                                NOT FOR PUBLICATION WITHOUT THE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-3475-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLTON T. JAMES, a/k/a
JAMES CARLTON, and
TASHON MOORE,

     Defendant-Appellant.
_______________________

                    Submitted May 7, 2019 – Decided June 4, 2019

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-08-2362.

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

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Patrick D. Isbill, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      The Supreme Court recognized in State v. Branch, 182 N.J. 338, 350-51

(2005), that an accused's constitutional confrontation rights are violated when

police officers suggest or imply during trial testimony that they possess

"superior knowledge, outside the record, that incriminates the defendant" or

when they convey "directly, indirectly or by inference, [incriminating]

information from a non-testifying declarant."        Defendant claims the State

violated these rights during his trial through testimony elicited from an

investigating officer. Satisfied after careful review that the trial judge's rulings

and instructions adequately steered the police testimony away from these pitfalls

and sufficiently cautioned the jury about drawing such an inference, we affirm,

although we must remand for a correction of the judgment of conviction .

      Testimony adduced at trial revealed the nature of the December 29, 2012

incident that led to this prosecution. After Devon Williams hit Anthony Graham

over the head with a bottle, Anthony's two brothers – Gregory and Jermaine –

drove from Philadelphia and, with Anthony, arrived at a Camden bar late that

evening to confront Williams. The Graham brothers entered the bar and asked

Williams to talk with them. They all went outside, but Williams first walked

around the corner and spoke to another group while the brothers waited out front.

Williams then walked back to the Graham brothers with the other group in tow.

                                                                            A-3475-16T4
                                         2
      Gregory later testified that the brothers tried to pull Williams aside to talk,

but Williams' group wouldn't allow it. During the ensuing argument, Gregory

noticed a "short dude" with a "long beard" in the group wearing a white shirt

and hoodie who, with hand on waist, was walking behind his brothers. Williams

told the man to "Chill, Cool."

      Taking a cue from Jermaine, Gregory, according to his own trial

testimony, turned and began to walk away. Within seconds, he heard four or

five gunshots as Gregory ran toward Jermaine's car; once in the car, Gregory

realized he had been shot. The brothers drove to a nearby hospital, where

Gregory was treated for gunshot wounds to his leg, arm and knee.

      That night, police interviewed Gregory, but he was unable to identify the

shooter because he had been walking away when the shots were fired. He did,

however, provide Detective Shawn Donlon with a description of the short, dark -

skinned man with the long beard.        Jermaine advised the detective that he

believed that man's nickname was "Cool C," and he later testified that he heard

Williams refer to that same man as "Cool C."

      After interviewing the Graham brothers, Detective Donlon spoke about

the case with Lieutenant William Frampton, who recognized "Cool C" as an

alias for defendant and so informed Donlon. Jermaine was able to identify


                                                                             A-3475-16T4
                                         3
defendant from a photo array as the shooter.          He also made an in-court

identification of defendant as the shooter during the trial.

      Defendant was indicted on six counts, including second-degree

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

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

1(b)(4), second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a), second-degree unlawful possession of weapons, N.J.S.A.

2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b). Prior to trial, defendant unsuccessfully moved to suppress the out-

of-court identifications made by Jermaine and Anthony Graham.

      Defendant was convicted on all counts at the conclusion of an eight-day

jury trial. At sentencing, the judge found defendant to be a persistent offender

and imposed an extended term. N.J.S.A. 2C:44-3(a). The judge imposed a

fifteen-year prison term, subject to an eighty-five percent period of parole

ineligibility on the second-degree aggravated assault conviction, and a

consecutive seven-year term, with a forty-two-month period of parole

ineligibility, on the second-degree unlawful possession conviction. The judge

also imposed lesser concurrent prison terms on those other convictions that did

not merge.


