                        NOT FOR PUBLICATION WITHOUT THE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-3700-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

IRVING FRYAR, a/k/a IRVING D.
FRYAR, SMURF FRYAR,

     Defendant-Appellant.
_________________________________________

              Argued May 22, 2018 – Decided June 27, 2018

              Before Judges Yannotti, Mawla and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 13-10-0197.

              Lauren S.    Michaels, Assistant Deputy Public
              Defender,    argued the cause for appellant
              (Joseph E.   Krakora, Public Defender, attorney;
              Lauren S.     Michaels, of counsel and on the
              briefs).

              Sarah Lichter, Deputy Attorney General, argued
              the cause for respondent (Gurbir S. Grewal,
              Attorney General, attorney; Sarah Lichter, of
              counsel and on the brief).

PER CURIAM
         Defendant Irving Fryar and his mother Allene McGhee were

charged       with    second-degree      conspiracy          to   commit     theft      by

deception, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-4(a); and second-degree

theft by deception, N.J.S.A. 2C:20-4(a). Defendant and McGhee were

tried before a jury and found guilty on both counts. After denying

defendant's motion for a new trial, the trial judge sentenced him

to   a    five-year     term   of   imprisonment       and    ordered      him   to   pay

restitution of $616,617.27. Defendant appeals from the judgment

of conviction dated December 9, 2015. We affirm.

                                         I.

         We   briefly   summarize      the       testimony    presented     at    trial.

William Barksdale was the owner of several businesses, including

Barksdale Business Group (BBG), Barksdale Loan Consultants (BLC),

and Barksdale Investment Properties (BIP). Barksdale explained

that BBG processed mortgage loans, and BLC was a mortgage company.

BIP owned rental properties and also purchased, rehabilitated and

sold properties.

         While   he   was   visiting    Florida,       Barksdale     learned       about

mortgage schemes involving multiple home equity lines of credit

(HELOCs). Barksdale explained how such schemes work:

               If you have a property, let's say it's worth
               $300,000, and you have a first mortgage of
               [$]100,000, you have approximately $200,000
               difference between the price of the house,
               [the] current value and [the] first mortgage.

                                             2                                   A-3700-15T4
           And you can borrow up to [eighty] percent of
           the actual equity of the house. If you have
           $200,000 equity, at [eighty] percent you can
           take loans out for $160,000. But with the
           multiple lines of credit, it takes usually
           [sixty] to [ninety] days for the liens to be
           recorded at the courthouse. If you apply for
           more than one loan at the same time, it won't
           hit the courthouse and be recorded so you can
           retain multiple lines of credits [and] instead
           of having one loan for 160,000, you can get
           five loans for like 800,000. It [gives] [you]
           more buying power[] to buy or flip properties
           or use at your discretion.

     Barksdale stated that the same property is used as security

for all of the loans. He said a person carrying out this scheme

has to close on the transactions "in a short amount of time before

one bank finds out about another bank" because, otherwise, the

banks will not approve the loans.

     Barksdale further testified that he first met defendant at a

closing   when   Barksdale   purchased   a   home   in   Burlington   from

defendant's corporation. McGhee had been living in the home and

she needed a place to reside. At the time, Barksdale was in the

process of rehabilitating a home on Glenview Lane in Willingboro.

Barksdale sold the Glenview Lane property to McGhee, and BBG

retained a lien on the property in the amount of $144,000.

     In 2009, Barksdale and defendant began operating a fitness

camp in Willingboro and Burlington. Barksdale ran the camp, and

defendant would visit several times each week to work out and meet


                                   3                              A-3700-15T4
persons at the camp. At some point, defendant approached Barksdale

and asked him if he could get him about $500,000. They had a

conversation about participating together in a HELOC scheme.

     Barksdale explained to defendant how a HELOC scheme works.

He said multiple lines of credit had to be acquired within a short

time, so that the banks would not be aware that there were other

loans secured by the same property. Barksdale also said "the money

had to be paid back quickly."

     Barksdale   and   defendant   spoke   about   defendant's   primary

residence, which was in Springfield. Defendant told Barksdale a

loan payment had not been processed, and the home had gone into

foreclosure. Barksdale helped defendant in having McGhee purchase

the Springfield property, and he assisted McGhee in applying for

the loan to make the purchase. Barksdale said defendant needed

money to pay back several investors and make the down payment on

the Springfield home. Defendant told Barksdale he was interested

in pursuing the HELOC scheme.

