                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                     State v. Orlando Trinidad (A-65-18) (081881)

Argued November 4, 2019 – Decided March 18, 2020

Timpone, J., writing for the Court.

        Defendant Orlando Trinidad, formerly an officer with the Bloomfield Police
Department (BPD), was tried for misconduct, making false statements, falsifying records,
and other offenses following an automobile stop gone awry. In this appeal, the Court
considers several evidentiary issues and rulings that arose at trial. First, the Court
considers whether a police officer’s testimony that Trinidad’s actions “appeared to have
been criminal” unfairly influenced the jury and prejudiced Trinidad’s trial. Second, the
Court considers whether the trial judge should have barred the victim’s testimony with
respect to high-profile police brutality cases under N.J.R.E. 403 because it was
prejudicial. The Court also considers Trinidad’s challenges to his sentence and to the
trial court’s denial of his motion for a judgment of acquittal.

       At trial, the arresting officers and the victim, Marcus Jeter, disputed what occurred
on the evening of June 7, 2012. BPD Officer Sean Courter’s report stated that Jeter
refused “multiple commands to shut off the vehicle and show me his hands,” and “verbal
commands to open the door.” Trinidad’s report stated that he observed Jeter “grabbing
Officer Courter[’]s service weapon” and that Jeter “struck me in the face with a closed
fist.” BPD Officer Albert Sutterlin’s report mirrored Trinidad’s report that “Jeter struck
Officer Trinidad in the face.”

        Jeter testified that Courter and Sutterlin had their guns drawn. Dash-cam footage
from Courter’s and Sutterlin’s vehicle corroborated Jeter’s testimony. A camera on
Trinidad’s vehicle showed Jeter’s hands are up, and he never reaches for Courter’s gun.
The recordings further show Trinidad and Sutterlin join Courter and pin Jeter down while
Courter handcuffs him. Jeter never strikes any of the officers. Trinidad elbows Jeter
three times in the back of the head. Trinidad picks Jeter up, slams him onto the hood of
his patrol car, and punches him in the head.

       The Essex County Prosecutor’s Office (ECPO) ultimately charged Jeter with
eluding, resisting arrest, assault on an officer, trying to disarm an officer, and several
motor vehicle offenses. On June 12, 2012, Jeter filed a complaint with the ECPO. The
ECPO contacted BPD’s Internal Affairs Division (IAD). After reviewing the incident
                                             1
reports and the other available evidence, Lieutenant Michael Cofone of the IAD
exonerated the officers.

        On April 3, 2013, the ECPO notified Cofone of the existence of the dash-cam
recording from Trinidad’s patrol vehicle. The video showed that all three officers lied in
their reports. Following an investigation, the ECPO dropped all charges against Jeter.

        The State took Courter and Trinidad to trial together. On direct examination, the
State asked Jeter why he refused to get out of the car. Jeter referenced Amadou Diallo, a
black man who had been shot and killed by police in a well-publicized incident from
1999. Courter’s defense counsel objected but then withdrew the objection. Later during
Jeter’s direct examination, the State asked Jeter why he conducted media interviews.
Jeter explained that he “did the interviews, because . . . [he has] watched, you know, the
Rodney Kings and Sean Bells --” but Courter’s defense counsel interrupted with another
objection. The judge gave the jury a limiting instruction at Trinidad’s counsel’s request.
Jeter then continued his testimony, stating, “I grew up in a society where, you know, you
watch these . . . situations with police brutality -- you watch the Sean Bells, the Amadou
Diallos, the Rodney Kings, the Oscar [Grants] and the Fruitvale Stations, and . . . I can
testify that I’m a victim of that. I can say that this is my testimony.”

       The State also called Cofone to testify as a lay witness. Cofone narrated the
events of Trinidad’s dash-cam video for the jury, after which he testified that Trinidad’s
and Courter’s actions “appeared to have been criminal.”

       The judge denied Trinidad’s motion for judgment of acquittal. The jury then
found Trinidad guilty on five of the six counts charged and the lesser-included offense of
fourth-degree simple assault. The judge sentenced Trinidad on second-degree official
misconduct to the mandatory minimum five-year term of imprisonment with five years of
parole ineligibility and ran the four remaining convictions concurrently. The judge found
three mitigating factors and one aggravating factor, but rejected Trinidad’s request for a
downgraded sentence, finding that Trinidad could not demonstrate any serious injustice.
The judge also refused to waive the mandatory minimum term for his sentence.

        The Appellate Division substantially affirmed but remanded for resentencing due
to an issue not relevant to this appeal. The Court granted Trinidad’s petition for
certification. 237 N.J. 312 (2019).

HELD: The trial court erred by admitting both prejudicial testimony and, separately, lay
opinion testimony as to defendant’s guilt. Yet, the evidence against Trinidad was
overwhelming, and any error was therefore harmless. There was no error in the
sentencing of defendant or the denial of his motion for a judgment of acquittal.



                                             2
1. The Court reviews Cofone’s testimony that the officers’ actions “appeared to have
been criminal” for plain error because neither Trinidad’s nor Courter’s defense counsel
objected at trial. Police officers may not opine directly on a defendant’s guilt in a
criminal case. The Court agrees with the Appellate Division that the trial judge should
have instructed the jury to disregard that testimony. Those five words were not the sole
basis of Cofone’s testimony, however, and they did not constitute plain error. Cofone’s
statement aside, the jury had Trinidad’s written reports and could compare them to the
two dash-cam recordings that were played several times at trial. In light of Trinidad’s
demonstrably false reports, the Court does not find the erroneous admission of Cofone’s
statement led the jury to a result it otherwise might not have reached. (pp. 20-24)

2. The Court next considers Jeter’s testimony with respect to high-profile police brutality
cases and agrees with the trial judge that the testimony was relevant under N.J.R.E. 401.
Jeter’s refusal to leave his car was essential to the jurors’ evaluation not only of his
actions, but also the officers’. Nevertheless, N.J.R.E. 403 sets limits on this type of
testimony. Jeter’s multiple declarations that his fear stemmed from notorious episodes of
police brutality were highly prejudicial. Those controversial references could inflame the
passions of the jury, tainting their evaluation of Trinidad. It is hard to envision ever
satisfying Rule 403 at a criminal trial with references to high-profile police brutality
cases. The same analysis would apply were the roles reversed. If Trinidad were asked
why he drew his weapon while chasing a suspect, it would be improper under N.J.R.E.
403 for him to respond by discussing horrific incidents in which officers were harmed, or
relaying statistics about shootings of police officers on duty. The instruction the judge
gave the jury did not solve the problem. It permitted the jury to consider those references
insofar as they related to Jeter’s state of mind. The proper course would have been to
strike the references altogether and advise the jury accordingly. The judge’s failure to do
so was error. That error, however, was harmless considering the overwhelming evidence
of Trinidad’s guilt before the jury. (pp. 24-31)

3. Trinidad argues it was error not to downgrade his sentence. The Criminal Code
allows a sentencing judge to downgrade a first- or second-degree offense where “the
mitigating factors substantially outweigh the aggravating factors and where the interest of
justice demands.” N.J.S.A. 2C:44-1(f)(2) (emphasis added). Here, the judge did not
make a finding that the mitigating factors “substantially outweighed” the aggravating
factor. The Court does not reach Trinidad’s argument about the first prong of the
downgrading test, however, because he cannot satisfy the “interest of justice” prong.
There is no doubt Trinidad’s crimes are of a serious nature, and third-degree official
misconduct has a pecuniary element that would not have fit here. The record shows
Trinidad personally assaulted Jeter, lied in official reports to cover up his crimes, and
similarly instructed Sutterlin to falsify reports. A downgrade would have been
inappropriate. (pp. 31-36)



                                            3
4. Relatedly, a court may waive or reduce a mandatory minimum term for crimes
involving public employment “[i]f the court finds by clear and convincing evidence that
extraordinary circumstances exist such that imposition of a mandatory minimum term
would be a serious injustice which overrides the need to deter such conduct in others.”
N.J.S.A. 2C:43-6.5(c)(2) (emphasis added). The “serious injustice” threshold is higher
than the showing necessary to downgrade an offense. In weighing the aggravating and
mitigating factors, the trial judge held that the mitigating factors were not so
“extraordinary” as to merit waiver or reduction of the mandatory minimum prison term
and did not overcome the need to deter such conduct by police officers. The Court
agrees. Trinidad brutally assaulted a defenseless person who was not resisting arrest. He
then lied to cover up his crimes. He simply has not made the requisite showing for
waiver or reduction of his mandatory minimum sentence. (pp. 36-39)

5. Trinidad also appeals the trial judge’s denial of his motion for judgment of acquittal,
but the Court agrees with both the trial judge and Appellate Division that a reasonable
jury could find Trinidad guilty of each charge. The strength of the State’s case leads to
no other conclusion. (p. 39)

       The judgment of the Appellate Division is AFFIRMED.

