                                NOT FOR PUBLICATION WITHOUT THE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-5703-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD J. FREEMAN,

     Defendant-Appellant.
____________________________

                    Submitted March 19, 2019 – Decided August 20, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 15-06-
                    1206.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele Erica Friedman, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Lisa Sarnoff
                    Gochman, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Defendant Richard Freeman appeals from a judgment of conviction that

was entered after a jury found him guilty of committing third-degree possession

of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1);

third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(3); and second-degree possession of CDS with intent to distribute within

500 feet of a public park, N.J.S.A. 2C:35-7.1.        The trial judge sentenced

defendant to an aggregate term of five years in prison with three years of parole

ineligibility.

      On appeal, defendant challenges the trial judge's reliance on the "plain

view" doctrine to deny his suppression motion. He also contends, for the first

time on appeal, that the trial judge erred by failing to instruct the jury with the

entire model jury charge on expert testimony, Model Jury Charges (Criminal),

"Expert Testimony" (rev. Nov. 10, 2003). Also for the first time, he challenges

the trial judge's admitting into evidence, without proper authentication, a map

of the municipality's drug-free zones that the State used to establish that

defendant's possession of CDS with intent occurred within 500 feet of a public

park. Finally, he argues that the trial judge committed reversible error in

refusing to instruct the jury with the "mere presence" charge found in Model




                                                                           A-5703-16T4
                                        2
Jury Charges (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)"

(rev. June 11, 2018).

      We conclude from our review of the record and the applicable principles

of law that defendant's suppression motion was properly denied. Also, although

we agree with defendant that the map was admitted without the required

authentication and it was erroneous to not charge the jury with the complete

expert testimony and "mere presence" charges, we do not discern from the

record the requisite harm or prejudice that would warrant reversal of his

conviction. For those reasons, we affirm.

                                      I.

      The facts adduced at the suppression hearing and trial are summarized as

follows. On February 27, 2015, an anonymous caller informed the Asbury Park

police that the manager at an assisted living facility for disabled persons was

selling narcotics to residents. Two officers responded and when they arrived,

they met an employee who was standing outside. When they asked to speak

with the facility's manager, the employee led them inside and downstairs to the

basement area and she pointed to a door where she said the manager was located.

As one of the officers walked down the hallway, there was an open bathroom

door that led into a bedroom. The officer saw a man, who later turned out to be


                                                                       A-5703-16T4
                                      3
defendant, counting money in the bedroom. The officer then knocked and

looked in, observing a pile of cash and a plastic bag containing white powder on

a dresser that he immediately recognized as potentially being cocaine.

Defendant was placed under arrest. In a search incident to the arrest, the officers

recovered additional money. Defendant was later indicted for the charges that

the jury found him guilty of committing.

         Before trial commenced, defendant filed a motion to suppress. At the

suppression hearing, the arresting officer testified to the above version of what

occurred and defendant also testified. Defendant's testimony differed from the

police officer's. He stated that one of the officers confronted him while he was

upstairs at his place of employment and then he was taken downstairs, where the

officer went through drawers in a room that was used as a breakroom for the

staff.

         After the trial judge denied the suppression motion, and during the ensuing

trial, the arresting officer testified that the facility at which defendant worked

was located within 500 feet of a public park, according to a map that designated

drug-free zones within the community and was obtained from the municipal

clerk's office. The officer relied upon the municipal map and it was admitted

into evidence without objection.


                                                                            A-5703-16T4
                                          4
      The State called another officer as an expert in drug trafficking. After the

officer completed his testimony, the trial judge instructed the jury as to their

consideration of expert testimony.

      After the State rested, defendant testified. He again disagreed with the

police witnesses' version of events and explained that neither the money nor the

cocaine belonged to him.

      Prior to the jury deliberating, the trial judge gave the parties an

opportunity to review his proposed jury instructions. Defendant did not object

to the charge relating to the police officer's expert testimony or any other charge.

He did request a charge on "mere presence," which the judge denied.