                                                                        A-3475-16T4
                                         4
      In appealing, defendant argues in his multi-faceted first point that his right

to a fair trial was prejudiced by police testimony elicited by the prosecution:

            I. REVERSAL IS REQUIRED BECAUSE THE TRIAL
            COURT ERRONEOUSLY DENIED [DEFEN-
            DANT'S] MOTION FOR MISTRIAL MADE WHEN
            GREGORY TWICE TESTIFIED TO DAMAGING
            HEARSAY. IN THE ALTERNATIVE, REVERSAL
            IS REQUIRED BECAUSE THE CUMULATIVE
            PREJUDICE RESULTING FROM GREGORY'S
            HEARSAY TESTIMONY AND DAMAGING
            INFERENTIAL HEARSAY ELICITED BY THE
            PROSECUTOR DURING HER EXAMINATION OF
            DETECTIVE DONLON DEPRIVED [DEFENDANT]
            OF HIS CONSTITUTIONAL RIGHTS TO A FAIR
            TRIAL AND DUE PROCESS OF LAW.

We reject this.

      Defendant also complains about the sentence imposed, arguing:

            II. THE AGGREGATE SENTENCE – TWENTY
            YEARS OF IMPRISONMENT WITH MORE THAN
            SIXTEEN YEARS OF PAROLE INELIGIBILITY –
            CONSTITUTED AN ABUSE OF DISCRETION.

            III. THE MATTER MUST BE REMANDED FOR THE
            TRIAL COURT TO CORRECT AN ARITHMETIC
            ERROR CONTAINED IN THE JUDG[]MENT OF
            CONVICTION.

We reject Point II, but the State concedes, and we agree, that for the reasons

asserted in Point III a remand is necessary to correct the judgment of conviction.




                                                                            A-3475-16T4
                                         5
                                         I

      In his first point, defendant contends that Gregory Graham testified to

what his brother Jermaine saw and, in so doing, impermissibly bolstered

Jermaine's credibility with hearsay testimony. He also argues that Detective

Donlon's testimony inferentially conveyed information provided to him by

Devon Williams, who did not testify, thereby injecting impermissible hearsay

into the record. We first discuss the general principles that apply to defendant's

contentions and then discuss the two subparts to defendant's Point I separately.

                                        A

      In a criminal proceeding, both the United States Constitution and the New

Jersey Constitution guarantee an accused the right of confrontation. U.S. Const.

amend. VI; N.J. Const. art. I, ¶10. The right to confront witnesses is an essential

element of a fair trial and requires that the accused be given the opportunity to

defend against any accusers through cross-examination. Branch, 182 N.J. at

348-49. The admission of hearsay generally violates an accused's confrontation

rights. Crawford v. Washington, 541 U.S. 36, 51 (2004). But, if an out-of-court

statement falls within a recognized exception to the hearsay rule and is non -

testimonial, this constitutional right is not infringed. Davis v. Washington, 547

U.S. 813, 821 (2006).


                                                                           A-3475-16T4
                                        6
      A defendant's right to confrontation is generally implicated when "a

witness refers to specific information from a non-testifying third party." State

v. Weaver, 219 N.J. 131, 152 (2014). That is true even when a witness implies

the possession of "superior knowledge, outside the record, that incriminates the

defendant." Branch, 182 N.J. at 351. But it is permissible for a police officer

to testify about the reasons for approaching a suspect or investigating a crime

scene when explaining it was done "upon information received."              State v

Bankston, 63 N.J. 263, 268 (1973). Such an explanation is admissible for the

sole purpose of showing "that the officer was not acting in an arbitrary manner

or to explain his subsequent conduct." Ibid.

      In Bankston, for example, detectives received a tip and went to a Newark

bar to question the defendant, who matched a description given by an informant.