        JUSTICE ALBIN, dissenting, expresses the view that trial errors were not
harmless beyond a reasonable doubt. Justice Albin explains that Jeter’s state of mind was
not at issue and therefore not relevant under N.J.R.E. 401 and that, even assuming that
Jeter’s references to sensational cases of police brutality against people of color had some
minimal probative value, it was substantially outweighed by the risk of undue prejudice
under N.J.R.E. 403. In Justice Albin’s view, permitting the jury to draw a connection to
past cases of police misconduct created an intolerable risk that the jury condemned
Trinidad on the basis of collective guilt. Justice Albin further explains that the Court has
repeatedly held that a police-officer witness may not venture an opinion on a defendant’s
guilt and that Cofone’s testimony had the clear capacity to undermine the jury’s exclusive
role as factfinder and deprive Trinidad of a fair trial. Justice Albin also cautions courts
about the overuse of the harmless-error doctrine.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a
dissent, in which JUSTICE LaVECCHIA joins.




                                             4
       SUPREME COURT OF NEW JERSEY
             A-65 September Term 2018
                       081881


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

                  Orlando Trinidad,

                Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division .

      Argued                       Decided
  November 4, 2019              March 18, 2020


David A. Gies, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; David A. Gies, of counsel and on the briefs,
and Richard Sparaco, Designated Counsel, on the
briefs).

Kayla E. Rowe, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Kayla E. Rowe, of counsel and on
the briefs).

Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(American Civil Liberties Union of New Jersey
Foundation, attorneys; Alexander Shalom and Jeanne
LoCicero, on the brief).


                           1
            Dillon J. McGuire argued the cause for amicus curiae
            Civil Rights Protection Project of the Latino
            Leadership Alliance of New Jersey (Pashman Stein
            Walder Hayden, attorneys; CJ Griffin, of counsel and
            on the brief).


           JUSTICE TIMPONE delivered the opinion of the Court.


      Defendant Orlando Trinidad, formerly an officer with the Bloomfield

Police Department (BPD), was tried for misconduct, making false statements,

falsifying records, and other offenses following an automobile stop gone awry.

In this appeal, the Court considers several evidentiary issues and rulings that

arose at trial. We find that the trial court erred by admitting both prejudicial

testimony and, separately, lay opinion testimony as to defendant’s guilt. Yet,

we find the evidence against defendant to be overwhelming and any error to be

harmless. We find no error in the sentencing of defendant or the denial of his

motion for a judgment of acquittal, and we affirm the judgment of the

Appellate Division.

                                        I.

      We cull these facts from the trial record below.




                                        2
                                       A.

      At trial, the arresting officers and the victim, Marcus Jeter, disputed

what occurred on the evening of June 7, 2012. We present both accounts,

beginning with the officers’ versions as recounted in their reports.

                             The Officers’ Reports

      BPD Officer Sean Courter’s written report stated:

            Responded to . . . West Passaic Ave. on a report of a
            Domestic. Upon arrival Officer Sutterlin and I rang the
            doorbell to the residence. While ringing the doorbell a
            black male, later identified as Mr. Marcus Jeter, stuck
            his head out the second floor window and stated,
            “Come and get me”. A female, later identified as Ms.
            Tanisha Killian, then opened the front [door]. While
            speaking with Ms. Killian, the girlfriend, she stated that
            her boyfriend, Mr. Jeter, just jumped out the back
            window. Officer Sutterlin and I heard an engine
            starting from the rear of the residence. A vehicle . . .
            came up the driveway at a high rate of speed. I stated
            to the driver, Mr. Jeter, to put the vehicle in park and
            give me his [i]dentification. Mr. Jeter ignored my order
            to put the vehicle in park and stated, “I did not do
            anything wrong”. I spoke to Mr. Jeter through the front
            passenger side window, which was rolled down. As
            Mr. Jeter was speaking, I smelled a strong odor of an
            alcoholic beverage em[a]nating from his breath and his
            eyes being bloodshot. In further observing the vehicle
            I observed the rear driver tire to be flat. I asked Mr.
            Jeter again to put the vehicle in park and give me his
            identification. Mr. Jeter refused and drove off at a high
            rate of speed, making a left onto West Passaic Ave. I
            ran to my vehicle and advised Central Communications
            and [Lieutenant Sean] Schwindt that I was pursuing this
                                        3
     vehicle. I activated my emergency lights and sirens and
     was able to view Mr. Jeter’s vehicle make a right onto
     Broad St. from West Passaic Ave. Upon reaching
     Broad St., I observed Mr. Jeter’s vehicle make a right
     into the [Garden State] Parkway South[’s] [s]ervice
     entrance. I was able to catch up to Mr. Jeter’s vehicle
     on the Parkway South. I pulled behind Mr. Jeter’s
     vehicle, who continued to drive on the Parkway South.
     At this time, I observed the driver-side rear tire to be
     sparking, due to that Mr. Jeter was driving on the rim.
     After approximately 1,000 feet, Mr. Jeter’s vehicle
     became disabled, due to that the driver-side rear rim
     was on its side. Mr. Jeter’s vehicle came to rest at mile
     marker 154.1 on the Parkway South. I exited my
     vehicle with my handgun drawn on Mr. Jeter, who was
     still in the vehicle with the engine running. I gave Mr.
     Jeter multiple commands to shut off the vehicle and
     show me his hands. Mr. Jeter refused and stated “[f]uck
     [y]ou, I did not do anything”. Officer Sutterlin then
     arrived on scene. At that time I proceeded to the driver
     side door and attempted to open it. The door was
     locked. I again gave Mr. Jeter verbal commands to
     open the door. Mr. Jeter refused and stated “[f]uck
     [y]ou” and then rolled up his driver side window. I
     advised Central Communications that Mr. Jeter was
     refusing to exit the vehicle. Officer Trinidad arrived on
     scene and blocked Mr. Jeter’s vehicle in from the
     front[] due to that Mr. Jeter refused to turn off his
     vehicle.

BPD Officer Orlando Trinidad’s report continued the officers’ account:

     I took Parkway North to the motor vehicle stop. When
     I reached their location[,] I carefully crossed the black
     top median yielding to traffic. When I saw that no
     traffic was coming[,] I drove across [with my] lights
     and sirens still activated and parked my vehicle . . .

                                4
bumper to bumper with [Jeter’s] vehicle so that he
would not attempt to flee or use his vehicle as [a]
weapon . . . . When I exited my vehicle[,] I observed
Officer[s] Courter and . . . Sutterlin giving multiple
commands for [Jeter] to . . . . “[e]xit the vehicle[!]” I
immediately began giving verbal commands to [Jeter]
to “[e]xit the vehicle . . . . [as he was] under arrest[!]”
[Jeter] refused multiple verbal commands from Officer
Courter and myself. At this time I verbally advised
[Jeter] that if he did not exit the vehicle we were going
to breach the window to effect the arrest. [Jeter]
ignored my commands again[,] stating to us[,] “Fuck
off[!] I didn’t do shit man[!]” Officer Courter then
attempted to open the driver side door but the door was
locked. Officer Courter then used his asp (expandable
baton) and successfully breached the window. Multiple
verbal commands were given to [Jeter] to unlock the
door and exit his vehicle, [but] he refused. Officer
Courter reached into the driver side window and opened
the door. Officer Courter ordered [Jeter] to take off his
seat belt and exit the vehicle. [Jeter] refused to comply.
Officer Courter reached over [Jeter] to take off his seat
belt, at which time I observed [Jeter] grabbing Officer
Courter[’]s service weapon which he had holstered on
his right hip. Officer Courter yelled . . . [,] “He’s
grabbing my gun[!] He’s grabbing my gun[!]” Officer
Courter gave [Jeter] multiple[] commands to let go of
his gun and stop resisting. At that moment I was in fear
for my partner[’]s life[] and my own. Officer Sutterlin
and I proceeded to grab Mr. Jeter’s hands off Officer
Courter’s gun. Officer Courter was able to remove
[Jeter’s] seatbelt . . . . [When] attempting to extradite
[Jeter] from the vehicle, [Jeter] struck me in the face
with a closed fist. After struggling with [Jeter,] we
finally managed to take him to the ground. On the
ground[, Jeter] continued flailing his arms and then
plac[ed] his hands underneath his body. I ordered him
                            5
            to . . . “stop resisting . . . [and g]ive me [his] hands[!]”
            And he refused. After struggling with Mr. Jeter we
            finally were able to grab his hands and place him under
            arrest.

            [(emphases added).]