      In his final charge to the jury, the judge included a general instruction

relating to the credibility of witnesses, followed by the same instruction he gave

after the State's expert testified. The judge did not read the entire Model Jury

Charge for expert testimony. His charges included the Model Jury Charges'

definition of possession.

      Although given another opportunity to object to any of the judge's

instructions before he released the jury to begin its deliberations, neither party

raised any issues with the charges. The jury was released and later returned its

unanimous verdict.


                                                                            A-5703-16T4
                                         5
      Defendant filed a motion for a new trial that the trial judge denied. The

judge sentenced defendant and this appeal followed.

      On appeal, defendant specifically argues the following four points:

            POINT I

            THE OFFICERS' WARRANTLESS CONDUCT FELL
            OUTSIDE THE SCOPE OF THE PLAIN VIEW
            DOCTRINE BECAUSE THEIR DISCOVERY OF
            THE EVIDENCE WAS NOT INADVERTENT.

            POINT II

            THE COURT OMITTED THE CRUX OF THE
            EXPERT JURY CHARGE, THUS LEAVING THE
            JURY   WITHOUT      ANY   INSTRUCTIONS
            REGARDING HOW TO ASSESS SERGEANT
            SNOWDEN'S TESTIMONY AS AN EXPERT
            WITNESS. (NOT RAISED BELOW).

            POINT III

            THE STATE INTRODUCED ITS ONLY PROOF OF
            THE 500-FOOT ELEMENT, THE MAP, WITHOUT
            PROPERLY AUTHENTICATING THIS HEARSAY
            DOCUMENT. (NOT RAISED BELOW).

            POINT IV

            THE TRIAL COURT COMMITTED REVERSIBLE
            ERROR BY REFUSING TO ISSUE THE 'MERE
            PRESENCE' CHARGE.

      We are not persuaded by any of defendant's contentions. We address them

serially.

                                                                        A-5703-16T4
                                       6
                                       II.

     Turning first to defendant's challenge in Point I to the denial of his

suppression motion, he contends the trial judge's ruling was "patently erroneous"

because the search of his place of employment was based upon a tip about him

selling drugs. Therefore, the officers' investigation "necessarily entailed" a

search for and discovery of CDS that was not inadvertent, making it outside the

scope of the "plain view" exception for warrantless searches. We disagree.

     At the suppression hearing, Asbury Park Police Officer Joseph Leon

testified to the events leading up to defendant's arrest and the seizure of CDS

from him at his place of employment. He stated that the information he and his

partner received from dispatch was based upon an anonymous telephone call

that said the manager of the facility, whom the caller identified as defendant,

was "engaged in selling narcotics," which the officer understood to be heroin.

Prior to arresting defendant, neither officer knew any of the other details of the

information provided in the call.

     Leon described how he inadvertently came to view the CDS on a dresser

in the bedroom where defendant was found counting money. According to Leon,

after the facility's employee walked him down the stairs and directed him to a

bathroom, he observed a "small bedroom adjoined or connected to this


                                                                          A-5703-16T4
                                        7
bathroom," that was accessible through the bathroom. The officer looked into

the open-doored bedroom where he saw defendant. He then knocked on the

door, startling defendant who then placed the cash he had into his pocket. While

speaking to defendant and explaining why the officers were present, Leon "was

able to see a separate quantity of paper currency on top of the dresser, and next

to that pile of cash . . . [he] observed a plastic bag containing what [he]

immediately suspect[ed] to be CDS cocaine" and a straight edge razor blade.

The officer seized the cash and CDS, and arrested defendant.

     On cross-examination, Leon also explained that when he and the other

officer were dispatched to the location, he did not "necessarily" expect to find

CDS at the facility "because [they] were there looking to see if there w[ere]

going to be drugs there . . . ." When he discovered the cocaine, Leon was

surprised because "nine times out of ten, calls like that just . . . don't end up in

that type of situation."