     Barksdale and defendant discussed the property that would be

used in the HELOC scheme, and they decided to use McGhee's property

on Glenview Lane in Willingboro. Barksdale testified that McGhee

"had good credit and could qualify for the loans."               McGhee's

involvement was important because she owned the home, had good

credit, and needed to sign the documents.

                                   4                              A-3700-15T4
     Barksdale selected the six banks for the HELOC scheme and he

discussed his selections with defendant. Barksdale chose banks

that made loans to him in the past. Barksdale and defendant

explained the HELOC scheme to McGhee. They told McGhee to use

defendant's phone number on her loan applications, should any

questions arise. Barksdale also overheard a phone conversation

during which defendant told McGhee "to do what was needed to get

the loans completed."

     With the HELOC applications, McGhee submitted a W-2 form from

2008 and pay stubs from 2009, which identified New Jerusalem House

of God (NJHOG) as her employer. At the time, defendant was a pastor

at NJHOG. McGhee's W-2 stated that she had income of $87,532.16

in 2008. However, an accountant whose firm had provided services

to NJHOG testified that NJHOG did not have employees in 2008.

     Between November 2009 and January 2010, McGhee applied for

and was granted HELOC loans at six different banks, using the

Glenview Lane property as collateral for all of the loans. The

Bank, Cornerstone Bank, Sun Bank, Susquehanna Bank, Beneficial

Bank, and Roma Bank issued HELOC loans to McGhee. Barksdale did

not sign any of the loan documents, but he drove McGhee to three

of the closings, and went into the banks with her for two of the

closings. All six loans closed, and McGhee obtained a total amount

of $616,617.27.

                                5                           A-3700-15T4
      All six banks issued payoff checks in the amount of about

$130,000 to BBG to satisfy the existing mortgage on the Glenview

Lane property. Barksdale deposited these checks, which totaled

about $800,000, in BBG's account. He explained that defendant had

the discretion to control the use of all the funds in the account

except for the amount needed to pay off the existing mortgage on

the Glenview Lane property.

      Barksdale said that before the HELOCs closed, he issued at

defendant's direction, six $20,000 checks to Jerry Hostetter, who

was one of defendant's business partners. Defendant told Barksdale

that after the HELOCs closed, he should take the $120,000 Barksdale

advanced to Hostetter from the monies obtained in the HELOC scheme.

      Defendant also directed Barksdale to use $106,000 from the

HELOCs to pay Duane Ortega, who had advanced funds to defendant

for   the   down   payment   for    the   purchase   of   the    property      in

Springfield.   Barksdale     also   disbursed   monies    from    the    HELOCS

directly to defendant. Other monies from the HELOCS were deposited

in joint bank accounts held by McGhee and defendant, and defendant

withdrew funds from those accounts.

      Barksdale testified that at the time of trial, he was serving

a prison sentence. He explained that in December 2011, he pleaded

guilty in federal court to conspiracy to commit wire fraud. As

part of his plea, Barksdale admitted that he had conspired with

                                      6                                 A-3700-15T4
McGhee in the HELOC scheme involved in this case. He also admitted

he had advised and assisted McGhee in carrying out that scheme.

      Barksdale entered into a cooperation agreement with federal

prosecutors, which required that he tell the truth and cooperate

with federal and state authorities. Barksdale stated that he had

received an eighteen-month reduction in his prison sentence as a

result of his cooperation. The federal court ultimately sentenced

Barksdale to twenty months in jail.

      Barksdale testified in this case on July 29, 2015. He said

he was due to be released on December 15, 2015, but he could be

released sometime between August and October 2015, because he had

earned "good time" credits. Barksdale said he did not have a

cooperation agreement with the State, but he could benefit from

testifying for the State in this matter.

      Barksdale also stated he was under the impression the State's

prosecutor would write to the federal authorities and indicate he

had been cooperative. Barksdale said if such a letter was sent,

he might be released from jail "within a month or so." He stated,

however, that there was no guarantee he would be released early.

