risk that a trial court may
influence a jury through its questioning by
signaling doubt about a witness's credibility
or suggesting that it favors one side over the
other. See O'Brien, 200 N.J. at 523 (noting
that [a] judge "holds powerful symbolic
position vis-a-vis jurors . . . and must
refrain from any action that would suggest
that he favors one side over the other, or has
a view regarding the credibility of a party
or a witness"). A fine line separates proper
and improper judicial questioning.     A trial
court crosses this line when its inquiries
give the jury an impression that it takes one
party's side or that it believes one version
of an event and not another. See Taffaro, 195
N.J. at 451.

In determining whether a trial judge crossed
over this line, we must examine the record as
a whole. See id. at 454. "[I]t is the impact
of the court's questions, and not the number
of   minutes  they   lasted,  which   matters
most." Ibid.

                      29                          A-0818-15T4
      Measured against that standard, we are satisfied the court

did not abuse its discretion by questioning the witnesses about

the accuracy of the photographs.           The court's questions were

limited to the witnesses' knowledge concerning the photographs,

and could neither be reasonably interpreted as favoring one side

of the case nor as expressing an opinion on the credibility of

either side's version of the events.       Cf. O'Brien, 200 N.J. at 537

(reversing conviction based on judge's questioning of a witness

"le[ft] the impression that [the judge] did not believe [the]

defendant's claim").     The record simply does not support or permit

a conclusion that the court's questioning was capable of producing

an unjust result.    R. 2:10-2.

                                   E.

      Defendant challenges his sentence, claiming the court erred

by imposing an excessive sentence based upon its application of

aggravating factors one, "[t]he nature and circumstances of the

offense, and the role of the actor therein, including whether or

not it was committed in an especially heinous, cruel, or depraved

manner," N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will

commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent

and   seriousness   of   defendant's    prior   record,   N.J.S.A.    2C:44-

1(a)(6); and nine, the need to deter defendant and others from

violating the law, N.J.S.A. 2C:44-1(a)(9).

                                  30                                 A-0818-15T4
      "Appellate review of sentencing is deferential, and appellate

courts are cautioned not to substitute their judgment for those

of our sentencing courts."       State v. Case, 220 N.J. 49, 65 (2014)

(citation omitted).      Thus, disturbing a sentence is permissible

in "only three situations: (1) the trial court failed to follow

the sentencing guidelines, (2) the aggravating and mitigating

factors found by the trial court are not supported by the record,

or (3) application of the guidelines renders a specific sentence

clearly unreasonable."     State v. Carey, 168 N.J. 413, 430 (2001).

      Our Supreme Court has cautioned that a reviewing court should

not   second-guess   a   trial   court's   diligent   exercise    of   its

sentencing discretion that is in accordance with the sentencing

guidelines.   State v. Cassady, 198 N.J. 165, 180-81 (2009); State

v. Roth, 95 N.J. 334, 365 (1984).        Rather, appellate courts must

abide by a sentence imposed in accordance with the sentencing

guidelines unless it "shocks the judicial conscience."           Cassady,

198 N.J. at 180; see also State v. Tindell, 417 N.J. Super. 530,

570 (App. Div. 2011).     We are "empowered – indeed obligated – to

correct a clearly unreasonable sentence, even if the judge applied

correctly the statutory sentencing guidelines."       Tindell, 417 N.J.

Super. at 571.

      A trial court must not only make findings of aggravating and

mitigating factors, but must also weigh and balance the factors

                                    31                            A-0818-15T4
in a process that requires more than a quantitative comparison of

"the number of pertinent aggravating factors with the number of

applicable mitigating factors."            State v. Fuentes, 217 N.J. 57,

72 (2014).    The sentencing court must "qualitatively assess[] and

assign[] appropriate weight in a case-specific balancing process."

Id. at 72-73.     "When the aggravating and mitigating factors are

identified,   supported     by    competent,      credible    evidence   in   the

record, and properly balanced," an appellate court must affirm the

sentence provided it does not shock our judicial conscience. Case,

220 N.J. at 65.      If the sentencing court "forgoes a qualitative

analysis" of the aggravating and mitigating factors "or provides

little    'insight   into     the     sentencing      decision,'       then   the

deferential standard of appellate review of a sentence does not

apply.    Ibid.

     In a sentencing court's application of aggravating factors,

"sentencing   courts   are       cautioned   to    avoid     'double   counting'

circumstances that the Legislature has already incorporated as an

element of the offense."           State v. Lawless, 214 N.J. 594, 608

(2013).    Thus, relying on factors that support an element of a

crime, such as the victim's death which underlies the murder

offense, may not be used as aggravating factors for sentencing of

that particular crime.       Ibid.