      Courter’s and BPD Officer Albert Sutterlin’s reports of the struggle

mirrored Trinidad’s, though Courter added:

            I had to reach over Mr. Jeter[] to remove his seatbelt,
            but as I was reaching over[,] Mr. Jeter began grabbing
            onto my holster attempting to remove my handgun. I
            was scared from my life. I stated he is going for my
            gun.       Officer Trinidad and Officer Sutterlin
            immediately came to my aid and restrained Mr. Jeter’s
            hands from removing my handgun. Mr. Jeter continued
            to resist our efforts to arrest him. We stated multiple
            times to stop resisting. Mr. Jeter continued to flail his
            arms and body in an attempt not to be removed from the
            vehicle. . . .

            [(emphasis added).]

In his supplementary offense report, Courter stated, “While at Police

Headquarters, EMS . . . was contacted to clean out minor lacerations to my left

forearm and clean out minor abrasions on Mr. Jeter. Mr. Jeter refused further

medical attention.” (emphases added).

      For his part, Sutterlin added:

            At this time, Officer Courter stated that Mr. Jeter was
            attempting to take Officer Courter’s weapon. At this
            time, this officer and Officer Trinidad reached in to
                                         6
            assist Officer Courter and extricate[] Mr. Jeter during
            which time[] Mr. Jeter struck Officer Trinidad in the
            face. Mr. Jeter was ordered several times to stop
            resisting, but Mr. Jeter continued to fight with the
            officers. Mr. Jeter was brought to the ground and
            continued to resist by putting his hands underneath his
            body.

            [(emphasis added).]

                 Jeter’s Testimony and the Dash-Cam Footage

      According to Jeter, a different version of events unfolded that night. He

testified that he and his live-in girlfriend were engaged in a heated argument,

which led her sister to call the police. Courter and Sutterlin arrived around

midnight when Jeter had already removed himself from the situation and

gotten into his car. Jeter claimed the officers flagged him down as he drove

toward the end of his driveway and they briefly spoke without incident,

permitting Jeter to drive off.

      Jeter headed to the auto shop he managed in order to fix a tire with low

air pressure. On the Garden State Parkway, however, Courter and Sutterlin

pulled him over. At this point, dash-cam footage from their vehicle

corroborates the remainder of Jeter’s testimony. The footage reveals Courter a

few feet from the driver’s side window with his gun drawn telling Jeter to “get

the fuck out the car.” Sutterlin also has a gun drawn. Jeter refuses to comply

and indicates he will not move until the officers call his lawyer.
                                        7
      Officer Orlando Trinidad arrived on the scene to assist Courter and

Sutterlin. A camera on his vehicle also recorded the encounter. The footage

shows Trinidad drive over the median and crash into the front of Jeter’s

stationary car. Jeter’s hands are up from the moment Trinidad crashes into his

car and Jeter comes into view. Trinidad exits his vehicle and approaches the

passenger side of Jeter’s car, but then runs out of sight. At the same time,

Courter breaks the driver’s side window with a baton, enters the car, and grabs

Jeter. Jeter never reaches for Courter’s gun. Courter spontaneously yells at

Jeter to “stop trying to take my gun.” Courter then unfastens Jeter’s seatbelt

while Jeter’s hands remain raised.

      The recordings further show Courter remove Jeter from the car and bring

him to the ground. Trinidad and Sutterlin join Courter and pin Jeter down

while Courter handcuffs him. Jeter never strikes any of the officers.

Unprovoked, Trinidad yells, “Why are you trying to get my fucking gun?”

Jeter, now handcuffed and lying on his stomach, denies the charge. While he

remains on the ground, they search his pockets. As Courter had done before,

Trinidad tells Jeter to “get off my gun,” and then elbows Jeter three times in

the back of the head.

      Trinidad is clearly visible as he picks Jeter up and, with the other

officers, walks him to a patrol car. Jeter states twice that he “did nothing

                                        8
wrong.” Rather than place him inside the car, Trinidad slams him onto the

hood so hard that Jeter’s feet leave the ground. Trinidad then leans into Jeter’s

face and tells him to “shut the fuck up.” After removing Jeter from the hood

of the car, Trinidad punches him in the head.

                                       B.

      Following Jeter’s arrest, the Essex County Correctional Facility refused

to admit him because of the extent of his injuries. As a result, officers took

him to Clara Maass Medical Center where hospital records indicate he was

diagnosed with head trauma, contusions, a right wrist sprain, and an ear

laceration. Jeter’s ear would not stop bleeding, requiring liquid stitches.

Doctors also gave him a sleeve for his wrist. The Essex County Prosecutor’s

Office (ECPO) ultimately charged Jeter with eluding, resisting arrest, assault

on an officer, trying to disarm an officer, and several motor vehicle offenses,

including driving while intoxicated.

      On June 12, 2012, Jeter filed a complaint with the ECPO about the

arresting officers’ conduct. The ECPO contacted BPD’s Internal Affairs

Division (IAD). In an interview with Lieutenant Michael Cofone of the IAD,

Jeter explained his version of events. Cofone obtained Courter’s and

Sutterlin’s incident reports, the dash-cam video recording from Courter’s

patrol car, and radio and telephone recordings. However, another detective

                                        9
informed Cofone that the dash-cam video from Trinidad’s patrol car was

unavailable. Cofone also asked Trinidad, Courter, and Sutterlin to submit

supplemental administrative reports of the incident.

      After reviewing those reports and the other available evidence, Cofone

exonerated the officers. Cofone found that Jeter’s conduct precipitated the

event and that Jeter lacked credibility, was uncooperative, actively resisted the

officers’ attempt to arrest him, attempted to grab Courter’s weapon, and

punched Trinidad in the face.

      But then everything changed. On April 3, 2013, the ECPO notified

Cofone of the existence of the dash-cam video recording from Trinidad’s

patrol vehicle. The video showed a very different version of the incident than

what the officers had reported. Cofone concluded from his review of the video

that all three officers lied in their reports by falsely stating, among other

things: Jeter grabbed for Courter’s gun; Trinidad and Sutterlin came to

Courter’s aid and restrained Jeter’s hands from removing the gun; Jeter flailed

his arms and body “when in reality Jeter ha[d] his hands up in a gesture of

surrender the entire time”; and Jeter struck Trinidad in the face with a closed

fist as Courter removed him from the car. Cofone also indicated that, once

Jeter was handcuffed, Trinidad slammed him into the hood of his patrol

vehicle and “punche[d] Jeter so hard in the head that his punch not only hit[]

                                        10
Jeter but careen[ed] off Jeter and hit[] Courter in the face as well.” Following

an investigation, the ECPO dropped all charges against Jeter.

                                        C.

      The State took Courter and Trinidad to trial together, specifically

charging Trinidad with second-degree conspiracy to commit official

misconduct, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2; second-degree official

misconduct, N.J.S.A. 2C:30-2; third-degree tampering with public records,

N.J.S.A. 2C:28-7(a)(1) and (2); fourth-degree falsifying or tampering with

records, N.J.S.A. 2C:21-4(a); fourth-degree false swearing, N.J.S.A. 2C:28-2;

and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

      Sutterlin pled guilty to fourth-degree falsifying or tampering with

records and agreed to testify against Courter and Trinidad. At trial, he stated

that Trinidad and Courter waited for him at police headquarters after the

incident. He asked them what happened in order to provide a similar incident

report. They “reminded [him] of what happened” and told him what to write.

Specifically, they told Sutterlin to state that Jeter grabbed for Courter’s gun

and that Jeter struck Trinidad, but Sutterlin testified he saw neither event.

Sutterlin further admitted that he spoke to Trinidad and Courter “several

times” to get the “sequence of events correct” before submitting the

administrative report to Cofone.

                                        11
      At trial, during opening statements, Trinidad’s counsel remarked that

Jeter had engaged with the media before trial and was a “big time celebrity

now basking in the afterglow.” Trinidad’s counsel further underscored that

Jeter had filed a “civil suit for big dollars,” that the incident with the officers

was the “break of his life,” and that Jeter was “living the American dream.”

      On direct examination, the State asked Jeter why he refused to get out of

the car. Jeter answered that he kept his hands raised because Courter had his

gun drawn. Jeter explained that he did not attempt to pick up the cell phone he

dropped because he did not want Courter to mistake it for a weapon and shoot

him. Jeter also referenced Amadou Diallo, a black man who had been shot and

killed by police in a well-publicized incident from 1999. Courter’s defense

counsel objected and argued at sidebar that the reference was irrelevant and an

attempt to inflame the jury. The trial judge replied that the reference served to

clarify Jeter’s state of mind and was not intended to inflame the jury, so

Courter’s defense counsel withdrew the objection.