     In a written decision issued on March 1, 2016, the trial judge stated his

reasons for denying defendant's motion. In his decision, the judge made specific

credibility findings, in which he found Leon credible, and he set forth his

findings based upon the officer's testimony.




                                                                            A-5703-16T4
                                         8
     In his legal analysis of whether the plain view exception applied, the judge

addressed whether the officers' discovery of the CDS was inadvertent. The

judge stated "[w]hile the officers were conducting a narcotics investigation, they

were under the impression that they would find a large amount of heroin. Seeing

a small amount of cocaine on the defendant's dresser was an inadvertent

observation Leon made as he looked around the room from the hallway." The

judge concluded that the discovery of the CDS was made in plain view and

denied the motion.

      Our review of a trial judge's evidentiary rulings is limited as they are

reviewed only for an abuse of discretion. State v. Cole, 229 N.J. 430, 449

(2017). In our review, we defer to a trial judge's findings of fact on pre-trial

suppression motions and will not reverse unless the findings are so mistaken and

unsupported by the evidence that it is necessary to intervene. State v. S.S., 229

N.J. 360, 374 (2017); see also State v. Sencion, 454 N.J. Super. 25, 31 (App.

Div. 2018). "An appellate court reviewing a motion to suppress evidence in a

criminal case must uphold the factual findings underlying the trial court's

decision, provided that those findings are 'supported by sufficient credible

evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting

State v. Scriven, 226 N.J. 20, 40 (2016)).


                                                                          A-5703-16T4
                                        9
      We defer to the motion judge's factual findings when supported by

sufficient evidence in the record "because the motion judge, unlike an appellate

court, has the 'opportunity to hear and see the witnesses and to have the "feel"

of the case, which a reviewing court cannot enjoy.'" State v. Gonzales, 227 N.J.

77, 101 (2016) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We also

defer to the court's credibility findings. State v. Locurto, 157 N.J. 463, 472

(1999). "We owe no deference, however, to conclusions of law made by trial

courts in suppression decisions, which we instead review de novo." Sencion,

454 N.J. Super. at 31-32; see also State v. Watts, 223 N.J. 503, 516 (2015).

      Applying our deferential standard of review, we conclude that the trial

judge properly relied upon the plain view doctrine in denying defendant's

suppression motion.

      Like its federal counterpart, Article I, Paragraph 7 of the New Jersey

Constitution protects against "unreasonable searches and seizures" and generally

requires a warrant issued on "probable cause." N.J. Const. art. I, ¶ 7; see U.S.

Const. amend. IV. "[A] warrantless search is presumptively invalid" unless the

State establishes the search falls into "one of the 'few specifically established

and well-delineated exceptions to the warrant requirement.'" Gonzales, 227 N.J.

at 90 (quoting State v. Edmunds, 211 N.J. 117, 130 (2012)); see also Sencion,


                                                                         A-5703-16T4
                                      10
454 N.J. Super. at 32. One such exception is the "plain view" doctrine, which

allows seizures without a warrant if an officer is "lawfully . . . in the area where

he observed and seized the incriminating item or contraband, and it [is] . . .

'immediately apparent' that the seized item is evidence of a crime." Id. at 101

(quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).

      In order to satisfy the plain view doctrine at the time when this case was

decided, 1 the State must have demonstrated:

            (1) the officer was "lawfully in the viewing area," (2)
            the officer discovered the evidence "'inadvertently,'
            meaning that he did not know in advance where the
            evidence was located nor intend beforehand to seize it,"
            and (3) it was "immediately apparent" that the items
            "were evidence of a crime, contraband, or otherwise
            subject to seizure."

            [State v. Earls, 214 N.J. 564, 592 (2013) (quoting State
            v. Mann, 203 N.J. 328, 341 (2010)).]

      Here, defendant is only disputing the inadvertency prong. This prong is

"satisfied when the police 'did not "know in advance the location of the evidence

and intend to seize it," essentially relying on the plain-view doctrine only as a

pretense.'" State v. Lane, 393 N.J. Super. 132, 146-47 (App. Div. 2007) (quoting

State v. Johnson, 171 N.J. 192, 211 (2002)).