Id. at 265. The officers arrested the defendant after finding sixteen envelopes

of heroin under a pair of gloves near the defendant's seat at the bar. Ibid. At

trial, one of the arresting officers was allowed to testify that the police went to

the bar "based on information received," that they were looking for a "certain

individual," and that they had a "description of his clothing." Id. at 266. The

Court affirmed the reversal of the defendant's convictions because the State led

the jury to believe that an informant, who did not testify, told the police that the


                                                                            A-3475-16T4
                                         7
defendant had committed a crime.        Id. at 271.    The State argued that the

statement was admissible to offer an explanation for why the police went to that

tavern, but the Court determined there was no need to explain their actions

because the defendant did not allege they were acting arbitrarily, id. at 271-72,

and, so, testimony that the police went to the bar based "upon information

received" would have been sufficient, id. at 272.

      In Branch, the Court held that a detective's testimony explaining that the

suspect's picture was included in a photo array because of "information

received" constituted inadmissible hearsay and violated the Confrontation

Clause. 182 N.J. at 342. The Court reasoned that because the detective received

the tip before the identification and because there was no testimony or evidence

other than that identification, the jury could only speculate that the detective had

superior knowledge obtained through hearsay. Id. at 347-48. The defendant's

right to confrontation was violated because the nameless informant did not

testify and was not subject to cross-examination.

                                         B

      Unlike Bankston and Branch, the jury here was not left with the

inescapable inference that defendant's identity was provided by an unnamed,

non-testifying witness. The jury, for instance, heard Jermaine testify that he


                                                                            A-3475-16T4
                                         8
heard defendant referred to as "Cool C" on the night of the shooting and

"assumed that . . . was [defendant's] name." Jermaine also testified he told

Detective Donlon about the nickname and provided a physical description. At

some point after the interview, Detective Donlon spoke to Lieutenant Frampton

who knew defendant from his community policing activities.             At trial,

Lieutenant Frampton testified that defendant was known in the community as

"Cool C."1 Rather than being left with an inference that the police chose to

investigate defendant because a shadowy declarant – not presented for cross-

examination – implicated defendant in the crime, the jury heard witnesses link

defendant to the shooting, and defendant had the opportunity to confront and

cross-examine those witnesses.

      Bankston and Branch also recognize that the State should be allowed some

leeway in this manner so that it might describe the investigative process when

the defense has questioned its investigatory tactics. Branch 182 N.J. at 349-50;

Bankston 63 N.J. at 271-72. Defense counsel's opening statement questioned



1
   The State recognized it would be prejudicial to allow Detective Donlon to
testify about personal knowledge of defendant's nickname through prior
investigations. Instead, the State called Lieutenant Frampton who had personal
knowledge that defendant's friends and other community members called him
"Cool C." This evidence was admissible under N.J.R.E. 803(c)(19). See State
v. Perez, 150 N.J. Super. 166, 170-71 (App. Div. 1977).
                                                                        A-3475-16T4
                                       9
the validity of the investigation, asserting that the brothers could not identify the

shooter; counsel also argued that the brothers went to the hospital where Gregory

was being treated but never got the opportunity to speak with the investigating

officer. Yet, as the defense continued to argue,

             days later mysteriously, the police decided they knew
             who did it. As a result, the police went over the bridge
             and went into Philadelphia, armed with a picture of
             [defendant] because they had decided, the police, that
             he had done it.

Defense counsel also questioned the professionalism of the photo array

procedure and the reliability of the identification.

      Although effective advocacy for defendant, this opening statement

afforded grounds for the State's elicitation of evidence about the investigation

without violating Bankston and Branch. Under different circumstances, it may

have been impermissible for an officer to describe his investigation by testifying

that he spoke to a non-testifying witness. But the defense's challenge to the

adequacy or propriety of the investigation presented a legitimate purpose for the

testimony in question.