      Later during Jeter’s direct examination, the State asked Jeter why he

conducted media interviews. Courter’s counsel objected on relevance grounds,

but Trinidad’s counsel confirmed that he mentioned the media appearances in

his opening statement, so the judge permitted the question. Before Jeter could

continue, the judge asked if anyone desired “any instruction . . . to give the

                                         12
jury about this testimony,” but neither defense counsel requested one. Jeter

began again, explaining that he “did the interviews, because . . . [he has]

watched, you know, the Rodney Kings and Sean Bells --” but Courter’s

defense counsel interrupted with another objection.

      This time, Trinidad’s counsel joined Courter’s counsel’s objection.

They argued Jeter “shouldn’t be mentioning other cases” and his testimony

was “inflammatory.” As before, the judge explained that Jeter’s references

reflected his state of mind, but this time the judge asked whether the parties

wanted a limit on “how far into these areas [Jeter] can go.” Trinidad’s counsel

responded, “I don’t know how you can restrict him, if that’s his state of mind.”

The judge agreed and, alternatively, Trinidad’s counsel asked for a limiting

instruction to explain that the jury has “heard testimony referencing other

cases, that they should be aware that every case is different, and they should

disregard any parallels to other cases, or consider it only for his state of mind.”

The judge complied, instructing the jury that “any reference the witness is

making to other cases, you can only use that testimony as -- insofar as that you

find it is relevant to this witness’ state of mind, why he did what it is that he

said that he did or didn’t do.” Jeter then continued his testimony:

             I grew up in a society where, you know, you watch
             these . . . situations with police brutality -- you watch
             the Sean Bells, the Amadou Diallos, the Rodney Kings,
             the Oscar [Grants] and the Fruitvale Stations, and I’ve
                                         13
-- I’ve -- I can testify that I’m a victim of that. I can
say that this is my testimony.

So when -- when the first initial interview was taken
with Channel 7 -- and I didn’t -- actually didn’t want to
do it at all. [Investigative reporter] Sarah Wallace
actually came to my house, and she said, “[y]ou know,
you have a story that the world needs to hear.”

And I didn’t really want to do it at all. I didn’t get paid
to do it. It’s not -- it wasn’t for fame. It was just more
of me just saying this is my testimony, and the world
needs to understand that people are falsely accused
every day, and they deal with, you know, the things like
I dealt with, of possibly being shot, and possibly being
dead, you know.

My worst case scenario was me getting shot that night,
you know, and with Officer Courter saying, “[s]top
trying to take my gun,” you know, it -- who’s to say that
the other two officers wouldn’t have really thought that
I was trying to take his gun and really would have shot
me.

And then, you know, the way that everything played out
as far as me getting charged, and me going to court for
a year, and me dealing with the stress and the
aggravation, and just being able to overcome it, I
needed to tell my story, and that’s what I did. I just
wanted to tell my story.

It wasn’t about money, it wasn’t -- I didn’t get paid
from any of the interviews I did. I didn’t look for fame,
I didn’t look for followers on Instagram. It was just
more about like if I was in church, and this was my
testimony, and I wanted everybody to understand that


                            14
            I’ve been through some things that I shouldn’t have
            gone through.

      During the final jury charge, the judge reminded the jury that, if he

“gave . . . a limiting instruction as to how to use certain evidence, that

evidence must be considered by you for that purpose only. You cannot use it

for any other purpose.”

      The State also called Cofone to testify as a lay witness. Cofone narrated

the events of Trinidad’s dash-cam video for the jury, after which the following

exchange took place:

            Q. And had you requested, from Detective Zachares,
            the second video; in other words, the video recording
            from [Trinidad’s patrol vehicle].

            A. When I first conducted my investigation, I
            requested from him all available evidence. That would
            have encompassed anything there may have been.
            Some things, he was aware of, as the evidence video
            tech.

            Q. After the investigation, did you change your
            findings or have any other findings as to the conduct of
            these officers at the time?

            A. Not immediately. I did a review of that second
            piece of evidence [the dash-cam video from Trinidad’s
            patrol car] with the assistance of Sergeant Sierchio and
            Chief Gould.

            Q. Did you then make any findings?


                                        15
            A. Yes, ma’am.

            Q. What were those?

            A. I changed the disposition from exonerated to
            sustained.

                  ....

            Q. Sir, after watching this second video . . . did you --
            did you conduct any further investigation?

            A. Yes, ma’am.

            Q. What did you do?

            A. Uh, well, I informed the chief -- we saw the video -
            - that it appeared that, based on the new evidence, the
            actions of the officers, umm, appeared to have been
            criminal, and we forwarded the case to the Essex
            County Prosecutor’s Office for a criminal review.

            [(emphasis added).]

Neither defense counsel objected to Cofone’s testimony.

                                       D.

      On October 28, 2015, the judge denied Trinidad’s motion for judgment

of acquittal. The jury then found Trinidad guilty on five of the six counts. On

the remaining charge, the jury convicted Trinidad of the lesser-included

fourth-degree simple assault, N.J.S.A. 2C:12-1(a), rather than third-degree

aggravated assault. The judge merged his conspiracy and second-degree

                                       16
official misconduct convictions and sentenced Trinidad on the latter to the

mandatory minimum five-year term of imprisonment with five years of parole

ineligibility. The judge ran the four remaining convictions concurrently.

      In sentencing Trinidad, the judge applied three mitigating factors, see

N.J.S.A. 2C:44-1(b)(7) (“The defendant has no history of prior delinquency or

criminal activity or has led a law-abiding life for a substantial period of time

before the commission of the present offense[.]”); N.J.S.A. 2C:44-1(b)(8)

(“The defendant’s conduct was the result of circumstances unlikely to

recur[.]”); N.J.S.A. 2C:44-1(b)(9) (“The character and attitude of the defendant

indicate that he is unlikely to commit another offense[.]”), and one aggravating

factor, N.J.S.A. 2C:44-1(a)(9) (“The need for deterring the defendant and

others from violating the law[.]”). The judge, however, rejected Trinidad’s

request for a downgraded sentence, finding there were no compelling

circumstances stemming from Trinidad’s offenses meriting the downgrade.

The judge further noted that third-degree official misconduct was

inappropriate in Trinidad’s case because Trinidad could not demonstrate any

serious injustice in having him serve a five-year mandatory minimum term.

The judge also refused to waive the mandatory minimum term for his sentence.




                                        17
                                        E.

      Trinidad appealed his convictions and sentence. The Appellate Division

substantially affirmed. The Appellate Division added that Trinidad’s

concurrently imposed sentences should have merged with his official

misconduct conviction, and remanded for resentencing. The merger had no

impact on Trinidad’s five-year sentence.

      The Appellate Division rejected Trinidad’s contention that the judge

erred by permitting Jeter’s testimony relating to high-profile police brutality

cases. In its view, Jeter’s testimony was neither irrelevant nor unduly

prejudicial. The other high-profile cases were only mentioned “to explain

Jeter’s own actions at the time of the incident, not to analogize the present case

to those prior cases.” Further, any prejudicial effect had been mitigated by the

judge’s limiting instructions to the jury and defense counsels’ cross -

examination highlighting the differences between those high-profile cases and

Jeter’s encounter with the officers.

      Trinidad further argued Cofone’s statement that the officers’ actions

“appeared criminal” was inadmissible lay opinion improperly addressing the

ultimate question of guilt or innocence under N.J.R.E. 701. The Appellate

Division disagreed, reasoning that Cofone’s testimony did not relate “to the

ultimate issue of whether Trinidad committed the offenses” but instead was

                                       18
“rationally based on Cofone’s perception and served to inform the jury how

IAD conducted its internal investigation.” The court added that, even if

Cofone’s testimony was inadmissible, its admission did not constitute plain

error because of the overwhelming evidence the State presented against

Trinidad.

      The Appellate Division also thoroughly reviewed Trinidad’s sentence.

The court found that the judge properly exercised his discretion in finding

aggravating and mitigating factors. The court further agreed with the judge’s

explanation for why Trinidad was not entitled to a downgraded sentence or

waiver of the mandatory minimum term. Finally, the Appellate Division

affirmed the judge’s denial of Trinidad’s motion for a judgment of acquittal.

The court reviewed Trinidad’s convictions and held that, based on the

evidence presented at trial, a reasonable jury could have found him guilty

beyond a reasonable doubt.

      On March 26, 2019, this Court granted Trinidad’s petition for

certification. 237 N.J. 312 (2019). We granted leave to the American Civil

Liberties Union of New Jersey (ACLU) and the Civil Rights Protection Project

of the Latino Leadership Alliance of New Jersey (CRPP) to participate as

amici curiae. We consider each argument raised by Trinidad in turn.




                                       19
                                        II.

                                        A.