1
  In Gonzales, the New Jersey Supreme Court eliminated on a prospective basis
the inadvertence prong of the plain-view test. 227 N.J. at 99.
                                                                            A-5703-16T4
                                        11
      At defendant's suppression hearing, there was no evidence that

undermined the trial judge's finding that the officers' discovery of the CDS was

inadvertent. The evidence that the judge found credible established that police

received a tip that defendant was selling heroin at his place of employment and

they went into the facility to investigate that advice. The officer did not expect

to find any CDS as such calls were, as he testified, usually unfounded and made

only to harm the subject of the call. There was no evidence that either officer

knew from the tip or otherwise that there was CDS at the facility or where CDS

was located within the facility. All they knew was that someone was alleged to

be selling CDS to residents.     They "did not know in advance where [the]

evidence was located nor intend[ed] beforehand to seize it." Mann, 203 N.J. at

341 (quoting Bruzzese, 94 N.J. at 236). Under these circumstances, we have no

cause to disturb the trial judge's decision to deny defendant's suppression

motion.

                                            III.

      Next, we address defendant's challenge in Point II to the trial judge's jury

charge about the expert witness that testified for the State. The State called its

expert, Sergeant George Snowden, a member of the narcotics strike force with




                                                                          A-5703-16T4
                                       12
the Monmouth County Prosecutor's Office. He testified to his training and

background and to the sale and distribution of CDS within the county.

      Following that testimony, the trial judge instructed the jurors:

            Ladies and gentlemen, as a general rule witnesses can
            only testify about facts known to them. This rule
            ordinarily does not permit the opinion of a witness to
            be received as evidence; however, an exception to this
            rule exists in the case of an expert witness who may
            give his opinion as to any matter in which he is versed
            which is material to the case.

            In legal terminology, an expert witness is a witness who
            has some special knowledge, skill, experience, or
            training that is not possessed by the ordinary juror and
            who, thus, may be able to provide assistance to the jury
            in understanding the evidence presented and determine
            the facts in this case.

            In this case the State called Detective George Snowden
            of the Monmouth County Prosecutor's Office as an
            expert in the field of illegal distribution of controlled
            dangerous substances.

      Later, before the trial judge gave the jury its final instructions, the judge

gave the parties an opportunity to review the proposed charges. Defendant did

not object to the expert testimony instruction, which was the same charge the

judge gave earlier, or ask for anything more.




                                                                           A-5703-16T4
                                       13
      In his final charge to the jury, the trial judge gave a general instruction

following the Model Jury Charges relating to the jurors' determination of the

credibility of all witnesses. He stated the following:

            As the judges of the facts you are to determine the
            credibility of the witnesses, and in determining whether
            a witness is worthy of belief and, therefore, credible,
            you may take into consideration: [t]he appearance and
            demeanor of the witness; the manner in which he or she
            may have testified; the witness' interest in the outcome
            of the trial, if any; the witness' means of obtaining
            knowledge of the facts; the witness' judgment and
            understanding; the witness' ability to reason, observe,
            recollect, and relate; the possible bias, if any, in favor
            of the side for whom the witness testified; the extent to
            which, if at all, each witness is corroborated,
            contradicted, supported, or discredited by other
            evidence; whether the witness testified with the intent
            to deceive you; the reasonable or unreasonableness of
            the testimony the witness has given; whether the
            witness made any inconsistent or contradictory
            statement; any evidence which would serve to support
            or discredit the witness' testimony.

            Through this analysis you weigh the testimony of each
            witness and then determine the weight to give the
            testimony. Through this process you may accept all of
            the testimony, a portion of it, or none of it.

      Afterward, the judge delivered the same instruction he gave after Snowden

testified. He did not read the entire Model Jury Charge for expert testimony.

