                        NOT FOR PUBLICATION WITHOUT THE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-2423-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ALI BASS,
a/k/a ALIF BASS,
a/k/a LADON BAY,
a/k/a MURAD BORNS,

        Defendant-Appellant.

_______________________________

              Argued September 19, 2017 – Decided October 12, 2017

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 11-
              11-2085.

              Thomas R.       Ashley     argued    the    cause    for
              appellant.

              Kayla Elizabeth Rowe, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney; Ms.
              Rowe, of counsel and on the brief).

PER CURIAM
      On November 5, 2015, a jury convicted defendant Ali Bass of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6), fourth-

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

second-degree    eluding,   N.J.S.A.       2C:29-2(b),    and    fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a).             On December 23, 2015,

defendant was sentenced to twenty years imprisonment with an

eighty-five percent parole disqualifier under the No Early Release

Act   (NERA),   N.J.S.A.    2C:43-7.2,      for   the    aggravated    assault

conviction; a ten year prison term with a five year period of

parole ineligibility for the eluding conviction; and an eighteen

year prison term for resisting arrest and unlawful possession of

a weapon convictions.       All sentences were to run concurrently.

Defendant appeals from the convictions and the sentence.                      We

affirm.

      The following facts are taken from the record.               On December

11, 2009, Newark Police Detective Anna Colon was on patrol and

observed defendant driving a vehicle on Irvine Turner Boulevard.

Detective Colon activated her lights and siren to pull over

defendant because he was not wearing a seatbelt.                Defendant made

a quick u-turn and a chase ensued, joined by another vehicle

operated by Sergeant Thomas Rowe with Detective Jose V. Torres as

its passenger.



                                       2                               A-2423-15T2
    Defendant's vehicle crossed the double line into oncoming

traffic and collided head-on with another vehicle, causing the

other vehicle to become air borne and land on its side.                     As

Detective     Colon    approached    defendant's   vehicle,    the     front

passenger, Arsenio Payton, fled from the vehicle.              Payton was

apprehended    by     another   officer.   Detective   Colon    discovered

defendant attempting to push himself into the back seat of the

vehicle.    Defendant's left leg was broken and wrapped around the

driver's seat.      He was arrested.

    Payton subsequently pled to separate charges.             As a part of

his plea, he testified he was the passenger of the automobile

involved in the chase.

    Defendant's trial ensued and resulted in his convictions and

sentence from which he now appeals.        On appeal, defendant raises

the following arguments:

            POINT ONE -    THE REFUSAL OF THE COURT BELOW TO
            UNDERTAKE      THE  MANDATORY   BEY   PROCEDURE,
            REGARDING      MID-TRIAL   PUBLICITY,   VIOLATED
            DEFENDANT'S    RIGHT TO A FAIR TRIAL.

            POINT TWO - PERMITTING THE STATE IN SUMMATION
            TO MAKE THE BASELESS INFERENCE THAT DEFENSE
            COUNSEL INFLUENCED WITNESS PAYTON TO FALSELY
            TESTIFY, WHICH WAS COMPOUNDED BY THE COURT
            BELOW REFUSING TO GIVE A CURATIVE INSTRUCTION,
            WAS HARMFUL REVERSIBLE ERROR WITH THE CLEAR
            CAPACITY TO PRODUCE AN UNJUST RESULT.




                                      3                              A-2423-15T2
             POINT THREE - DEFENDANT'S SENTENCE IS ILLEGAL
             AS IT IS THE PRODUCT OF MULTIPLE DISCRETIONARY
             ENHANCEMENTS.

                                        I.

      Defendant argues he was deprived the right to a fair trial

because      he   informed   the     trial      court   of    an    NJ.com   article

referencing his separate impending murder trials, and his trial

in the instant case.          The article in question, entitled "Man

charged in 3 murders on trial for wrong-way crash in police chase,"

appeared on October 23, 2015, after trial had commenced.1

      Defendant requested the trial court ask the jurors regarding

whether any of them had read the article, but the court declined

noting it had previously instructed the jury to avoid any trial

publicity regarding the trial.             Defendant asserts the trial court

erred by refusing to poll the jury pursuant to State v. Bey, 112

N.J. 45 (1988), to determine whether any jurors were exposed to

the publicity surrounding the trial.               We disagree.