                                      32                                 A-0818-15T4
     Here, defendant argues the court engaged in impermissible

double counting by finding aggravating factor one based on the

injuries resulting in Bullock's death.            The court gave substantial

weight to aggravating factor one, and found the factor because

Bullock "died of blunt head and neck trauma" that "caused bleeding

around the membrane of the brain and bleeding within the brain,"

as well as "hemorrhage within the neck organs indicating blunt

neck trauma with possible compression."              The court also noted that

a "cord was used" that was "wrapped around her neck."

     Where the defendant is charged with a purposeful and knowing

murder, "the sentencing court's application of aggravating factor

one must be based on factors other than the death of the victim

and the circumstances essential to support a finding" that the

defendant    knowingly      and   purposely     caused    the    victim's    death.

Fuentes, 217 N.J. at 76.             The sentencing court must engage in a

"nuanced analysis of the defendant's offense," and provide a clear

explanation to permit an appellate court to determine if the

elements    of    offense     have    been   double   counted.         Ibid.    "[A]

sentencing court may justify the application of aggravating factor

one, without double[]counting, by reference to the extraordinary

brutality    involved    in    an    offense"   or    where     the   "defendant's

behavior    extended     to   the     extreme   reaches    of    the   prohibited

behavior."       Id. at 75 (citation omitted).

                                        33                                  A-0818-15T4
     Here,    the   sentencing    court   could    not     properly     find

aggravating factor one simply because "a death resulted from

defendant's conduct," id. at 76 (quoting State v. Briggs, 349 N.J.

Super. 496, 505 (2002)), but instead was required to determine if

defendant's   conduct   "was     'especially    heinous,     cruel,     [or]

depraved'" based on the information in the record, id. at 77

(alteration in original) (quoting N.J.S.A. 2C:44-1(a)(1)).               The

court, however, did not adequately explain the basis for its

application of aggravating factor one.         It "neither discussed in

detail the circumstances of the offense nor identified the facts

in the record – distinct from the facts necessary to prove the

elements of [murder] – that supported its finding."         Ibid.     We are

therefore constrained to vacate defendant's sentences and remand

for resentencing.   The court shall determine "if there is credible

evidence in the record to support" its finding of aggravating

factor one and "provide a detailed explanation of its findings

with respect to this and any other factor applied."          Id. at 78.

     We do not find merit in defendant's contention the court

erred by relying on his prior offense history as a basis for

finding aggravating factors three and nine.         Defendant contends

the court also erred in weighing those factors because it failed

to consider the lack of severity of his previous offenses.



                                   34                               A-0818-15T4
       The law is well-settled that a court may properly consider

defendant's prior history of criminality to support findings of

aggravating factors three, six and nine.          State v. Dalziel, 182

N.J.    494,   502   (2005).     The    record   supports     the     court's

determination because it shows defendant had 1999 convictions for

two counts of third-degree burglary, N.J.S.A. 2C:18-2, and one

count of third-degree arson, N.J.S.A. 2C:17-1(b)(2), under two

indictments.    He was sentenced to serve a jail term as a condition

of probation.        In 2001, the Family Court entered a domestic

violence    temporary    restraining    order    against    him     that   was

subsequently withdrawn.        In 2002, 2005, 2008, and 2009, he was

found guilty of offenses in municipal court.               In 2010, he was

found guilty in municipal court of abuse, abandonment, or cruelty

of children, N.J.S.A. 9:6-1.        In 2010, he was found guilty in

municipal court of three separate offenses.            In 2012, he was

convicted of fourth-degree unlawful possession of a stun gun,

N.J.S.A. 2C:39-3(h), and received a probationary sentence.                 Less

than one year later, he committed the murder and other offenses

for which the court imposed the sentence under review.

       A sentencing court may consider the length of a defendant's

criminal record, irrespective of whether each offense resulted in

a conviction, State v. Tanksley, 245 N.J. Super. 390, 397 (App.

Div. 1991), and may consider convictions for relatively minor

                                   35                                 A-0818-15T4
offenses.   State v. T.C., 347 N.J. Super. 219, 244 (App. Div.

2003).   Defendant's record demonstrates a lengthy and consistent

history of violating the law and provided sufficient credible

evidence supporting the court's finding of aggravating factors

three, six and nine.   See State v. O'Donnell, 117 N.J. 210, 216

(1989) ("[A]n appellate court should not second-guess a trial

court's finding of sufficient facts to support an aggravating or

mitigating factor if that finding is supported by substantial

evidence in the record."). We further discern no basis to "second-

guess" the court's weighing any of those aggravating factors.       See

Cassady, 198 N.J. at 180-81.

     Defendant's remaining arguments are without merit sufficient

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

     Defendant's convictions are affirmed.    We vacate defendant's

sentence and remand for further proceedings in accordance with

this opinion.   We do not retain jurisdiction.




                               36                             A-0818-15T4