     On appeal, defendant asserts that it was plain error for the trial judge to not

instruct the jury with the complete charge pertaining to expert witnesses as it

                                                                            A-5703-16T4
                                       14
deprived defendant of his due process rights as well as a fair trial, warranting a

reversal of his conviction. He emphasizes that without the complete instruction,

the jury could not properly gauge the testimony and that the failure to issue the

full instruction was clearly capable of producing an unjust result under Rule

2:10-2.

      The complete expert witness charge states the following:

                  As a general rule, witnesses can testify only as to
            facts known by them. This rule ordinarily does not
            permit the opinion of a witness to be received as
            evidence. However, an exception to this rule exists in
            the case of an expert witness who may give (his/her)
            opinion as to any matter in which (he/she) is versed
            which is material to the case. In legal terminology, an
            expert witness is a witness who has some special
            knowledge, skill, experience or training that is not
            possessed by the ordinary juror and who thus may be
            able to provide assistance to the jury in understanding
            the evidence presented and determine the facts in this
            case.
                  In this case, (list experts and areas of expertise)
            or (State and defendant) or (State only) (were called as
            experts) (or called experts).
                  You are not bound by such expert's opinion, but
            you should consider each opinion and give it the weight
            to which you deem it is entitled, whether that be great
            or slight, or you may reject it. In examining each
            opinion, you may consider the reasons given for it, if
            any, and you may also consider the qualifications and
            credibility of the expert.
                  It is always within the special function of the jury
            to determine whether the facts on which the answer or
            testimony of an expert is based actually exist. The

                                                                          A-5703-16T4
                                       15
            value or weight of the opinion of the expert is
            dependent upon, and is no stronger than, the facts on
            which it is based. In other words, the probative value
            of the opinion will depend upon whether from all of the
            evidence in the case, you find that those facts are true.
            You may, in fact, determine from the evidence in the
            case that the facts that form the basis of the opinion are
            true, are not true, or are true in part only, and, in light
            of such findings, you should decide what affect such
            determination has upon the weight to be given to the
            opinion of the expert. Your acceptance or rejection of
            the expert opinion will depend, therefore, to some
            extent on your findings as to the truth of the facts relied
            upon.
                   The ultimate determination of whether or not the
            State has proven defendant's guilt beyond a reasonable
            doubt is to be made only by the jury.

            [Model Jury Charges (Criminal), "Expert Testimony"
            (rev. Nov. 10, 2003).]

      We begin our consideration of defendant's contention by acknowledging

that "[a]ppropriate and proper charges are essential for a fair trial." State v.

Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State v.

Reddish, 181 N.J. 553, 613 (2004)).            "The trial court must give 'a

comprehensible explanation of the questions that the jury must determine,

including the law of the case applicable to the facts that the jury may find.'" Id.

at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court

has an 'independent duty . . . to ensure that the jurors receive accurate

instructions on the law as it pertains to the facts and issues of each case,

                                                                           A-5703-16T4
                                       16
irrespective of the particular language suggested by either party.'"           Ibid.

(alteration in original) (quoting Reddish, 181 N.J. at 613). A jury charge "must

be read as a whole in determining whether there was any error." State v. Torres,

183 N.J. 554, 564 (2004). The appropriate test to apply "'is whether the charge

as a whole is misleading, or sets forth accurately and fairly the controlling

principles of law.'" State v. McKinney, 223 N.J. 475, 496 (2015) (citing State

v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).

         "Because proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the capacity to unfairly

prejudice the defendant." Id. at 495 (quoting State v. Bunch, 180 N.J. 534, 541-

42 (2004)). However, a party may be prejudiced by failing to object to any

charge if "there was an opportunity to object to a ruling, order or charge." R.

1:7-2.

         When a defendant fails to object to an error regarding jury charges, we

review for plain error. R. 1:7-2; State v. Funderburg, 225 N.J. 66, 79 (2016).