      To the extent that any error seeped into defendant's trial, we find it

harmless because there can be no "reasonable doubt" about whether, in light of

all the other evidence properly elicited, the inferential references to other out-


                                                                             A-3475-16T4
                                        10
of-court statements or information "led the jury to a result it otherwise might not

have reached." Bankston, 63 N.J. at 273; see also Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963) (expressing the harmless error test as requiring an examination

into "whether there is a reasonable possibility that the evidence complained of

might have contributed to the conviction").         And, even when inadmissible

evidence is elicited, the harmful effect may be avoided through curative

instructions that are "firm, clear, and [uttered] without delay." State v. Vellejo,

198 N.J. 122, 134-35 (2009); see also State v. Prall, 231 N.J. 567, 586 (2018).

      In this regard, we note that defendant argues on appeal that Gregory was

erroneously permitted to utter two hearsay statements. He testified, "I guess my

brother seen that he had a pistol or a gun . . .," and, a short time later, "[s]o like

my brother seen that the guy had a gun . . . ." The judge sustained the defense

objections and instructed the jury after each statement. The judge's immediate

instructions clearly directed the jury to disregard Gregory's statements about

what his brother might have said or seen.          These instructions sufficiently

protected defendant against any manifest injustice.




                                                                              A-3475-16T4
                                         11
                                        C

      We reach the same conclusion as to defendant's arguments about the

alleged seepage of hearsay information during Detective Donlon's testimony in

a way that violates the principles established in Branch and Bankston.

      Defendant argues that this seepage occurred perniciously, first with the

detective's testimony that his role as primary investigator was to "conduct[]

interviews" and look for witnesses. Then, as the direct testimony evolved into

more specific areas, the detective revealed that he spoke with the victim and his

brothers, including Anthony, who did not testify at trial:

             Q. And who was [Gregory] with? Was he with –

             A. At the hospital, Jermaine and Anthony.

             Q. And when you met with them, what did you do?

             A. I took a statement from them.

                   ....

             Q. And how cooperative were they at the time?

             A. Very cooperative.

He also revealed that as part of his investigation he interviewed Devon Williams,

who also did not testify at trial.




                                                                         A-3475-16T4
                                       12
      The problem, according to defendant, is that the detective not only

correlated what he learned from them as part of his testimony – thereby

providing hearsay information to the jury – but also that he conveyed that

information through his testimony about a surveillance video that captured the

disputants outside the Camden bar. For example, the detective was asked about

whether the video captured images of "[t]he possible suspect," and he added that

the video "coincide[d] with what the brothers told [him] that evening." So, while

defense counsel had the opportunity to cross-examine two of the brothers about

the information provided to the detective, he did not have that opport unity with

the third brother who did not testify.

      Defense counsel objected when any of the detective's testimony suggested

he was aware of statements that were not going to be subjected to cross-

examination.    For example, one defense objection was followed by the

prosecutor's agreement to limit the scope of the direct examination. When the

judge inquired of defense counsel whether she had any objection to the

prosecutor's proposal, defense counsel again pressed her point, arguing that "if

the Branch rule is violated, yes, [I object to] any reference to information

[coming from the detective] outside of the ken of the jurors."




                                                                         A-3475-16T4
                                         13
      To avoid the problem, the judge instructed the prosecutor to "simply go to

the next step in [the detective's] investigation without saying how he got there,"

and what followed reveals the effectiveness of the objection in avoiding a

Branch violation:

            Q. Okay. I'll show this to the jury on the overhead. And
            if you may, Detective, can you point out the person who
            you believed was the shooter in the still shot?

            A. You want me to get up or – the one with the white
            T-shirt, his head would be facing I guess to the right,
            has a beard.

                    ....

            Q. And how did you come to believe that?

            [DEFENSE COUNSEL]:              I'm gonna object to the
            hearsay.

            THE COURT:           All right, the question doesn't
            necessarily call for hearsay.

            [PROSECUTOR]: No, Your Honor.

            A. Through statements and description given.

            [DEFENSE COUNSEL]: Inferential hearsay.

Yet, defense counsel understandably persisted after that last answer to claim that

the testimony included "[i]nferential hearsay." That led to another discussion at

sidebar:


                                                                          A-3475-16T4
                                       14
            THE COURT: Well, he can testify to whether as he
            looks at this photo there's anybody there that has
            characteristics with what descriptions were that he
            received. Would you not agree with that?