That was up to the judge in the federal court. Barksdale said he

had   no   written   agreement   with   the   State,   and   the   federal

cooperation agreement only required that he "tell the truth."



                                    7                              A-3700-15T4
      The State also presented testimony from persons at the six

banks who issued the HELOC loans. The State also presented the

HELOC loan documents and other bank records. Defendant and McGhee

did not testify at trial.

      In his closing statement, defendant's attorney argued that

the State had not presented sufficient evidence to show defendant

participated in the HELOC scheme. He said there was no evidence

defendant knew about or presented McGhee's false W-2 statement to

the banks with the HELOC applications.

      Defendant's attorney also asserted defendant did not sign any

of the documents related to the HELOC scheme. He did not attend

the   closings,   and   did   not   receive   any   checks   from   the   loan

closings. Defendant's attorney attacked Barksdale's credibility,

and said the jury should not believe anything Barksdale said.

      The jury found defendant and McGhee guilty of both charges.

Defendant appeals and raises the following arguments:

           POINT I
           THE TRIAL JUDGE'S REFUSAL TO ALLOW DEFENSE
           COUNSEL TO CROSS-EXAMINE ALLEGED UNINDICTED
           CO-CONSPIRATOR WILLIAM BARKSDALE, THE STATE'S
           STAR WITNESS, REGARDING THE SPURIOUS CLAIMS
           HE MADE AGAINST [McGHEE'S] ATTORNEY IN AN
           ATTEMPT TO REDUCE HIS FEDERAL SENTENCE AND/OR
           OBTAIN   AN    EARLIER   RELEASE,    VIOLATED
           DEFENDANT'S RIGHTS TO CONFRONTATION, DUE
           PROCESS OF LAW AND A FAIR TRIAL.

           . . . .


                                      8                              A-3700-15T4
          POINT II
          THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
          IT COULD USE BARKSDALE'S PRIOR INCONSISTENT
          STATEMENTS – WHICH LARGELY EXCULPATED FRYAR –
          AS SUBSTANTIVE EVIDENCE WAS REVERSIBLE ERROR.
          (Not Raised Below).

          POINT III
          FRYAR WAS DENIED A FAIR TRIAL WHEN THE
          PROSECUTOR   IMPROPERLY    VOUCHED   FOR   AND
          BOLSTERED BARKSDALE'S CREDIBILITY BY TELLING
          THE JURY IN SUMMATION THAT HE HAD NO
          COOPERATION AGREEMENT WITH [THE] STATE AND
          ONLY "A VAGUE HOPE THAT MAYBE SOME DAY
          POSSIBLY HE MIGHT GET OUT SLIGHTLY EARLIER,"
          DESPITE HIS KNOWLEDGE THAT BARKSDALE HAD GONE
          SO FAR AS TO FALSELY ACCUSE [McGHEE'S]
          ATTORNEY OF MISCONDUCT IN THE HOPES OF FURTEHR
          REDUCING HIS SENTENCE. (Not Raised Below).

          POINT IV
          THE CUMULATIVE EFFECT OF THE AFOREMENTIONED
          ERRORS DENIED FRYAR A FAIR TRIAL. (Not Raised
          Below).

                                 II.

     Defendant first argues that the trial judge erred by refusing

to allow his attorney to cross-examine Barksdale regarding certain

"claims" he allegedly made against McGhee's attorney Mark Fury

prior to trial. Defendant contends the judge's ruling denied him

his constitutional rights to confrontation, due process, and a

fair trial. We disagree.

     The record reveals the following. Prior to the start of

defendant’s   trial,   the   prosecutors   learned   that   Fury   had

communicated with Barksdale in a series of text messages. In one


                                  9                           A-3700-15T4
of those messages, Fury stated that he would be "coming after"

Barksdale.     Because      Barksdale    claimed    he    had   known     Fury    for

approximately five years and Barksdale believed the texts were

threatening, the State filed a motion to disqualify Fury from

representing McGhee at trial.

     The   trial      judge   denied    the    motion,    finding     that    Fury's

personal relationship with Barksdale did not create a conflict of

interest sufficient to disqualify Fury from representing McGhee.

In her decision, the judge also stated that the content of the

messages      was    not   relevant     to    whether    Fury   had   a   personal

relationship        with   Barksdale,    but   nevertheless     found     that    the

alleged threats were not credible.