"Under that standard, we disregard any alleged error 'unless it is of such a nature

as to have been clearly capable of producing an unjust result.'" Funderburg, 225

N.J. at 79 (quoting R. 2:10-2). "The mere possibility of an unjust result is not

enough. To warrant reversal by this [c]ourt, an error at trial must be sufficient


                                                                            A-5703-16T4
                                         17
to raise 'a reasonable doubt . . . as to whether the error led the jury to a result it

otherwise might not have reached.'"           Ibid. (second alteration in original)

(quoting State v. Jenkins, 178 N.J. 347, 361, (2004)). "[P]lain error requires

demonstration of '[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312,

341 (2007) (second alteration in original) (quoting State v. Jordan, 147 N.J. 409,

422 (1997)).

      Applying these guiding principles, we conclude the trial judge mistakenly

failed to charge the jury with the complete charge, but that mistake did not

constitute plain error. See State v. Hyman, 451 N.J. Super. 429, 455-57 (App.

Div. 2017) (finding no plain error where trial court failed to give Model Jury

Charge on "expert testimony" but delivered a "hybrid" charge by relying on

"[t]he general charge on credibility"). The general credibility charge the judge

gave instructed jurors to consider all of "the witness' means of obtaining

knowledge of the facts; the witness' judgment and understanding; [and] the

witness' ability to reason, observe, recollect, and relate . . . ." Importantly, in

combination with the charge he gave twice about Snowden being called as an


                                                                              A-5703-16T4
                                         18
expert, the judge's final charge made clear that as with all witnesses, the jurors

were to "weigh the testimony of each witness and then determine the weight to

give the testimony.     Through this process [they could] accept all of the

testimony, a portion of it, or none of it." Under these circumstances, we discern

no plain error.

                                            IV.

     We turn to defendant's contention in Point III that the trial judge erred by

admitting a map into evidence without proper authentication. It is undisputed

that defendant did not raise any challenge to the map's admission before the trial

judge.

     Where a defendant does "not object on the same ground on which he

challenges the admission of the map before this [c]ourt, we . . . review the

admission of the map for plain error." State v. Dorn, 233 N.J. 81, 92 (2018) (not

reviewing for plain error where the Court found that defendant waived objection

by not accepting trial court's offer to require production of appropriate witness

to authenticate map). We will find plain error if an "error or omission . . . is of

such a nature as to have been clearly capable of producing an unjust result." R.

2:10-2. "[T]he test to apply is whether the possibility of injustice is 'sufficient

to raise a reasonable doubt as to whether the error led the jury to a result it


                                                                           A-5703-16T4
                                       19
otherwise might not have reached.'" State v. Green, 447 N.J. Super. 317, 325

(App. Div. 2016) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). See also

State v. Williams, 168 N.J. 323, 336 (2001).

      The challenged map was introduced during Leon's trial testimony without

any objection by defendant. The officer testified that he reviewed a map of the

drug-free zones in Asbury Park as part of his investigation and determined that

defendant's place of employment was located within 500 feet of Tot Lot Park, a

public park.   The State also introduced a copy of an ordinance that Leon

recognized as establishing Asbury Park's drug-free zone map. He identified the

signature on the map as the city clerk's and noted that the ordinance was

originally prepared by the city engineer on February 1, 2007, and revised on

April 14, 2009.

      When questioned about the different colored circles that were indicated

on the map, he explained that, "I guess orange circles show the 500-foot

boundaries for public property and parks, the blue circles show the 1[,]000-foot

boundaries for school zone, and I guess it would be somewhat of a darker blue

shows the overlapping area." Leon designated on the map the location of

defendant's place of employment in relation to one of the drug-free zones,

indicating its proximity to Tot Lot Park.


                                                                        A-5703-16T4
                                      20
         At the end of the presentation of evidence and after the denial of

defendant's motion to acquit, the judge reviewed with both parties' counsel the

evidence to be admitted and then given to the jurors during their deliberations.

Defendant did not object to the ordinance or to the map pertaining to the drug -

free zones being admitted or released to the jurors.

     On appeal, defendant specifically argues that under State v. Wilson, 227

N.J. 534 (2017), Leon's testimony was insufficient to authenticate the map. We

agree.

