                                NOT FOR PUBLICATION WITHOUT THE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-4885-16T1
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYIAN EDWARDS, a/k/a
TRYIAN EDWARDS, TYIAN
F. EDWARDS, TYIN F. EDWARDS,
and TYRAN F. EDWARDS,

     Defendant-Appellant.
_______________________________

                    Argued March 4, 2019 – Decided March 18, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 14-06-0592.

                    Cody T. Mason, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Cody T. Mason, of counsel
                    and on the briefs).

                    Robert J. Wisse, Assistant Prosecutor, argued the cause
                    for respondent (Camelia M. Valdes, Passaic County
                    Prosecutor, attorney; Robert J. Wisse, of counsel and
                    on the brief).
PER CURIAM

      Tried before a jury on a four-count indictment, defendant Tyian Edwards

was convicted of fourth-degree distribution of marijuana, N.J.S.A. 2C:35-

5(a)(1) and 2C:35-5(b)(12) (count one); third-degree distribution of marijuana

within 1000 feet of a school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-

7 (count two); fourth-degree possession with intent to distribute marijuana,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count three); and third-

degree possession with intent to distribute marijuana within 1000 feet of a

school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count four).

      The trial judge merged count one into count two, and count three into

count four, and sentenced defendant to concurrent, extended-term, eight-year

sentences on counts two and four, with a four-year period of parole ineligibility. 1

This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            DEFENDANT WAS DENIED HIS RIGHTS TO DUE
            PROCESS AND A FAIR TRIAL WHEN A
            DETECTIVE TESTIFIED THAT HE BELIEVED HE
            SAW A DRUG TRANSACTION, ANOTHER

1
  In a separate proceeding conducted before sentencing, a different judge denied
defendant's application for admission to Drug Court.
                                                                            A-4885-16T1
                                         2
DETECTIVE   SUGGESTED    THE   DEFENSE
SHOULD    HAVE    PRESENTED   RELEVANT
EVIDENCE, AND BOTH DETECTIVES TESTIFIED
ABOUT DEFENDANT BEING IN A "HIGH-CRIME"
AREA WHERE THEY HAD MADE THOUSANDS
OF PRIOR ARRESTS AND DRUG SEIZURES.

A.   The Detective's Testimony that He Observed a
     Drug Transaction Was Improper and Its
     Resulting Prejudice Was Amplified by Other
     Testimony and the State's Opening Statement and
     Summation.

B.   The Detective's Testimony that Defense Counsel
     Could Have, and Possibly Should Have,
     Retrieved and Presented Relevant Surveillance
     Footage Unfairly Shifted the Burden of Proof to
     the Defense and Could Not Be Remedied by
     Curative Instructions.

C.   The Detectives' Testimony that Defendant Was in
     a "High-Crime" Area Where They Had
     Conducted Thousands of Successful Drug
     Investigations Was Irrelevant and Highly
     Prejudicial.

D.   The Errors at Trial Individually and
     Cumulatively Require Reversal of Defendant's
     Convictions.

POINT II

REVERSAL    IS    REQUIRED    BECAUSE
DEFENDANT'S RIGHT TO BE PRESENT WAS
VIOLATED WHEN SUMMATIONS OCCURRED
WHILE HE WAS INVOLUNTARILY ABSENT DUE
TO AN UNRELATED ARREST.


                                                       A-4885-16T1
                         3
             POINT III

             A REMAND FOR RESENTENCING IS REQUIRED
             BECAUSE THE COURT BASED THE SENTENCE
             ON AGGRAVATING FACTORS THAT WERE
             INSUFFICIENTLY      EXPLAINED,   WERE
             SUPPORTED BY DEFENDANT'S ADDICTION,
             AND WHICH FAILED TO ACCOUNT FOR
             DEFENDANT'S    REJECTED   DRUG  COURT
             APPLICATIONS.

      After reviewing the record in light of the contentions advanced on appeal,

we affirm.

                                       I.

      On the afternoon of April 3, 2014, Detective Sal Judeh and Detective Russ

Curving were conducting a narcotics investigation near an intersection. From

their unmarked car, they saw a man, later identified as defendant, engage in a

conversation with a woman. After their brief conversation, the woman handed

defendant what appeared to be paper money, which he counted, and placed in

his pants pocket.    Defendant then retrieved some items from inside his

waistband, and gave them to the woman.