     Later, during the trial, Barksdale testified for the State

about   his    relationships      with       defendant    and   McGhee    and     his

involvement in the HELOC scheme. When he cross-examined Barksdale,

defendant's attorney sought to question Barksdale about the text

messages he sent to Fury and the false statements Barksdale

allegedly made about the texts. The judge ruled that the defense

could not use specific instances of conduct for the purposes of

impeaching Barksdale's character for truthfulness.

     On appeal, defendant argues that if defense counsel had been

permitted to question Barksdale about the messages sent to Fury,

he would have been able to show that Barksdale hoped to benefit

                                         10                                  A-3700-15T4
from his cooperation with the State by making baseless charges

against Fury. Defendant argues his attorney "could have show[n]

that    [Barksdale's]    bias     and   motivation     were    so   strong   that

[Barksdale] . . . lie[d] when he fabricated allegations against

[McGhee's] attorney."

       "[A]   trial   court's   evidentiary        rulings    are   'entitled   to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.'" State v. Brown, 170 N.J.

138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)). We will "not substitute [our] own judgment for that of

the trial court, unless 'the trial court's ruling is so wide of

the mark that a manifest denial of justice resulted.'" State v.

J.A.C., 210 N.J. 281, 295 (2012).

       The Sixth Amendment to the Constitution of the United States

and    Article   I,   Paragraph    10   of   the    New   Jersey    Constitution

guarantee an accused in a criminal case the right to confront

adverse witnesses. State v. Guenther, 181 N.J. 129, 147 (2004).

"A defendant's right to confrontation is exercised through cross-

examination, which is recognized as the most effective means of

testing the State's evidence and ensuring its reliability." Ibid.

(citations omitted).

       The Confrontation Clause was not, however, "intended to sweep

aside all evidence rules regulating the manner in which a witness

                                        11                               A-3700-15T4
is impeached with regard to general credibility." Id. at 150

(citing Davis v. Alaska, 415 U.S. 308, 321 (1974)) (Stewart, J.,

concurring).   In   this   case,   the   trial   judge   properly   applied

N.J.R.E. 405(a) and N.J.R.E. 608 in limiting defendant's attorney

from questioning Barksdale about his communications with Fury.

     N.J.R.E. 405(a) provides that, "[w]hen evidence of character

or a trait of character of a person is admissible, it may be proved

by evidence of reputation, evidence in the form of opinion, or

evidence of conviction of a crime which tends to prove the trait."

N.J.R.E. 405(a) states, however, that "[s]pecific instances of

conduct not the subject of a conviction of a crime shall be

inadmissible."

     Furthermore, N.J.R.E. 608 governs the admission of character

evidence for truthfulness or untruthfulness. The rule states that:

          (a) The credibility of a witness may be
          attacked or supported by evidence in the form
          of opinion or reputation, provided, however,
          that the evidence relates only to the witness'
          character for truthfulness or untruthfulness,
          and provided further that evidence of truthful
          character is admissible only after the
          character of the witness for truthfulness has
          been attacked by opinion or reputation
          evidence or otherwise. Except as otherwise
          provided by Rule 609[1] and by paragraph (b)

1
  N.J.R.E. 609 provides that, "[f]or the purpose of affecting the
credibility of any witness, the witness' conviction of a crime
shall be admitted unless excluded by the judge as remote or for
other causes."


                                    12                              A-3700-15T4
           of this rule, a trait of character cannot be
           proved by specific instances of conduct.

           (b) The credibility of a witness in a criminal
           case may be attacked by evidence that the
           witness made a prior false accusation against
           any person of a crime similar to the crime
           with which defendant is charged if the judge
           preliminarily   determines,   by   a   hearing
           pursuant to Rule 104(a), that the witness
           knowingly made the prior false accusation.

           [(emphasis added).]

     Our evidence rules "bar 'the use of prior instances of conduct

to attack the credibility of a witness for two essential reasons:

to prevent unfairness to the witness and to avoid confusion of the

issues before the jury.'" State v. Scott, 229 N.J. 469, 498 (2017)

(quoting Guenther, 181 N.J. at 141 (2004)) (Albin, J., concurring).