         "In Wilson, . . . . [t]he defendant objected [at trial to a map's admission],

arguing that the map was testimonial hearsay and that its admission violated his

confrontation rights because the State did not produce a witness who had either

prepared the map or could testify to its accuracy." Dorn, 233 N.J. at 91 (citations

omitted).      The Supreme Court concluded "that such maps are not self-

authenticating, and explained that '[p]roper authentication of the map require[s]

a witness who [can] testify to its authenticity and be cross-examined on the

methodology of the map's creation and its margin of error . . . .'" Id. at 91-92

(alterations in original) (citations omitted).

         However, unlike the defendant in Wilson, here, defendant made no

objection.      Moreover, in support of his appellate argument, he fails to


                                                                              A-5703-16T4
                                          21
demonstrate that the admitted map, although not properly authenticated, failed

to properly depict that the location of his offense was not within 500 feet of the

park. Without any demonstration of how the admitted map caused an injustice,

we conclude there was no plain error.

                                             V.

      Finally, we consider defendant's argument in Point IV that the trial judge

erroneously denied his request for a "mere presence" charge. The trial judge

stated that he had never heard of the charge and that he was not inclined to

specifically instruct the jury on it though he was inclined to instruct it on third-

party guilt. He suggested counsel include "mere presence" in the summation,

which counsel did during her closing argument.

      The judge included in his charge instructions about the definition of

possession under the charged offenses. Following the Model Jury Charge for

Possession, the judge instructed in pertinent part, as follows:

            Possession means a conscious knowing possession, . . .
            either actual or constructive. A person is in actual
            possession of an item when he first knows what it is,
            that is, he has knowledge of its character, and,
            secondly, knowingly has it on his person at a given
            time.

            Constructive possession means possession in which the
            possessor does not physically have the item on his


                                                                            A-5703-16T4
                                        22
            person but is aware that the item is present and is able
            to and has the intention to exercise control over it.

            So someone who has knowledge of the character of an
            item and knowingly has both the power and the
            intention at a given time to exercise control over it,
            either directly or through another person, is then in
            constructive possession of that item.

      Here again, after the judge completed his charges to the jury, neither party

raised any objections.

     When a trial judge does not give a jury a charge requested by defendant,

we must determine if the omission of the charge was not harmless error. See

Macon, 57 N.J. at 337-38; State v. Marroccelli, 448 N.J. Super. 349, 370 (App.

Div. 2017). "The test of whether an error is harmless depends upon some degree

of possibility that it led to an unjust verdict." State v. Burton, 309 N.J. Super.

280, 289 (App. Div. 1998). "If the possibility of an unjust result is sufficient to

raise in our minds a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached, a new trial is required." State v.

Walden, 370 N.J. Super. 549, 562 (App. Div. 2004); see also State v.

McLaughlin, 205 N.J. 185, 211-12 (2011). "The prospect that the error gave

rise to an unjust result 'must be real [and] sufficient to raise a reasonable doubt

as to whether [it] led the jury to a verdict it otherwise might not have reached.'"

Marroccelli, 448 N.J. Super. at 370 (alterations in original) (quoting State v.

                                                                           A-5703-16T4
                                       23
J.R., 227 N.J. 393, 417 (2017)).        The standard of determining whether

constitutional error warrants reversal requires the State to show beyond a

reasonable doubt that the error did not contribute to the conviction. See State v.

Camacho, 218 N.J. 533, 548 (2014).

     On appeal, defendant argues that the trial judge deprived him of his

constitutional rights to due process and a fair trial by refusing to read the "mere

presence" charge. Citing to State v. Randolph, 228 N.J. 566, 592 (2017),

defendant states that in that case, the Court "denounced" a trial court's lack of

issuing a "mere presence" charge in a CDS constructive possession case. Id. at

28. He argues the trial judge in his case improperly denied his request for such

a charge and attempts to distinguish the facts in his case from those in Randolph

that took place in an apartment building "with less foot traffic," as opposed to

the staff room here, which he describes as a "considerably-accessible common

area." According to defendant, this distinction "generates a far greater risk of

juror confusion."