      In Bey, the Court determined where there is publicity during

a   trial,    "[i]f   the    court    is       satisfied     that   the   published

information has the capacity to prejudice the defendant, it should

determine if there is a realistic possibility that such information


1
  A second article entitled "Accused murderer says he was not
driver in crash during police chase," appeared on October 29,
2015, the fifth day of trial, but counsel never addressed its
existence with the trial court.

                                           4                                 A-2423-15T2
may have reached one or more of the jurors."    Id. at 86.    If there

is such a realistic possibility, a voir dire must be conducted to

ascertain whether any juror has been exposed.    Id. at 86-87.      The

trial court then must determine whether the mid-trial publicity

had a "great[er] capacity to prejudice a defendant's case," and

where the publicity had such a strong potential for prejudice, the

usual assumptions about jurors following their oaths and adhering

to the judge's instructions are not warranted.    Id. at 81-83, 90;

see also State v. Mejia, 141 N.J. 475, 514 (1995) (Handler, J.,

concurring) (quoting Bey, supra, 112 N.J. at 81-90).

     We review a decision to conduct a Bey voir dire for abuse of

discretion.   State v. Tindell, 417 N.J. Super. 530, 564 (App. Div.

2011), certif. denied, 213 N.J. 388 (2013).        This is because

"[c]ases of presumed prejudice due to pretrial publicity are

'relatively rare and arise out of the most extreme circumstances.'"

State v. Harris, 156 N.J. 122, 143 (1998) (quoting State v.

Koedatich, 112 N.J. 225, 269 (1988), cert. denied, 488 U.S. 1017,

109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).

     The publicity in this matter was limited to an article defense

counsel initially identified at the onset of trial, and a second

one which later appeared that counsel did not address.       This form

of publicity was not the sort of "extreme circumstances" warranting

a Bey voir dire.

                                 5                             A-2423-15T2
      As noted by the State, the trial court instructed the jury

four times regarding the avoidance of trial publicity throughout

the trial. Importantly, the trial court instructed the jury before

the NJ.com article was published, both during the jury selection

voir dire and after the jury was empaneled.              The trial court's

instruction was clear:

            You are not to read or have anyone read to you
            any newspaper accounts about any issue or
            person or matter involved in this case.
            You're not to search the internet for any
            media accounts about the trial or search any
            papers or magazines for any information about
            anyone or anything involved in this case.

      On the third day of trial, before the jury returned to the

courtroom, defense counsel raised a concern that he had learned

of   the   NJ.com   article,   which   also   featured   a   photograph    of

defendant.    Defense counsel indicated he had not read the article,

but wanted to bring the matter to the trial court's attention.

Defense counsel stated:

            I am not priv[y] to the article, your honor,
            and I did not see it myself. I just heard of
            it. I just want the court to know that what
            I'm saying is hearsay.          But it's my
            understanding that that's what was told to me.

            So if that is the case, which I have no reason
            to believe it's not, then I would leave it to
            the court's discretion with respect to
            ensuring that none of the jurors actually read
            or heard about the article.



                                       6                            A-2423-15T2
     After the state objected to the       request that the judge

question the jury about the article, the trial court declined to

instruct the jury again on trial publicity because the instruction

had been given twice before.     The trial court explained:

          Okay. I continuously instructed the jury not
          to do an investigation, nor contact, nor
          research, . . . but more importantly I've
          instructed them to immediately bring it to the
          attention   of   the   court   if   they   had
          inadvertently seen or heard, or been subject
          to   any   information   concerning   anything
          involved in this trial, or anyone involved in
          this trial.

          I don't see any reason to reinstruct them on
          that.   I don't see any reason to take any
          further action with reference to that article
          or any article that may be out there
          somewhere.

     The NJ.com article was raised again during defense counsel's

cross-examination of Detective Torres.       Defense counsel asked

Detective Torres whether he had seen photographs of defendant.

The trial court permitted the question over the State's objection

on relevancy grounds and Detective Torres answered: "Just whatever

was on NJ.com."

     The State renewed its objection and a sidebar ensued where

the State asserted that the defense did not have a good faith

reason to ask such a question.    Defense counsel responded that the

point of the question was not to inform the jury about the

existence of the NJ.com article, but to test the credibility of

                                  7                           A-2423-15T2
Detective    Torres's   testimony   regarding    his    identification      of

defendant.

     Defense counsel explained: "So what I'm saying is for five

years [Detective Torres] hasn't seen this individual.             [Detective

Torres] saw [defendant] for a matter of seconds and he was able

to identify him in court."     The trial court accepted the defense

counsel's rationale and instructed the jury to disregard Detective

Torres's reference to what he saw on NJ.com.