Furthermore, N.J.R.E. 608 "was designed to prevent unfair foraging

into the witness's past" and to prevent "wide-ranging collateral

attacks on the general credibility of a witness [that] would cause

confusion of the true issues in the case." Guenther, 181 N.J. at

141-42.

     Here, the trial judge determined that by seeking to question

Barksdale about the messages Barksdale sent to Fury and his alleged

false statements about them, defendant's attorney was seeking to

attack    Barksdale's   character    for   untruthfulness   by   showing

specific instances of conduct. The judge correctly determined that

N.J.R.E. 405(a) and N.J.R.E. 608 precluded that line of inquiry.

                                    13                           A-3700-15T4
      Furthermore, the application of our evidence rules did not

unfairly    limit     the     defense          from     confronting       Barksdale's

credibility. Indeed, the record shows that defendant's attorney

questioned Barksdale extensively about his cooperation agreement

with the federal government, which allegedly showed that Barksdale

had a motive to lie about defendant's involvement in the HELOC

scheme.

      Defendant's attorney also questioned Barksdale extensively

about his relationship with defendant, and sought to show the

evidence did not support Barksdale's claim that defendant was the

key   participant    in     the       HELOC   scheme.    Simply    put,    at    trial,

defendant    had    ample     opportunity        to     confront       Barksdale     and

challenge his credibility.

      Defendant also argues that the trial judge's ruling was

erroneous because it precluded him from showing that Barksdale was

biased. "The Confrontation Clause permits a defendant to explore,

in cross-examination, a prosecution witness's alleged bias." State

v. Bass, 224 N.J. 285, 301 (2016).

      Bias has been defined as "the relationship between a party

and a witness which might lead the witness to slant, unconsciously

or otherwise, his testimony in favor of or against a party." Scott,

229 N.J. at 482 (quoting United States v. Abel, 469 U.S. 45, 47

(1984)).    Nevertheless,         a    defendant's      right     to    confrontation

                                          14                                    A-3700-15T4
"do[es] not entitle counsel 'to roam at will under the guise of

impeaching the witness.'" Bass, 224 N.J. at 302 (quoting State v.

Pontery, 19 N.J. 457, 473 (1955)).

     Here, Barksdale's text messages to Fury and his alleged false

statements about them were not probative of bias against defendant.

Barksdale's   messages   and   statements   had   no   bearing   upon   the

offenses for which defendant was charged or any bearing upon

Barksdale's relationship with defendant.

     The messages and statements also did not create an inference

that Barksdale would be inclined to slant his testimony against

defendant or McGhee. Indeed, as the trial judge stated:

          [t]he   only   reason  for   questioning   Mr.
          Barksdale regarding the texts would be in
          essence to demonstrate to the jury that he is
          a liar based on specific instances of conduct.
          To show that because he lied about the texts
          he probably also lied in his testimony is
          exactly the type of evidence that is barred
          by [N.J.R.E.] 405 and 608. Here, there is not
          a prior conviction related to [the] text
          messages and the character trait [for]
          [untruthfulness] is not an essential element
          of the charged claim or defense.

     We are convinced the judge's decision to preclude defendant's

attorney from questioning Barksdale about the text messages was

not a mistaken exercise of discretion. The judge's ruling was

consistent with the applicable rules of evidence, and did not deny




                                  15                               A-3700-15T4
defendant of his rights to confront Barksdale, due process, or a

fair trial.

                                         III.

      Next, defendant argues the trial judge erred by failing to

instruct the jury it could consider prior inconsistent statements

by witnesses as substantive evidence. Defendant did not, however,

raise    this     objection   to   the    jury    instructions      at     trial.    We

therefore must determine whether the absence of the instruction

was plain error.

      Generally, "an appellate court will not disturb a jury's

verdict based on a trial court's instructional error 'where the

charge, considered as a whole, adequately conveys the law and is

unlikely to confuse or mislead the jury, even though part of the

charge, standing alone, might be incorrect.'" Wade v. Kessler

Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143

N.J. 235, 254 (1996)). The focus is upon whether the instructions

are     capable    of   producing    an       unjust    result     or     prejudicing

substantial rights. Fisch v. Bellshot, 135 N.J. 374, 392 (1994).