     Defendant attempts to further distinguish his case by explaining that the

jury here was required to determine whether he constructively possessed the

cocaine placed on a dresser that was next to a bed on which he was sitting.

Without an instruction, he argues that the jury may have assumed that his


                                                                           A-5703-16T4
                                       24
presence alone suggested involvement in the offenses. The failure to provide

the "mere presence" charge, he asserts, "plainly warrants reversal" because there

was no physical evidence linking him specifically to the drugs. We disagree.

     The "mere presence" charge is set forth in the Model Jury Charge on

accomplice liability. It states the following:

                  Mere presence at or near the scene does not make
            one a participant in the crime, nor does the failure of a
            spectator to interfere make him/her a participant in the
            crime. It is, however, a circumstance to be considered
            with the other evidence in determining whether he/she
            was present as an accomplice. Presence is not in itself
            conclusive evidence of that fact. Whether presence has
            any probative value depends upon the total
            circumstances. To constitute guilt there must exist a
            community of purpose and actual participation in the
            crime committed.

                   While mere presence at the scene of the
            perpetration of a crime does not render a person a
            participant in it, proof that one is present at the scene
            of the commission of the crime, without disapproving
            or opposing it, is evidence from which, in connection
            with other circumstances, it is possible for the jury to
            infer that he/she assented thereto, lent to it his/her
            countenance and approval and was thereby aiding the
            same. It depends upon the totality of the circumstances
            as those circumstances appear from the evidence.

            [Model Jury Charges (Criminal), "Liability for
            Another's Conduct (N.J.S.A. 2C:2-6)" (rev. June 11,
            2018).]



                                                                         A-5703-16T4
                                       25
      The fact that it is contained in the accomplice liability charge is not a bar

to it being used to explain the elements of other charges. As the Court observed

in Randolph, it is a mistake to believe the "mere presence" charge can only be

given in cases dealing with culpability for the acts of others. It expressly stated,

"[n]o constraint barred the trial court from giving the 'mere presence' charge,

and the better course would have been to give the charge to disabuse the jury of

any possible notion that a conviction could be based solely on defendant's

presence in the building." Randolph, 228 N.J. at 592.

      In Randolph, the defendant was found hiding in an apartment above the

apartment where the drugs were found that formed the bases for the criminal

possession charges.    Id. at 573-75.    The defendant was not charged as an

accomplice nor was the accomplice liability instruction given to the jury. The

defendant requested that a "mere presence" instruction be provided to the jury

and on appeal argued that the trial court's failure to deliver the charge was

harmful error. Id. at 576, 580. Although the Supreme Court noted that the better

course was to have given the charge, in light of the charges given on joint and

constructive possession, the Court found the error harmless. Id. at 592-93. The

Court stated that "[t]he charge, as a whole, sufficiently informed the jury —




                                                                            A-5703-16T4
                                        26
without using the words 'mere presence'—that defendant's presence in the

building, standing alone, would be insufficient to establish guilt." Id. at 592.

      Accordingly, while the trial judge here should have given the charge, his

failure to do so was harmless because it could not produce an unjust result. The

judge's recitation of the possession charge established that defendant's mere

presence in the bedroom was not sufficient to convict him as the State was also

required to prove that defendant was "aware that the [CDS was] present and

[defendant was] able to and ha[d] the intention to exercise control over it." As

the Court concluded in Randolph, "giving the charge would have done no harm

and possibly would have been of some benefit" but the failure to deliver it did

not, on its own, result in harmful error warranting a new trial. Id. at 593.2

      Affirmed.




2
  The Court remanded the case in order to determine whether the warrantless
search of the apartment was justified and, in the event there was a retrial,
whether the trial court should instruct the jury on flight, given the facts of the
case. Randolph, 228 N.J. at 572.
                                                                           A-5703-16T4
                                       27