      Trinidad argues that Cofone’s testimony unfairly influenced the jury and

prejudiced his trial. Trinidad reasserts that Cofone’s testimony exceeded the

bounds of N.J.R.E. 701, resulting in reversible error. The ACLU shares

Trinidad’s position, noting that neither expert nor lay witnesses may opine on

a criminal defendant’s guilt.

      For its part, the State argues that Cofone’s testimony served to explain

the impetus for his follow-up investigation. The State posits that Cofone’s

testimony that the officers’ actions “appeared to have been criminal” was

necessary to explain a material fact, that is, the later-developed evidence of

Trinidad’s dash-cam recording. The State adds that, in any event, Cofone’s

testimony does not rise to the level of plain error requiring reversal.

                                        B.

                                        1.

      Neither Trinidad’s nor Courter’s defense counsel objected at trial to

Cofone’s testimony that the officers’ actions “appeared to have been criminal.”

As such, we review Cofone’s testimony for plain error. We consider whether

Cofone’s testimony was “clearly capable of producing an unjust result.” R.

2:10-2. This is a “high bar,” State v. Santamaria, 236 N.J. 390, 404 (2019),

                                        20
requiring reversal only where the possibility of an injustice is “real” and

“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. Macon, 57 N.J. 325, 336

(1971).

      N.J.R.E. 701 provides:

            If a witness is not testifying as an expert, the witness’
            testimony in the form of opinions or inferences may be
            admitted if it (a) is rationally based on the perception
            of the witness and (b) will assist in understanding the
            witness’ testimony or in determining a fact in issue.

As with other witnesses, we “have permitted police officers to testify as lay

witnesses, based on their personal observations and their long experience in

areas where expert testimony might otherwise be deemed necessary.” State v.

LaBrutto, 114 N.J. 187, 198 (1989).

      However, police officers may not opine directly on a defendant’s guilt in

a criminal case. See, e.g., State v. Frisby, 174 N.J. 583, 593-94 (2002)

(“Based on the hearsay evidence, the police essentially gave the jury their

opinion regarding the innocence of Patterson and inferentially the guilt of [the

defendant]. That is not allowed.”); State v. Landeros, 20 N.J. 69, 74-75 (1955)

(holding that police captain’s testimony that defendant was “as guilty as Mrs.

Murphy’s pet pig” was so prejudicial that it warranted reversal of the

conviction); see also State v. McLean, 205 N.J. 438, 453 (2011) (“[E]xperts

                                        21
may not, in the guise of offering opinions, usurp the jury’s function by, for

example, opining about defendant’s guilt or innocence or in a manner that

otherwise invades the province of the jury to decide the ultimate question.”

(citation omitted)).

      In Frisby, the police investigated parents for the death of their infant.

174 N.J. at 588. The mother and father gave conflicting accounts of who was

responsible for the infant’s care on the night in question. Id. at 588-89. After

police charged the mother, they testified about their decision to arrest her and

not the father. Id. at 591. Among other things, officers relayed hearsay from

non-testifying witnesses that verified the father’s alibi. Ibid. They also

explained to the jury that they felt the father was “more credible than [the

mother] at that point.” Id. at 592.

      We found the admission of that testimony constituted plain error beyond

the simple fact that it offered inadmissible hearsay. Ibid. As the “case was a

pitched credibility battle” between the mother and father, we explained that,

“by ‘necessary inference,’” the police testimony regarding the father’s

credibility unfairly and “‘irresistibly’ implicated [the mother].” Id. 593-96

(quoting State v. Roach, 146 N.J. 208, 224-25 (1996)). We observed that

juries “may be inclined to accord special respect to” police testimony, id. at

595 (quoting Neno v. Clinton, 167 N.J. 573, 586 (2001)), and accordingly held

                                        22
that “[a]ny improper influence on the jury that could have tipped the

credibility scale was necessarily harmful and warrants reversal,” id. at 596.

                                        2.

      Applying those principles, we agree with the Appellate Division that the

trial judge should have instructed the jury to disregard Cofone’s testimony that

the officers’ actions “appeared to have been criminal.”

      Those five words were not the sole basis of his testimony, however, and

we do not find that they constitute plain error. In addition to simple assault,

Trinidad was convicted of a series of charges relating to his false statements:

tampering with and falsifying public records, false swearing, and official

misconduct. Cofone’s statement aside, the jury had Trinidad’s written reports

and could compare them to the two dash-cam recordings that were played

several times at trial.

      Those videos reveal Trinidad ramming Jeter’s stationary car. The jury

saw Jeter’s hands raised in surrender when he, instead, was supposedly

reaching for Courter’s gun and punching Trinidad in the face. Trinidad also

elbowed Jeter three times in the head while he was handcuffed on the ground,

slammed him into a patrol vehicle, and punched him in the face. Jeter’s

testimony further corroborated the substance of the videos. Finally, Sutterlin

testified that he never saw Jeter reach for Courter’s weapon or assault

                                       23
Trinidad, and illuminated exactly how the officers lied in their reports to

coordinate their stories.

      This case is unlike Frisby, where police testimony about the father’s

credibility not only implicated the mother, but also could have tipped the

scales in the State’s favor due to the scant evidence presented against her.

Rather, in light of Trinidad’s demonstrably false reports, we cannot say the

erroneous admission of Cofone’s statement “led the jury to a result it

otherwise might not have reached.” Macon, 57 N.J. at 336; see, e.g., State v.

Hightower, 120 N.J. 378, 410 (1990) (holding officer’s testimony that

defendant “was the person responsible for the murder” was harmless error

because of “the strength of the State’s case, the length of the trial, and the

number of witnesses called”).

                                        III.

                                        A.

      Trinidad next argues the trial judge should have barred Jeter’s testimony

with respect to high-profile police brutality cases under N.J.R.E. 403 because

it was highly prejudicial and had the tendency to inflame the passions of the

jury. In Trinidad’s view, Jeter’s comparison of himself to Amadou Diallo,

Rodney King, Sean Bell, and Oscar Grant equated Trinidad with police

officers predisposed to misconduct.

                                        24
      The State contends that the judge properly admitted Jeter’s testimony,

which tended to rebut accusations that he was motivated by a desire for fame

and fortune. The State contends the references to high-profile police brutality

cases explained Jeter’s state of mind and informed the jury of Jeter’s actions

during his arrest. The State further argues the jury was not prejudiced by

Jeter’s testimony because it was likely already aware of those high-profile

cases and could distinguish between them and this case based on the cross-

examination of Jeter.

      The ACLU and CRPP agree with the State. Like the State, they argue

Jeter’s comments were relevant to explain his state of mind and actions to the

jury. Amici add that there are racial disparities in policing. Therefore, Jeter ’s

references to infamous police brutality cases were necessary to contextualize

his fear as a person of color and explain why he refused to exit his car.

                                        B.

      We typically review evidentiary rulings under a deferential standard and

will “uphold [the trial court’s] determinations absent a showing of an abuse of

discretion.” State v. Scott, 229 N.J. 469, 479 (2017) (quoting State v. Perry,

225 N.J. 222, 233 (2016)). Yet, where the trial court fails to apply the proper

legal standard in evaluating the admissibility of evidence, we review the

evidentiary ruling de novo. See, e.g., State v. Garrison, 228 N.J. 182, 194

                                        25
(2017) (applying de novo review when the trial court failed to analyze other -

crime evidence under N.J.R.E. 404(b)). Here, the judge failed to analyze

Jeter’s testimony for prejudice under N.J.R.E. 403, instead finding it relevant

under N.J.R.E. 401 and allowing Jeter to continue. Our review of the

prejudicial effect of his testimony is therefore de novo.

                                        C.

      Evidence is relevant under N.J.R.E. 401 if it has “a tendency in reason to

prove or disprove any fact of consequence to the determination of the action.”

A court may admit evidence it finds to be relevant, “unless exclusion is

warranted under a specific evidence rule.” State v. Burr, 195 N.J. 119, 127

(2008). “One such rule excluding relevant evidence is N.J.R.E. 403.” State v.

Cole, 229 N.J. 430, 448 (2017). N.J.R.E. 403 provides for the exclusion of

evidence that is otherwise admissible “if its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues, or

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

of cumulative evidence.”

      Here, Trinidad focuses on the “undue prejudice” prong of Rule 403. In

determining whether the admission of certain evidence would be unduly

prejudicial, a court considers whether the evidence’s probative value “is so

significantly outweighed by [its] inherently inflammatory potential as to have a

                                       26
probable capacity to divert the minds of the jurors from a reasonable and fair

evaluation of the basic issue of guilt or innocence.” State v. Thompson, 59

N.J. 396, 421 (1971). For exclusion, the evidence must be more than

prejudicial: “[d]amaging evidence usually is very prejudicial but the question

here is whether the risk of undue prejudice was too high.” Cole, 229 N.J. at

448 (alteration in original) (quoting State v. Morton, 155 N.J. 383, 453-54

(1998)).