     After the conclusion of testimony and summations, the trial

court charged the jury before deliberations, and again instructed

the jurors not to conduct research of their own.             After a lunch

break, the jury returned to begin deliberations, which lasted

until the following day.      At the conclusion of the first day of

deliberations, the trial court again instructed the jury to conduct

"[n]o research about anyone or any issue involved in this case[.]"

     Under   these   circumstances,     we   cannot    conclude   the   trial

publicity required a Bey voir dire.            The jury was repeatedly

instructed to refrain from reading outside sources before and

after the article was published.        The record lacks evidence there

was a realistic probability the information reached the jury.

There is no evidence of strong publicity of the sort that would

prejudice defendant.     Thus, a Bey voir dire was not triggered by



                                    8                                A-2423-15T2
the publication of the article and the trial judge did not abuse

his discretion by declining to voir dire the jury.

                                      II.

     Next,      defendant   asserts    the    prosecutor's    statement      in

summation that defense counsel improperly influenced Payton to

testify in defendant's favor was prejudicial error.                 Defendant

asserts   the    court's    refusal   to    give   a   curative   instruction

compounded the prosecutor's error and warrants reversal.                     We

disagree.

     As noted above, at his plea proceeding Payton testified that

he was the passenger in the vehicle operated by defendant.                   At

trial, Payton was called to testify for defendant and changed his

testimony.      Payton testified that he had written a letter to

defense counsel claiming he was the driver of the vehicle.                   He

further testified on cross-examination that defense counsel had

visited him before the trial.         Without an objection from defense

counsel, the following colloquy occurred:

            [PROSECUTOR:] And you had an opportunity to
            speak to [defense counsel]. Is that correct?

            [PAYTON:] Yes.

            [PROSECUTOR:] Okay. And did you guys discuss
            what you were going to be talking about today?

            [PAYTON:] No.



                                       9                              A-2423-15T2
          [PROSECUTOR:] Okay. So [defense counsel] just
          paid you a visit and then left?      I don't
          understand.

          [PAYTON:] Yes, I was telling him that I was
          the driver of the vehicle.

          [PROSECUTOR:] Okay. So you did talk to him
          about this case. Is that correct?

          [PAYTON:] Yes.

     In summation, defense counsel argued Payton's testimony was

credible because he had not been intimidated by defendant or anyone

on defendant's behalf, namely, defense counsel.        Defense counsel

stated:

          So in any event, going over his testimony that
          [defense counsel had] seen [Payton] three
          times (indiscernible).

          . . . you've heard testimony that [defendant]
          visited [] Payton while he was in jail . . .
          Now this was after the letter not before the
          letter, after the letter. So any suggestion
          that [defendant] intimidated [Payton] in this
          visit is wrong because he came after . . . I
          received the letter. And there's no evidence
          except the mere suggestion of the State that
          anything untoward happened there.

     On summation, the prosecutor responded to defense counsel's

remarks. The prosecutor argued: "So ladies and gentlemen, [defense

counsel] went [to visit Payton] to discuss this case.           But you

don't need to prep someone three times to tell the truth[.]"

     Appellate   review    focuses    on   the   prosecutor's   alleged

misstatements and their collective effect, if any, on a defendant's

                                 10                             A-2423-15T2
right to a fair trial. We evaluate "the severity of the misconduct

and its prejudicial effect on the defendant's right to a fair

trial"   and   conclude   whether   "prosecutorial        misconduct     is   not

grounds for reversal of a criminal conviction unless the conduct

was so egregious as to deprive defendant of a fair trial."                   State

v.   Papasavvas,   163    N.J.   565,    625   (2000)    (quoting   State         v.

Timmendequas, 161 N.J. 515, 575-76, cert. denied, 534 U.S. 858,

122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)).                Thus, "[t]o justify

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

unmistakably improper, and must have substantially prejudiced

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

merits of his defense."      Id. at 616 (quoting Timmendequas, supra,

161 N.J. at 575).

      "A prosecutor in a criminal case is expected to make a

vigorous   and   forceful   closing      argument   to    the   jury.    .    .    .

Prosecuting attorneys are afforded considerable leeway if their

comments are reasonably related to the scope of the evidence before

the jury."     State v. Harris, 141 N.J. 525, 559 (1995).               However,

"[a]d hominem attacks on defense counsel in particular or on

defense lawyers in general are not acceptable."              State v. Adams,

320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161 N.J. 333

(1999) (emphasis omitted) (citing State v. Thornton, 38 N.J. 380,

398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.