            [DEFENSE COUNSEL]: I actually don't agree with the
            [c]ourt. In other words, what's the purpose of that?
            Why not get it from the people who gave . . . the
            descriptions and they –

                  ....

            THE COURT: All right, so I'm gonna strike his answer
            and have [the jury] disregard anything and move on in
            the other direction that we just discussed, if you choose
            to.

            [PROSECUTOR]: Is it proper to say did you come to
            determine that that was a suspect, what did you base it
            on, it would have been the descriptions provided.

            [DEFENSE COUNSEL]: Your Honor, I just don't
            know why this needs to come from the detective. Isn't
            what the State wants to show coming from the
            witnesses who were there?

            THE COURT: But [the detective] can describe the
            investigation he undertook, what he's doing step by
            step, and that's what he does, he does gather
            information from people and does take other steps
            based on that. And the State wants to show he did, I'm
            assuming, a sensible investigation. They're allowed to
            put that on, and that's not a hearsay problem.

With that, the prosecutor informed the judge that she would "just . . . go in

another direction," and the judge instructed the jury to "disregard the witness's


                                                                         A-3475-16T4
                                      15
answer to the question about the basis for identifying that person that he just

talked about."

      Certainly, the manner in which the prosecution sought to proceed

throughout the detective's testimony had the potential to violate the

constitutional principles outlined in Branch.       But sound objections were

interposed and hearsay seepage was prevented by the judge's sustaining of those

objections and his instructions to the jury. We see no error. 2

                                        II

      In his second point, defendant argues that the judge abused his discretion

in finding and applying aggravating factors one and two, and also that we should

remand count five for the trial court to reconsider whether that count should run

consecutively to count one. We find insufficient merit in Point II to warrant

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

following few comments.

      A sentencing judge enjoys "a far-ranging discretion as to the sources and

types of evidence used to assist him or her in determining the kind and extent of

punishment to be imposed."          State v. Davis, 96 N.J. 611, 619-20


2
   To the extent other sub-arguments might be discerned from defendant's
contentions in his Point I, we find they have insufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
                                                                           A-3475-16T4
                                       16
(1984). Although we may modify a sentence when a sentencing judge is "clearly

mistaken," State v. Jabbour, 118 N.J. 1, 6 (1990), we may not replace that

judgment with our own. State v. Lawless, 214 N.J. 594, 606 (2013). Beyond

that, a sentence will be reversed only if it "shocks the judicial conscience." State

v. O'Donnell, 117 N.J. 210, 215-16 (1989).

      When passing sentence, a judge must "state on the record the reasons for

imposing the sentence." N.J.S.A. 2C:43-2(e); accord R. 3:21-4(g). When a

prison sentence is imposed, the court must also consider "the defendant's

eligibility for release under the law governing parole and the factual basis

supporting its findings of particular aggravating or mitigating factors affecting

sentence." N.J.S.A. 2C:43-2(e); accord R. 3:21-4(g). The sentence must be

reasonable "in light of all the relevant factors considered." State v. Natale, 184

N.J. 458, 488 (2005). To arrive at a reasonable sentence, the judge must balance

the factors and determine "whether there is a preponderance of aggravating or

mitigating factors." State v. Kruse, 105 N.J. 354, 359 (1987). This calls for a

thoughtful analysis of each applicable aggravating and mitigating factor not

merely "counting [ ] one against the other." State v. Denmon, 347 N.J. Super.

457, 467-68 (App. Div. 2002).