      On    appeal,     defendant    argues      that    at      trial,     Barksdale

minimized    his    involvement     in    the    HELOC   scheme     and     portrayed

defendant as the mastermind of the scheme. He contends Barksdale's

prior statements "told an altogether different story," which was

much more favorable to the defense. He argues that the trial

                                         16                                   A-3700-15T4
judge's   failure   to   charge    the     jury   that   it   could   consider

Barksdale's prior inconsistent statements as substantive evidence

deprived him of due process and a fair trial.

       In her final instructions to the jury, the trial judge

addressed prior inconsistent statements of witnesses. The judge

stated:

           You have heard that, before this trial,
           witnesses  made   statements  that   may  be
           different from their testimony in the trial.
           It is up to you to determine whether these
           statements were made and whether it was
           different from the witness' testimony in the
           trial.

           These earlier statements were brought to your
           attention only to help you decide whether to
           believe the witness' testimony here at trial.
           You cannot use it as proof of the truth of
           what a witness said in the earlier statement.
           You can only use it as one way of evaluating
           that witness' testimony in this trial.

       The judge further explained that the jury could take into

consideration    "whether   the    witness    made   any      inconsistent    or

contradictory statements" and "the possible bias, if any, in favor

of the side for whom the witness testified." The judge did not,

however, instruct the jury that a prior inconsistent statement

"may be considered by [the jury] as substantive evidence of the

prior contradictory statement or omitted statement." See Model

Jury   Charges   (Criminal),      "Prior    Contradictory      Statements     of

Witnesses (No Defendant)" (approved May 1994).

                                     17                                A-3700-15T4
     When    a    trial     judge     fails     to   instruct     the    jury   on    the

substantive use of a prior inconsistent statement, the question

on appeal is whether the statement at issue relates solely to

credibility, or whether the statement has value as substantive

evidence bearing upon a disputed issue of fact. State v. Hammond,

338 N.J. Super. 330, 342-43 (App. Div. 2001). Here, defendant

argues    that    the   inconsistencies         in   Barksdale's        testimony,      if

accepted by the jury as substantive evidence, would have made the

jury less likely to find him guilty.

     The    record      shows,       however,    that    any    inconsistencies         in

Barksdale's testimony related primarily to his credibility. At

trial, Barksdale noted that he was testifying six years after the

HELOC loan scheme was carried out, and he did not recall some

details of the transactions. Moreover, any inconsistencies between

Barksdale's trial testimony and his prior statements about the

HELOC scheme did not directly contradict those parts of his

testimony which detailed defendant's involvement in the scheme and

the benefits defendant derived therefrom.

     Defendant places great weight upon the fact that when he

pleaded guilty to the federal charges, Barksdale did not mention

defendant.       However,     this    only    showed    that     Barksdale      did   not

identify defendant as a participant in the HELOC scheme when he

pleaded    guilty.      The   prior     statement       was    relevant   to    whether

                                          18                                     A-3700-15T4
Barksdale's      trial   testimony    was     credible,    but     it   was    not

substantive evidence showing that defendant did not conspire to

or participate in the HELOC scheme.

     We therefore conclude that the absence of an instruction

informing the jury that it could consider any prior inconsistent

statement of a witness as substantive evidence did not constitute

plain error. It was not an error "clearly capable of producing an

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

                                      IV.

     Defendant further argues he was denied a fair trial because

of certain comments the assistant prosecutor made in his summation.

Defendant contends the prosecutor's comments require a new trial.

     To    warrant   reversal   of    a     conviction,   "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." State

v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach,

146 N.J. 208, 214 (1996)). In making this assessment, we "must

consider   (1)    whether   defense   counsel     made    timely    and    proper

objections to the improper remarks; (2) whether the remarks were

withdrawn promptly; and (3) whether the court ordered the remarks

stricken from the record and instructed the jury to disregard

them." State v. Frost, 158 N.J. 76, 83 (1999).

                                      19                                  A-3700-15T4
     Where defense counsel fails to object to the challenged

comments during summation, it "suggests that defense counsel did

not believe the remarks were prejudicial at the time they were

made." Id. at 84 (citing State v. Bauman, 298 N.J. Super. 176, 207

(App. Div. 1997)). "The failure to object also deprives the court

of an opportunity to take curative action." Ibid.