      As defendant and the woman began to leave in different directions, the

detectives pulled their car up to where defendant was walking. Detective Judeh

got out of the car, approached defendant, and identified himself as a police


                                                                        A-4885-16T1
                                       4
narcotics detective. In response, defendant "shov[ed] his right arm into his

waistband." Detective Judeh grabbed defendant's arm and pulled it out of

defendant's pants, causing a plastic bag to stick out of the waistband. When the

detective removed the bag, he saw that it contained fifteen "baggies of

marijuana." The detectives also recovered two baggies of marijuana from the

woman. All of the baggies were clear and had "an 8 ball mark on them." The

detectives found $175 in defendant's pants pocket following his arrest.

      In addition to the testimony of Detectives Judeh and Curving, the State

called two witnesses to establish that the transaction occurred within 1000 feet

of a school property, and a State Police Laboratory Director, who confirmed that

the baggies contained marijuana. Defendant did not call any witnesses or testify

on his own behalf.

                                       II.

      In Point I of his brief, defendant argues that the trial judge erred by

denying his motion for a mistrial after the judge sustained defendant's objections

to certain remarks the detectives made during their testimony. This argument

lacks merit.

      On cross-examination, defense counsel posed a series of questions to

Detective Judeh about his decision not to retrieve surveillance video of


                                                                          A-4885-16T1
                                        5
defendant's encounter with the woman on the street. On redirect, the prosecutor

asked the detective to "explain to the jury what kind of cases you will pull . . .

surveillance footage on." The detective replied:

                   Oh, yes. Very easy. If my investigation started
            utilizing the cameras, I would want that as proof. But
            if my case started [as] an observation on the street, and
            my investigation detailed further with the recovery and
            having probable cause to arrest the individual, there
            would be no need to go around and retrieve other
            cameras. That would be maybe the defense attorney's
            responsibility.

            [(emphasis added).]

      Defendant's attorney immediately objected, and argued that the

highlighted comment, which the prosecutor had not solicited, incorrectly

implied that defendant had the responsibility to gather evidence to demonstrate

his innocence. The judge immediately excused the jury, conducted argument on

defendant's objection, sustained the objection, and decided to give the jury a

strong curative instruction to address the situation. When the trial resumed, the

judge gave the following charge to the jury:

            I instruct you in the strongest terms possible that you
            are to disregard that comment or that answer in its
            entirety. Do not consider it at all in your deliberations.
            Don't even think about it one more second . . . I cannot
            emphasize enough how you are to disregard that remark
            and remember that the defendant has to do nothing, zero
            to defend himself. He doesn't have to call a witness.

                                                                          A-4885-16T1
                                        6
Does not have to test (sic) -- nothing. Okay. The sole
burden is on the Prosecutor's Office. Not the defendant.
The defendant does not have a duty to prove his
innocence. Now let me just read to the instruction
again. And let me start with the beginning.

The indictment is not evidence of defendant's guilt on
the charges. An indictment -- and just in case that you
may have forgotten that I said that. An indictment is a
step in the procedure to bring the matter before the
Court and jury for the jury's ultimate determination as
to whether the defendant is guilty or not guilty on the
charges stated in it.

Mr. Edwards has pleaded not guilty to the charges, and
he is presumed to be innocent. Unless each and every
element of the offenses charged are proved beyond a
reasonable doubt, Mr. Edwards must be found not
guilty of that charge. The – and – and this is what I'm
really going to emphasize. The burden of proving each
element of the charge beyond a reasonable doubt rests
upon the State and that burden never shifts to the
defendant. It is not the obligation nor is it the duty of a
defendant in a criminal case to prove his innocence or
offer any proof relating to his innocence.

The prosecution must prove its case by more than a
mere preponderance of the evidence, yet not necessarily
to an absolute certainty. The State has the burden of
proving the defendant guilty beyond a reasonable
doubt. Some of you may have served as jurors in civil
cases where you were told that it is necessary to prove
only that a fact is more likely true than not true. In
criminal cases, the State's proof -- proof must be more
powerful than that. It must be beyond a reasonable
doubt.

Please disregard that answer.