                                                                            A-3475-16T4
                                        17
         In sentencing defendant, the judge found and applied aggravating factors

one, two, three, six and nine. N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9). In

weighing the first and second aggravating factors, the judge explained "there

really was minimal interaction" between defendant and the victim, that "[t]here

was no heated exchange or provocation justifying a shooting." Relying on

evidence adduced during the trial, the judge explained that defendant "fired four

shots at the back of the victim," who suffered wounds to his arm, knee, and

thigh.     The judge also recognized from the trial testimony that the victim

"suffered both physical and mental distress," noting he incurred "physical

scarring" and a "bullet remains in his arm." Consequently, the judge concluded

the first two aggravating factors were entitled to "high weight." 3

         Defendant argues that the first aggravating factor – the nature and

circumstances of the offense, N.J.S.A. 2C:44-1(a)(1) – requires an offense that

is malicious or carefully calculated. We disagree; factor one allows for the

consideration of "conduct in excess of that required to commit the crime." State

v. Locane, 454 N.J. Super. 98, 124 (App. Div. 2018). The jury found that

defendant fired four shots on a public street at three fleeing men.           The


3
   The judge stressed, however, that he considered the victim's mental distress
"only in [a] very limited[,] general sense" and gave "it extremely light weight
relative to everything else."
                                                                          A-3475-16T4
                                        18
surveillance video may not have shown the shooting itself, but it does reveal a

large number of bar patrons, some of whom exited the bar to observe the

disturbance before it turned violent. The footage also reveals that the bar is

located on a busy city street with considerable car and foot traffic,

notwithstanding the late hour. Given this level of activity and the danger

defendant's actions posed to the public, the excessiveness of defendant's conduct

amply supported a finding of aggravating factor one.

        Aggravating factor two is implicated when a victim is "substantially

incapable of exercising normal physical or mental power of resistance."

N.J.S.A. 2C:44-1(a)(2).      When considering factor two, a sentencing judge

should undertake a "pragmatic assessment of the totality of harm inflicted" on

the victim.     State v. Kromphold, 162 N.J. 345, 358 (2000).           A victim's

vulnerability may warrant application of this factor. State v. Kruse, 105 N.J.

354, 362-63 (1987) (holding the trial court properly considered the victim's

vulnerability as an aggravating factor because he was unarmed when the

defendant acted with a bat). Beyond defendant's obvious advantage of having a

gun against three unarmed and retreating men, Gregory was not even facing

defendant when shot. The judge was entitled to apply aggravating factor two.4


4
    We find no error in the judge's application of the other aggravating factors.
                                                                            A-3475-16T4
                                        19
      The only mitigating factor the judge found was that the victim induced or

facilitated the commission of the crime. N.J.S.A. 2C:44-1(b)(5). Defendant

argues that its application is inconsistent with the judge's findings on

aggravating factors one and two. We disagree. The judge expressed that he

interpreted this factor broadly and gave defendant the benefit of that broad

interpretation because the case was distinguishable from "those where the

perpetrator plans an attack over time and then carries it out against a particular

victim or lies in wait for a potential victim to appear." To be sure, the record

reveals that the Graham brothers sought out Williams to confront him about his

earlier fracas with Anthony, so the judge had a factual basis for applying the

fifth mitigating factor. But that doesn't mean that such a finding precludes the

judge's findings on aggravating factors one and two.

                                       III

      Defendant argues in Point II, and the State concedes, that the judgment o f

conviction incorrectly identifies the period of parole ineligibility. The judge

sentenced defendant to a fifteen-year prison term on the second-degree

aggravated assault conviction, which also carried an eighty-five percent period

of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The

judge accurately calculated defendant would be ineligible for parole under this


                                                                          A-3475-16T4
                                       20
count for twelve years and nine months. He also imposed a consecutive seven-

year term on the fifth count, with forty-two months of parole ineligibility, to run

consecutively to the other count. The aggregate prison term is twenty-two years,

and the aggregate period of parole ineligibility is sixteen years and three months

of that term. The judgment of conviction mistakenly identifies the latter period

as seventeen years and nine months. We remand for the limited purpose of

correcting the judgment of conviction on this point.

                                      ***

      The judgment of conviction is affirmed but the matter remanded for a

correction of the mistake in the judgment referred to in Section III of this

opinion. We do not retain jurisdiction.




                                                                           A-3475-16T4
                                       21