                                        D.

      Initially, we agree with the trial judge that Jeter’s testimony was

relevant. His refusal to leave his car was essential to the jurors’ evaluation not

only of his actions, but also the officers’. From the officers’ perspective,

Jeter’s noncompliant behavior escalated the conflict. Conversely, Jeter

testified he “was just afraid” because Courter and Sutterlin had their guns

drawn. Whether Jeter’s actions escalated the conflict was germane to the

officers’ fear (or lack thereof), resulting conduct, and charges. His testimony

served to contextualize his fear for the jury. Accordingly, Jeter’s story “had a

tendency in reason to prove or disprove any fact of consequence to the

determination of the action.” N.J.R.E. 401.

      Nevertheless, N.J.R.E. 403 sets limits on this type of testimony. Jeter’s

multiple declarations that his fear stemmed from notorious episodes of police

                                        27
brutality were highly prejudicial. Those controversial references could inflame

the passions of the jury, tainting their evaluation of Trinidad. Indeed, after

listing incidents involving Sean Bell, Rodney King, and Oscar Grant, Jeter told

the jury, “I can testify that I’m a victim of that.” (emphasis added). We find

that the comparison Jeter drew between himself and victims of notorious

incidents of police brutality could have led the jury, in turn, to liken Trinidad

to the officers in those cases. The risk of undue prejudice was simply “too

high.” Cole, 229 N.J. at 448. It is hard to envision ever satisfying Rule 403 at

a criminal trial with references to high-profile police brutality cases.

      The same analysis would apply were the roles reversed. If Trinidad

were asked why he drew his weapon while chasing a suspect, he could

appropriately explain that he acted out of concern for his safety under the

circumstances. Both the question and answer are relevant. Yet, it would be

improper under N.J.R.E. 403 for him to respond by discussing horrific

incidents in which officers were harmed, or relaying statistics about shootings

of police officers on duty. There is a risk that the testimony could unduly

prejudice the jury against the suspect in that case.

      Here, after Jeter first mentioned Amadou Diallo, Courter’s counsel

objected and argued the reference would inflame the jury. The prosecutor did

not disagree and explained, “[t]hat’s not where I was going. I was just asking

                                        28
him why he didn’t get out of the car, why he was throwing up his hands.” At

that point, the judge should have conducted an N.J.R.E. 403 analysis, stricken

the reference from the record, instructed the jury not to consider it, and

advised Jeter not to mention further any high-profile police brutality cases.

Instead, the judge focused on N.J.R.E. 401, countered that the reference was

relevant by reflecting Jeter’s state of mind, and counsel withdrew the

objection.

      Jeter again mentioned additional episodes of police brutality in the

afternoon session. The instruction the judge gave the jury did not solve the

problem. It permitted the jury to consider those references insofar as they

related to Jeter’s state of mind. This again misses the mark. Limiting Jeter’s

testimony to that which makes it relevant does not cure its intrinsic prejudice.

The proper course would have been to strike the references altogether and

advise the jury accordingly. The judge’s failure to do so was error.

                                        E.

      We next consider whether that error was harmless. We again determine

whether the error was “of such a nature as to have been clearly capable of

producing an unjust result.” R. 2:10-2. More specifically, we consider

whether the “error [was] ‘sufficient to raise a reasonable doubt as to whether

[it] led the jury to a result it otherwise might not have reached.’” State v.

                                        29
Prall, 231 N.J. 567, 581 (2018) (alterations in original) (quoting State v.

Daniels, 182 N.J. 80, 95 (2004)). Therefore, “[t]he error must be evaluated ‘in

light of the overall strength of the State’s case.’” State v. Sanchez-Medina,

231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)).

      We note that Courter’s counsel withdrew his objection -- which

Trinidad’s counsel never joined -- to Jeter’s initial reference to Amadou

Diallo. After Jeter later listed additional instances of police brutality, both

defense counsel objected, but neither accepted the judge’s offer to discuss and

impose limits on Jeter’s testimony. Rather, Trinidad’s counsel tendered a

potential limiting instruction, the very substance of which the judge gave to the

jury. The judge later reminded the jury to consider evidence only in

accordance with his limiting instructions throughout trial.

      We cannot find that the error led to an unjust result considering the

overwhelming evidence of Trinidad’s guilt before the jury. The dash-cam

videos and Jeter’s and Sutterlin’s testimony all directly controverted

Trinidad’s written reports, powerfully incriminating him. Even considered in

conjunction with Cofone’s improper remark, we are comfortable Jeter’s

prejudicial references did not lead to an unjust result. See, e.g., State v.

Marrero, 148 N.J. 469, 496-97 (1997) (finding insufficient instruction as to the

use of other-crimes evidence harmless because “the evidence of guilt,

                                        30
independent of the other-crime evidence, was nearly overwhelming,” such that

the inadequate instruction “did not tip the scales”).

         Although Jeter undoubtedly should not have referred to notorious cases

of police brutality, we find the admission of his testimony to be a particularly

powerful example of harmless error in light of the other evidence adduced at

trial.

                                         IV.

                                          A.

         Trinidad restates two challenges to his sentence. He first argues that the

trial judge erred by refusing to sentence him one degree lower to third-degree

official misconduct because the mitigating factors substantially outweighed the

aggravating factor. He also claims the interest of justice demands a

downgrade because he acted out of provocation by Jeter and the resulting

“immense stress” to fabricate reports. Second, Trinidad claims extraordinary

circumstances warrant waiver of the mandatory minimum term of

imprisonment or period of parole ineligibility for second-degree official

misconduct based on the mitigating factors and the numerous letters submitted

on his behalf demonstrating his honesty, character, loyalty, and generosity. He

further asserts the need for deterrence is low in this case because he already

lost his job, car, and apartment, and accumulated substantial credit card debt.

                                          31
      For its part, the State contends the judge thoroughly analyzed every

aggravating and mitigating factor. The State notes that, while applying more

mitigating than aggravating factors, the judge did not find the mitigating

factors substantially outweighed the aggravating factor. The State also arg ues

there were no compelling circumstances warranting a downgrade because

Trinidad failed to provide evidence of a less culpable mental state, diminished

capacity, or other exceptional circumstance. As to Trinidad’s second

contention, the State responds that he will not uniquely suffer from

imprisonment such that this Court should waive his mandatory minimum term

of imprisonment or period of parole ineligibility.

                                       B.

      The judge sentenced Trinidad for second-degree official misconduct to a

five-year term of imprisonment with five years of parole ineligibility. We

review Trinidad’s sentence “in accordance with a deferential standard.” State

v. Fuentes, 217 N.J. 57, 70 (2014). We will “not substitute [our] judgment for

that of the sentencing court.” Ibid. However, “the deferential standard of

review applies only if the trial judge follows the Code and the basic precepts

that channel sentencing discretion.” State v. Case, 220 N.J. 49, 65 (2014).




                                       32
                                       C.

      The Criminal Code allows a sentencing judge to downgrade a first- or

second-degree offense where “the mitigating factors substantially outweigh the

aggravating factors and where the interest of justice demands.” N.J.S.A.

2C:44-1(f)(2) (emphasis added); accord State v. Megargel, 143 N.J. 484, 495

(1996) (“The sentencing judge must be (1) clearly convinced that the

mitigating factors substantially outweigh the aggravating factors and (2) the

interest of justice must demand the downgrade.”). Accordingly, downgrading,

while not required, is appropriate where both prongs of the statutory test are

satisfied.

      While the Code does not define the “interest of justice,” we have noted it

is a high bar, requiring “compelling” reasons for a downgrade. Megargel, 143

N.J. at 500-02. In Megargel, we delineated several factors relevant to that

determination. See ibid. Generally, the reasons that compel a downgrade must

be in addition to, and separate from, the mitigating factors. Id. at 502. As the

focus of the inquiry is on the offense rather than the offender, “the most single

important factor” is the severity of the crime. Id. at 500. Determining a

crime’s severity involves consideration of the “factual circumstances,”

including whether the defendant’s crime was “similar to a lower degree

offense, thus suggesting that a downgraded sentence may be appropriate.”

                                       33
Ibid. The defendant’s role in the crime is also relevant. Id. at 501 (“Was the

defendant the mastermind, a loyal follower, an accomplice whose shared intent

is problematic, or an individual who is mentally incapable of forming the

necessary criminal intent?”). We further consider the sentence from the

perspective of deterrence. Ibid. And, finally, we hesitate to downgrade where

the Legislature has provided an enhanced penalty for a particular offense. Id.

at 502.