     Under those circumstances, the comments should be deemed

harmless, unless they were "sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise

might not have reached." State v. Bakka, 176 N.J. 533, 548 (2003)

(quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

     In support of his argument, defendant cites the following

comments by the assistant prosecutor:

          The fact is Mr. Barksdale doesn't have a
          strong incentive to cooperate with the State.
          There's no formal cooperating agreement. There
          has never been a formal cooperating agreement
          between the State and Mr. Barksdale. He has a
          vague hope that maybe some day possibly he
          might get out slightly earlier if he
          cooperates with the State. He could get out
          in August at the earliest. We're in August
          already. I would submit to you that he does
          not have a strong incentive to cooperate with
          the State.

     Here,   defendant   argues   that   the   assistant   prosecutor

improperly vouched for Barksdale's credibility. He also argues

that the prosecutor bolstered Barksdale's testimony by suggesting


                                  20                          A-3700-15T4
he no longer had an incentive to cooperate with the government at

all.

       As   we    have    explained,       on   direct   examination,   Barksdale

testified        that    he    had   a   cooperation     agreement   with   federal

prosecutors. He testified that the agreement had already been

taken into account when he was sentenced. Barksdale also stated

that at the time of trial, he had no formal agreement with the

State or the federal government, but it was his impression that

if he cooperated in the prosecution of defendant and McGhee, his

federal prison sentence might be shortened by "a month or so."

Barksdale emphasized that this was "still up to the judge." He

said his only obligation was to tell the truth.

       During his closing argument, defendant's attorney argued that

Barksdale was not a credible witness and the jury should not accept

anything he said about defendant's involvement in the HELOC scheme.

He stated, in pertinent part:

             Now, the State has not prosecuted [Barksdale],
             nor does the State have an[y] intention of
             prosecuting him. In fact, as you heard, the
             State wrote glowing comments to the federal
             judge who sentenced him. Which is one of the
             reasons, . . . that he got such a good deal.

       Defendant's            attorney     also    stated     that    the     judge

"has given you an instruction on how to weigh [the credibility of]

somebody who pled guilty." Counsel stated that Barksdale was


                                           21                               A-3700-15T4
"trying to sing for his supper. He's got skin in the game. He

wants a good result here and he's willing to do anything for it."

       We   are   convinced     that     the    prosecutor's      remarks   were    a

reasonable response to defense counsel's closing argument. The

prosecutor's statements were fair comment on the evidence. The

evidence     showed    that     Barksdale       never   had   a   formal    written

cooperation agreement with the State.

       Moreover, the evidence supported the prosecutor's statement

that Barksdale did "not have a strong incentive to cooperate with

the State." Barksdale had a cooperation agreement with the federal

prosecutors, but when he testified at defendant's trial, his

cooperation could only result in a possible reduction of his

federal sentence by "a month or so."

       We therefore conclude the prosecutor's statements were not

improper. Furthermore, because defendant's attorney did not object

to the remarks when they were made, it must be presumed counsel

did not view the remarks as prejudicial to the defense. Frost, 158

N.J.   at    84   (citing      Bauman,    298    N.J.    Super.    at   207).    The

prosecutor's remarks did not deny defendant of a fair trial or

require reversal of his conviction.

                                          V.

       Defendant      argues    that     even     if    the   individual     errors

complained of do not rise to the level of plain error, their

                                         22                                 A-3700-15T4
cumulative    impact     warrants     reversal   of   his   conviction.    We

disagree.

      The cumulative error doctrine provides that where a court's

legal errors "are of such magnitude as to prejudice the defendant's

rights or, in their aggregate have rendered the trial unfair," a

new trial must be granted. State v. Orecchio, 16 N.J. 125, 129

(1954). However, even where a defendant alleges multiple errors,

"the theory of cumulative error will still not apply where no

error was prejudicial and the trial was fair." State v. Weaver,

219 N.J. 131, 155 (2014).

      Here, the errors complained of did not deny defendant his

right to a fair trial. As noted, the judge's omission of a portion

of   the   instruction   on   prior    inconsistent   statements   made    by

witnesses may have been erroneous, but it did not rise to the

level of plain error. The other claimed errors were not prejudicial

and did not deny defendant his right to a fair trial. We conclude

the cumulative error doctrine does not apply in this case.

      Affirmed.




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