                                                              A-4885-16T1
                            7
      Later, during Detective Curving's testimony, the prosecutor asked the

detective "what was [he] able to observe" when he saw defendant speaking to

the woman on the street. The detective replied, "I was able to observe something

that was like a drug transaction." Defense counsel objected to this response, and

argued that the reference to a "drug transaction" was contrary to the Supreme

Court's holding in State v. McLean, 205 N.J. 438, 443, 463 (2011), that a lay

witness may not "invade[] the fact-finding province of the jury" by offering "an

opinion on matters that were not beyond the understanding of the jury." After

considering the argument of counsel, and sustaining defendant's objection, the

judge gave the following forceful curative instruction to the jury:

            [T]he Detective testified that he observed a drug
            transaction. That is -- that's an opinion that he -- that
            you are to reject. You are to come to the -- you are the
            ultimate determinators (sic), if that's such a word, of
            whether or not what he observed was a drug transaction.
            Okay. So I'm going to strike his answer – that answer
            from the record. And I ask you again, as with the other
            comment, please do not consider it in any way in your
            deliberations. You're the ultimate judges of the facts.
            You will decide whether or not what occurred in that
            street was or was not a drug transaction based upon the
            officer's testimony, if you find it to be credible, et
            cetera.

      The judge also denied defendant's motion for a mistrial based upon these

two comments.     In a thorough oral decision, the judge explained that the

                                                                         A-4885-16T1
                                        8
prosecutor had not sought to elicit either of the remarks, and stated that he

provided "an incredibly emphatic instruction to the jury in both cases." On

appeal, defendant asserts that the judge erred by denying his motion for a

mistrial. We disagree.

      "A mistrial is an extraordinary remedy[]" that should be employed "[o]nly

when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J.

Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant

of a mistrial depends on the specific facts of the case and the sound discretion

of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal,

164 N.J. 418, 435 (2000)).

      "The decision to grant or deny a mistrial is entrusted to the sound

discretion of the trial court[.]" State v. Harvey, 151 N.J. 117, 205 (1997). We

"should defer to the decision of the trial court, which is in the best position to

gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb

a trial judge's ruling on a motion for a mistrial unless it is an abuse of discretion

resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).

      Applying these principles, we conclude that the judge properly addressed

the issue.   Both of the remarks were fleeting and unsolicited.          The judge

immediately sustained defense counsel's objections and issued forceful and


                                                                             A-4885-16T1
                                         9
comprehensive curative instructions to the jury to disregard the detectives'

comments that we presume the jury followed. State v. Smith, 212 N.J. 365, 409

(2012) (citing State v. Loftin, 146 N.J. 295, 309 (1996)).            Under these

circumstances, the judge did not abuse his discretion by denying defendant's

motion for a mistrial.

      Defendant also argues that the detectives improperly referred to the

intersection near where the incident occurred as a "high-crime area." Before the

trial commenced, however, defense counsel agreed with the State that the

reference was not objectionable.      Thus, any error in permitting these brief

references was clearly invited and, therefore, not a basis for reversal on appeal.

State v. A.R., 213 N.J. 542, 561 (2013) (stating that "if a party has 'invited' the

error, he is barred from raising the objection for the first time on appeal").

      In any event, we discern no error in the admission of this testimony. Both

detectives had extensive experience in conducting narcotics investigations in the

area near the intersection, and describing the area would help the jury understand

why the detectives had set up a surveillance there. Thus, under Rule 701, their

testimony was properly admitted.        N.J.R.E. 701 (stating that a "witness'

testimony in the form of opinions or inferences may be admitted if it (a) is




                                                                            A-4885-16T1
                                       10
rationally based on the perception of the witness and (b) will assist in

understanding the witness' testimony or in determining a fact in issue").

      Finally on this point, defendant asserts that the cumulative prejudice of

the errors he raises deprived him of a fair trial. Having rejected defendant's

contention that any error occurred during the trial, we also reject his cumulative

error argument.

                                       III.

      Defendant's argument in Point II that the trial judge deprived him of his

Sixth Amendment right to participate in his trial does not require extended

comment.    Defendant did not show up at the courthouse on the morning

summations were to be presented to the jury. He did not call the court, his

attorney, or his grandmother. The judge waited until 10:30 a.m., conferred with

counsel, and decided to proceed with the summations. When asked by the judge

whether she wanted him to give the jury an instruction concerning defendant's

absence, his attorney replied that she would prefer to wait until the final charge

to do so. The attorneys then presented short summations to the jury.

      After the jury left the courtroom on a break, defendant called his attorney

and reported that he was on his way. He arrived at approximately 12:00 noon.




                                                                            A-4885-16T1
                                       11
In response to his inquiry, defendant gave the judge a vague explanation for his

absence. Defendant stated that he

             was with a family member and we actually was chilling
             last night and he got into some trouble. It falled [sic]
             offer to the next morning whereas I wasn't in trouble,
             it's just that I had to find my way from a certain
             situation, a place, to get to here.