      At the outset, we underscore that the judge gave Trinidad the benefit of a

mandatory minimum sentence and ran the remaining counts concurrently. The

judge simply refused to take the additional step of downgrading Trinidad’s

sentence. Specifically, he found the three mitigating factors predominated

over the lone aggravating factor. The judge did not make a finding that the

mitigating factors “substantially outweighed” the aggravating factor. Trinidad

argues he can satisfy the first prong of the downgrading test, citing the twenty -

eight letters of support submitted on his behalf and his lengthy public service

with the Marines and the BPD. Yet, we need not reach this argument because

we hold that he nevertheless cannot satisfy the “interest of justice” prong.

      There is no doubt Trinidad’s crimes are of a serious nature. By

assaulting Jeter, Trinidad caused him to fear for his life. As the judge noted in

his determination, Trinidad “smashed the front of Jeter’s car, punched Jeter

                                       34
twice when he was outside the car on the ground, and then hit him again when

he was up against the car, resulting in injuries to Jeter’s arms, wrist, face and

ear.” Moreover, Jeter may have faced a lengthy prison sentence had

Trinidad’s dash-cam footage never surfaced. The most important factor in the

interest of justice calculus, then, weighs against downgrading Trinidad’s

sentence.

      The judge also found that third-degree official misconduct was

inapplicable here. Third-degree official misconduct occurs where “the benefit

obtained or sought to be obtained, or of which another is deprived or sought to

be deprived, is of a value of $200.00 or less.” N.J.S.A. 2C:30-2. As the judge

aptly noted, Trinidad’s crime was nonpecuniary. Instead, Jeter was physically

injured and indicted for certain crimes he did not commit. We agree with the

judge that third-degree official misconduct is therefore not fitting of Trinidad’s

conduct, counseling against a downgrade.

      We emphasize that Trinidad played a central role in the incident. The

record shows he personally assaulted Jeter, lied in official reports to cover up

his crimes, and similarly instructed Sutterlin to falsify reports. By finding him

guilty on all counts, the jury implicitly rejected Trinidad’s contention that Jeter

provoked him. Accordingly, there was no “immense stress” necessitating the




                                        35
commission of these crimes. A downgrade would have been inappropriate

here.

        Lastly, while we recognize Trinidad’s finances and reputation have

likely suffered, the Legislature’s imposition of a mandatory custodial sentence

for second-degree official misconduct reflects its belief that imprisonment is

necessary as a matter of general deterrence. It also underscores the

Legislature’s view that this is a serious crime. Based on the foregoing, we find

no compelling circumstances to override that legislative determination. We

agree with the judge’s refusal to downgrade Trinidad’s sentence and discern no

abuse of discretion.

                                        D.

        Relatedly, a court may waive or reduce a mandatory minimum term for

crimes involving public employment “[i]f the court finds by clear and

convincing evidence that extraordinary circumstances exist such that

imposition of a mandatory minimum term would be a serious injustice which

overrides the need to deter such conduct in others.” N.J.S.A. 2C:43-6.5(c)(2)

(emphasis added). The “serious injustice” threshold is higher than the showing

necessary to downgrade an offense. Megargel, 143 N.J. at 501.

        The inquiry focuses on whether the mitigating factors are

“extraordinary,” such that “they so greatly exceed any aggravating factors that

                                        36
imprisonment would constitute a serious injustice overriding the need for

deterrence.” State v. Evers, 175 N.J. 355, 393-94 (2003). We also consider

“the gravity of the offense with respect to the peculiar facts of a case to

determine how paramount deterrence will be in the equation.” Id. at 395.

There is a presumption of valuable deterrence in a custodial term for first - and

second-degree offenders. Ibid.

      We have found the serious injustice standard satisfied where a psychotic

woman with a severe intellectual disability accidentally killed her son by

dropping him twice on a coffee table. State v. Jarbath, 114 N.J. 394, 398

(1989). We reasoned that she could not comprehend the “wrongfulness” of her

conduct, thereby eliminating any specific deterrence gained from her

imprisonment. Id. at 406. Her case was also unlikely to deter others from

neglecting parental or childcare responsibilities based on her unique level of

culpability and mental disabilities. Id. at 405-06. Furthermore, we highlighted

that, due to her limitations, she could not “endure life in prison without

unusual suffering, that is, hardship and privation greatly exceeding that which

would be accepted and endured by ordinary inmates as the inevitable

consequences of punishment.” Id. at 409; see also State v. E.R., 273 N.J.

Super. 262, 273-75 (App. Div. 1994) (affirming resentencing of defendant to




                                        37
no custodial term where he had AIDS and his death was imminent within six

months).

      Here, Trinidad’s proffered evidence that he was a model citizen who

dedicated substantial portions of his adult life to public service and generously

provided financial support to family members during times of hardship led the

judge to find mitigating factors seven and nine. See N.J.S.A. 2C:44-1(b)(7)

and (9). In addition, the judge found mitigating factor eight because the

offense was out of character and, having already lost his job, Trinidad was

unlikely to reoffend under like circumstances. See N.J.S.A. 2C:44-1(b)(8).

The judge, however, applied aggravating factor nine after finding there was

need to deter other police officers from engaging in similar conduct. See

N.J.S.A. 2C:44-1(a)(9). In weighing those factors, the judge held that the

mitigating factors were not so “extraordinary” as to merit waiver or reduction

of the mandatory minimum prison term and did not overcome the need to deter

such conduct by police officers.

      We agree. The fact remains that Trinidad brutally assaulted a

defenseless person who was not resisting arrest. He then lied to cover up his

crimes so he could keep his job and knowingly caused the State to bring

unsupported, serious charges against Jeter. His predicament is self-imposed

and certainly does not outweigh the general deterrence gained by his

                                       38
imprisonment. He simply has not made the requisite showing for waiver or

reduction of his mandatory minimum sentence. Accordingly, we find the

judge did not abuse his discretion in sentencing Trinidad.

                                        V.

      Trinidad also appeals the trial judge’s denial of his motion for judgment

of acquittal. Applying the same standard as the judge, we review for whether

the State’s evidence was sufficient to warrant a conviction. R. 3:18-1.

However, giving the State the benefit of “all of the favorable inferences” that

we could draw from the evidence, we agree with both the trial judge and

Appellate Division that a reasonable jury could find the defendant guilty of

each charge. See State v. Reyes, 50 N.J. 454, 458-59 (1967). From our review

of the record, we are satisfied that the strength of the State’s case leads to no

other conclusion.

                                        VI.

      For the reasons set forth, the judgment of the Appellate Division is

affirmed.



       CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN
filed a dissent, in which JUSTICE LaVECCHIA joins.




                                        39
                             State of New Jersey,

                             Plaintiff-Respondent,

                                       v.

                               Orlando Trinidad,

                             Defendant-Appellant.


                          JUSTICE ALBIN, dissenting.


      The egregious trial errors that led to the conviction of Officer Orlando

Trinidad on charges related to police misconduct were not harmless beyond a

reasonable doubt. Those errors denied Trinidad the fundamental right to a fair

trial. Because the majority affirms a conviction I believe should be reversed, I

respectfully dissent.

      The majority admits that the alleged victim’s testimony about

“notorious episodes of police brutality were highly prejudicial” and “could

inflame the passions of the jury, tainting their evaluation of Trinidad.” Ante at

___ (slip op. at 27). The majority admits that the referenced “notorious

incidents of police brutality could have led the jury, in turn, to liken Trinidad

to the officers in those cases” and that “[t]he risk of undue prejudice was

simply ‘too high.’” Ante at ___ (slip op. at 28) (quoting State v. Cole, 229

N.J. 430, 448 (2017)). Instead of striking the impermissible testimony, the
                                         1
trial court instructed the jury that it could use the damning testimony in its

deliberations, thus further heightening the prejudice against Trinidad.

         The majority also concedes that the trial court should have stricken

Lieutenant Cofone’s testimony that Trinidad’s actions “appeared to have been

criminal.” Ante at ___ (slip op. at 23). That improper opinion testimony

attesting to Trinidad’s guilt invaded the sole province of the jury. It is hard to

imagine more prejudicial testimony in the trial of a police officer than an

alleged victim’s irrelevant and inflammatory references to sensational police

brutality cases and a superior officer offering his opinion of the accused’s

guilt.

         When errors prejudice a defendant’s right to a fair trial, “our

fundamental constitutional concepts dictate” that a new trial should be granted,

regardless of “our own views as to whether the evidence established the

defendant’s guilt.” State v. Orecchio, 16 N.J. 125, 129 (1954). Instead of

heeding that admonition, the majority has essentially convened as a jury,

weighed the evidence, and cast its own verdict -- using the harmless-error

doctrine to uphold this tainted verdict. Errors of the magnitude in this case,

however, cannot be considered “harmless” unless they are “harmless beyond a

reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967); see also

State v. McCloskey, 90 N.J. 18, 32 (1982). Finding that the aggregate errors


                                           2
were harmless beyond a reasonable doubt not only devalues the harmless-error

standard in this case, but also lends a precedent to uphold unjust convictions in

future cases.