                                    11                                   A-2423-15T2
2d 1039 (1963)).       "[W]hile a prosecutor's summation is not without

bounds,    '[s]o     long   as   he    stays    within    the    evidence    and    the

legitimate inferences therefrom the Prosecutor is entitled to wide

latitude in his summation.'"             State v. Wakefield, 190 N.J. 397,

457 (2007) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968),

cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593

(1969)).

      Here, placed in context, the prosecutor's comments regarding

defense counsel's three visits to Payton were permissible.                     It was

defense counsel who first raised and addressed the issue of the

visits and Payton's credibility, both during the testimony and

summation phases of the trial.                 Indeed, defense counsel argued

Payton's testimony in the 2010 plea colloquy was perjury.                       Also,

defense     counsel's       summation     attempted       to     bolster    Payton's

credibility, as the key witness, by explaining Payton's motivation

for coming forward with his story, why he wrote to defense counsel,

and why defense counsel visited him three times.                  Because Payton's

trial testimony contradicted his 2010 plea, and only one version

of   the   testimony    could     be    true,    the    prosecutor    was    free    to

challenge    Payton's       credibility       regarding    the   reasons     for    the

change in his testimony.

      We    reject    defendant's       claim     the     prosecutor       improperly

suggested defense counsel personally influenced Payton to change

                                         12                                   A-2423-15T2
his testimony.     Payton's credibility was a key issue, and whether

he committed perjury or was influenced to change his testimony was

a decision for the jury to make.          The gravamen of the prosecutor's

remark was to explain to the jury the State's view of the facts

in evidence. This conduct was neither egregious nor did it deprive

defendant of a fair trial in any discernable way.          Thus, the trial

court did not err by refusing to issue a curative instruction

under these circumstances.

                                     III.

     Lastly, defendant argues his sentence for aggravated assault

is illegal because the imposition of an extended sentence of twenty

years,    with   seventeen   years   parole    ineligibility   under   NERA,

should have been based on the maximum ordinary term, not the

extended term.     We find no merit to this claim.

     Sentencing determinations are reviewed on appeal under a

highly deferential standard.         State v. Fuentes, 217 N.J. 57, 70

(2014).    We review sentences imposed by the trial court for an

abuse of discretion.         State v. Megargel, 143 N.J. 484, 493-94

(1996).

     A sentencing court may apply an extended sentence pursuant

to N.J.S.A. 2C:43-7, if the court finds a defendant to be a

persistent offender pursuant to N.J.S.A. 2C:44-3.               Defendants



                                     13                            A-2423-15T2
convicted of a second-degree crime may be sentenced to an extended

term between ten and twenty years.          N.J.S.A. 2C:43-7.

       Defendant does not challenge the trial court's ability to

impose an extended sentence for his aggravated assault conviction

or that he is a persistent offender. His conviction for aggravated

assault is a second degree offense that is subject to a mandatory

NERA parole disqualifier.         N.J.S.A. 2C:42-7.2(d)(4); N.J.S.A.

2C:12-1(b)(6).

       Rather, in asserting his claim that his NERA period of parole

ineligibility may only be based on the maximum ordinary term

defendant relies upon State v. Allen, 337 N.J. Super. 259, 273-74

(App. Div. 2001), certif. denied, 171 N.J. 43 (2002).             In Allen,

we held "the imposition of an extended term for a first or second

degree 'violent crime' (as defined in N.J.S.A. 2C:43-7.2(d)) must

embody a parole ineligibility term at least equal to the NERA

sentence applicable to the maximum ordinary term for the degree

of crime involved."      Allen, supra, 337 N.J. Super. at 273-74.

       Defendant misreads the holding in Allen.       We did not restrict

the imposition of an extended sentence to the maximum ordinary

term.     Instead   we   noted   the    "imposition   of   a   mandatory    or

discretionary ineligibility term on an extended term sentence

could be longer if required or authorized by statute."               Id. at

274.

                                       14                            A-2423-15T2
    Therefore, the trial court properly sentenced defendant to a

twenty-year extended term, and properly applied the eighty-five

percent minimum NERA term of parole eligibility to the extended

term, as set forth in Allen.   Ibid.

    Affirmed.




                               15                        A-2423-15T2