When further pressed, defendant told the judge,

             I was riding with my cousin and he got pulled over.
             Basically, like, they just hold me for the morning and
             when . . . they let me go I had no money to get to where
             I was at so I had to call people to get all the way from
             Newark to Paterson.

      Defendant claimed he left the cell phone in his cousin's car and could not

access it to call his attorney. As set forth above, however, he contradictorily

stated he "had to call people" to arrange to get to the courthouse. 2 In his final

instructions to the jury later that day, the judge stated:

             As you know, Mr. Edwards was partially absent from
             the trial today. You should not speculate about the
             reason for his absence. You are not to consider for any
             purpose or in any manner in arriving at your verdict the
             fact that Mr. Edwards was only partially present for
             trial today. That fact should not enter into your
             deliberations or discussions in any manner at any time.
             Mr. Edwards is entitled to have a jury consider all the

2
  At a later Drug Court proceeding, defendant's attorney stated that defendant
"was very disheveled" when he arrived late to court, and smelled of alcohol.
The attorney also reported that defendant threw up in the courtroom.
                                                                          A-4885-16T1
                                        12
            evidence presented at trial. He is presumed innocent
            even if he is not partially present.

      Under these circumstances, we conclude that the judge properly allowed

summations to proceed in defendant's absence. As defendant points out, the

State and federal constitutions guarantee a criminal defendant "the right . . . to

be confronted with the witnesses against him." U.S. Const. amend. VI; N.J.

Const. art. I, ¶ 10. "Essential to that guarantee is the right of the accused to be

present in the courtoom at every stage of the trial." State v. Luna, 193 N.J. 202,

209 (2007). It is undisputed that summations serve an "important function" at a

trial. State v. Brown, ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 6).

      However, "[t]he right to be present at trial is not absolute. Otherwise,

defendants could halt trials simply by absenting themselves." Luna, 193 N.J. at

210 (citing Diaz v. United States, 223 U.S. 442, 458 (1912)). Our Supreme

Court has held in interpreting Rule 3:16(b), which provides that a trial may be

held in abstentia when a defendant explicitly or implicitly waives the right to be

present, that where a defendant has not expressly waived his right to be present

on the record, "the touchstone is whether a defendant's conduct reveals a

knowing, voluntary, and unjustified absence." Ibid.

      This standard was clearly met here. Defendant failed to appear in court

without any explanation. He did not attempt to contact the court or his attorney,

                                                                           A-4885-16T1
                                       13
although he stated he called other "people" in an attempt to get to the courthouse,

even though he also claimed he could not access his cellphone. While defendant

now argues in his appellate brief that he was incarcerated overnight, he did not

make that specific claim during his colloquy with the judge. Indeed, he stated

that he "wasn't in trouble." Defendant also did not present any paperwork

indicating he had been incarcerated.         In any event, even if defendant was

incarcerated, he still had the obligation to provide notice to the court and his

attorney. State v. Givens, 353 N.J. Super. 280, 288-89 (App. Div. 2002).

      Moreover, defendant has failed to demonstrate any prejudice from his

absence during the summations. See State v. Dellisanti, 203 N.J. 444, 461

(2010) (noting that a defendant must demonstrate that he or she has suffered

prejudice from his lack of participation at trial). The facts of this case were not

complex, nor were the legal arguments presented by the attorneys in this hand-

to-hand drug transaction case. Defendant was present for the cross-examination

of the witnesses against him, and at all other stages of the trial. In addition, the

judge carefully explained to the jury that it could not consider defendant's partial

absence for any purpose whatsoever. Therefore, we reject defendant's argument

that he is entitled to reversal of his conviction based on an asserted violation of

his right to be present at trial under Rule 3:16.


                                                                            A-4885-16T1
                                        14
                                       IV.

      Finally, defendant argues in Point III that his sentence was excessive. We

disagree.

      Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "'are called to the court's

attention[,]'" and "explain how they arrived at a particular sentence." State v.

Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid

substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

      We are satisfied the judge made findings of fact concerning aggravating

and mitigating factors that were based on competent and reasonably credible

evidence in the record, and applied the correct sentencing guidelines enunciated

in the Code, including the imposition of consecutive sentences. Accordingly,

we discern no basis to second-guess the sentence.

      Affirmed.


                                                                          A-4885-16T1
                                       15