                                        I.

      Officer Orlando Trinidad responded to the scene of a roadside stop to

assist fellow officers in the arrest of Marcus Jeter who, despite insistent and

urgent police demands, refused to exit his vehicle for over four minutes.

Eventually, the officers forcefully removed Jeter from his car and arrested him.

Based on the apparent conflict between the dashcam videos and the police

reports filed by the officers, Trinidad was charged with aggravated assault,

falsifying records, and official misconduct. Ultimately, based on its viewing

of the dashcam videos, the jury had to decide whether Trinidad engaged in the

use of excessive force by purposely, knowingly, or recklessly causing bodily

injury to Jeter.

      One of the elements of the crimes charged was Trinidad’s state of mind.

The state of mind of the alleged victim -- Jeter -- was not at issue. Whether

Jeter had justifiable reasons for remaining in his car was not relevant to

whether Trinidad unlawfully used excessive force after Jeter was removed

from the car. Because Jeter’s state of mind was not the issue, his testimony

concerning well-publicized and sensational cases of police brutality had no


                                        3
“tendency in reason to prove or disprove any fact of consequence to the

determination of the action” -- Trinidad’s guilt or innocence of the charges.

See N.J.R.E. 401 (defining relevant evidence). Even assuming that Jeter’s

references to sensational cases of police brutality against people of color had

some minimal probative value, it was substantially outweighed by the risk of

undue prejudice. See N.J.R.E. 403.

      Despite the lack of relevance of Jeter’s state of mind, the trial court

permitted Jeter to testify on four separate occasions about some of the most

highly publicized cases of police brutality against people of color in the last

thirty years. Jeter repeatedly referenced the notorious cases of Rodney King,

Sean Bell, Amadou Diallo, and Oscar Grant -- cases covered widely in the

national media.

      In the King case, a video revealed a group of police officers striking a

seemingly compliant African American man with their nightsticks and kicking

him.1 In the Bell case, police officers shot and killed an unarmed African

American man on the morning of his wedding in a hail of fifty bullets. 2 In the


1
  Seth Mydans, Tape of Beating by Police Revives Charges of Racism, N.Y.
Times (Mar. 7, 1991), https://www.nytimes.com/1991/03/07/us/tape-of-
beating-by-police-revives-charges-of-racism.html.
2
  Matt Flegenheimer & Al Baker, Officer in Bell Killing Is Fired; 3 Others to
Be Forced Out, N.Y. Times (Mar. 23, 2012), https://www.nytimes.com/2012/
03/24/nyregion/in-sean-bell-killing-4-officers-to-be-forced-out.html.
                                        4
Diallo case, four white police officers fired on an African immigrant forty-one

times as he reached for his wallet while standing in the vestibule of his

apartment building, killing him. 3 And in the Grant case -- an instance of

excessive use of force in a subway station -- the police shot and killed a young,

unarmed African American man.4 The Grant case was the subject of a feature-

length, award-winning biographical drama called Fruitvale Station (Significant

Productions 2013).

      The references to those sensational police-brutality cases were clearly

capable of inflaming the passions of the jury and “tainting [the jury’s]

evaluation of Trinidad,” as even the majority recognizes. Ante at __ (slip op.

at 27). Indeed, in a trial of a police officer for allegedly assaulting a person of

color, no testimony could have been more incendiary. The only issue in this

trial should have been a judgment on Trinidad’s individual guilt; the court

should not have opened the door to a potential jury referendum on police

violence in general. Trinidad should not have been compared to the police



3
  Jane Fritsch, The Diallo Verdict: The Overview; 4 Officers in Diallo
Shooting Are Acquitted of All Charges, N.Y. Times (Feb. 26, 2000), https://
www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-
diallo-shooting-are-acquitted-all-charges.html.
4
  A.O. Scott, A New Year, and a Last Day Alive, N.Y. Times (July 11, 2013),
https://www.nytimes.com/2013/07/12/movies/fruitvale-station-is-based-on-
the-story-of-oscar-grant-iii.html.
                                         5
officers in the King, Bell, Diallo, and Grant cases. Permitting the jury to draw

a connection to those past cases of police misconduct created an intolerable

risk that the jury condemned Trinidad on the basis of collective guilt.

      Even the prosecutor understood “the inflammatory aspect” of Jeter’s

testimony and likely would have halted the prejudicial references to the

emotionally charged cases had the court not offered its erroneous opinion that

“there’s a question here” about Jeter’s state of mind. Instead of striking Jeter’s

highly prejudicial testimony, the court instructed the jury on the permissible

use of the testimony “insofar as . . . you find it relevant to this witness’s state

of mind.” That instruction amplified the prejudice, effectively guiding the jury

to misuse evidence that should have been excluded from its deliberations.

      Had Jeter been on trial for obstructing the police for disobeying

commands to exit his vehicle, the officers could not have offered testimony

about tragic cases of police officers shot and killed during motor-vehicle stops.

However strong the State’s case might be, it is improbable that such testimony

could ever be deemed harmless. I can discern no difference in Trinidad’s case.

                                         II.

      Further contributing to the unfairness of the proceedings was the

testimony of Lieutenant Cofone, who told the jury that, based on his review of

the dashcam videos, “the actions of the officers . . . appeared to have been


                                         6
criminal.” This Court has repeatedly held that a police-officer witness -- here

a superior officer -- may not venture an opinion on a defendant’s guilt. See

State v. Frisby, 174 N.J. 583, 593-94 (2002). Such a “pronouncement of guilt

. . . intrudes on the exclusive domain of the jury as factfinder.” See State v.

Cain, 224 N.J. 410, 427 (2016). Cofone’s testimony is particularly

problematic because “[a] jury may be inclined to accord special respect to” the

opinion testimony of a police officer. See Neno v. Clinton, 167 N.J. 573, 586

(2001).

      Despite defense counsel’s failure to object, the trial court had an

“independent duty” to give the jury an appropriate charge to disregard the

improper testimony. See State v. Scharf, 225 N.J. 547, 580 (2016) (quoting

State v. Reddish, 181 N.J. 553, 613 (2004)). Courts cannot abdicate their duty

simply because no objection is made. See id. at 581. Cofone’s testimony had

the clear capacity to undermine the jury’s exclusive role as factfinder and

deprive Trinidad of a fair trial. See Frisby, 174 N.J. at 594; see also R. 2:10-2.

                                       III.

      I acknowledge that, without the highly prejudicial testimony that

undermined the fairness of the trial, the State presented sufficient evidence for

a rational jury to return a verdict of guilty. But the means by which a verdict

is returned makes a difference. Fundamental fairness and due process make a


                                        7
difference. State v. Frost, 158 N.J. 76, 87 (1999) (finding that “[e]ven if the

evidence were overwhelming, that could never be a justifiable basis for

depriving a defendant of his or her entitlement to a constitutionally guaranteed

right to a fair trial”). The views of members of this Court are not material to

whether the evidence established Trinidad’s guilt. See Orecchio, 16 N.J. at

129. The only issue is whether the egregious errors committed in this case, in

their aggregate, were harmless beyond a reasonable doubt. See State v.

Weaver, 219 N.J. 131, 162 (2014); see also Orecchio, 16 N.J. at 129. Errors of

constitutional magnitude that “possibly influenced the jury adversely to a

litigant cannot . . . be conceived of as harmless” beyond a reasonable doubt.

Chapman, 386 U.S. at 23-24.

      I cannot conceive that the errors so fully described in the majority

opinion and this opinion did not “possibly influence[] the jury adversely to”

Trinidad, and thus I must conclude that the errors were not harmless beyond a

reasonable doubt. See ibid. By that standard, Trinidad did not receive a fair

trial, and his conviction should be reversed.

      Last, I must express a note of caution to all courts about the overuse of

the harmless-error doctrine. Although no trial is perfect and minor errors

should not be the cause for overturning an otherwise fair trial, significant

errors that undermine the integrity and fairness of the trial process must be


                                        8
addressed by the ultimate remedy -- reversal of the conviction and the grant of

a new trial. When flagrant errors that deprive a defendant of his fundamental

rights are characterized as harmless, confidence in our criminal justice system

is eroded. We depend on prosecutors and trial courts to exercise great care in

adhering to basic constitutional precepts and our rules of evidence. But

prosecutors and courts must know that when they commit egregious errors that

mortally cut into the fair-trial rights of a defendant, there will be real

consequences.

      Because I believe Trinidad did not receive the fair trial guaranteed to

him by our constitution, I respectfully dissent.




                                         9
