                                NOT FOR PUBLICATION WITHOUT THE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-3524-16T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

GUILIO MESADIEU, a/k/a
GUILIO MESUDIEU,
EMMANUEL MERVUILUS,
JOSEPH PIERRE, and JASON
PIERRE,

     Defendant-Appellant.
________________________

                   Submitted March 20, 2019 – Decided May 13, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 15-04-0293.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

                   Michael A. Monahan, Acting Union County
                   Prosecutor, attorney for respondent (Meredith L. Balo,
                Special Deputy Attorney General/Acting Assistant
                Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Guilio Mesadieu appeals from his March 13, 2017 judgment of

conviction for second-degree certain persons not to have firearms, N.J.S.A.

2C:39-7, following a jury trial. Defendant was found in a dark parking lot,

asleep in his car, with a handgun placed on each of his legs. The judge sentenced

defendant to an extended term of twelve years in prison with a six-year parole

disqualifier.     Defendant argues that (1) the trial judge barred him from

presenting a defense; (2) the trial judge improperly granted private counsel's

motion to withdraw; (3) his motion for a mistrial should have been granted after

the State disclosed a video mid-trial; (4) his motion to suppress guns found in

his car should have been granted; (5) the State presented improper opinion

testimony; (6) the prosecutor improperly shifted the burden of proof to

defendant during summation; and (7) his sentence was excessive.            After

reviewing the record in light of the contentions advanced on appeal, we affirm.

      On December 13, 2014, Elizabeth Police Officers Cruz and Farinas were

dispatched to a multi-family complex in response to a report of a "[d]isorderly

group." Without activating their overhead lights or sirens, the officers drove to

the rear of the unlit driveway.

                                                                        A-3524-16T4
                                       2
      Officer Cruz observed one car exiting the driveway and three other cars

parked in the lot. The first car that the officers approached was running with its

headlights on, and a man who was under the influence was sitting in the driver's

seat. The officers arrested him and placed him in the rear of their patrol car.

      The second car the officers approached was also running, with loud music

emanating from it. When he approached the driver's side of the car, Officer

Cruz saw defendant in the driver's seat holding a revolver on each of his thighs

with his fingers on the triggers. Cruz also saw two empty bottles of Hennessy

Cognac and a bullet-proof vest. Defendant's chair was reclined back, his eyes

were closed, and he did not notice the approaching officers.

      Before they could open the doors of defendant's car, the driver of the third

car got out of his vehicle. Using a normal tone of voice so not to alert defendant,

Cruz pointed his weapon at this man, handcuffed him, and placed him near the

first car. Officer Farinas stood by the passenger's side of defendant's car. The

officers then quietly opened the front doors of defendant's car, each placed his

hand on one of defendant's hands, then loudly said "police, don't move . . . ."

      Officer Cruz testified at trial that defendant appeared calm, had no

difficulty exiting the car and did not appear under the influence of any substance.

An expert testified the guns were operable.


                                                                          A-3524-16T4
                                        3
        K.A.1 testified for the defense that he and some friends were drinking and

celebrating the birthdays of defendant and another friend.         When officers

approached his car, K.A. told them that he was waiting for his cousins before

going out to celebrate. The officers saw a cup of liquor in K.A.'s cup holder and

arrested him for driving under the influence.

        The officers then went to the third car, "Maki's car," woke up Maki, saw

bottles in his car, and arrested him for driving under the influence. The officers

placed Maki in the rear of the patrol car, next to K.A. K.A. then observed the

officers approach defendant's car, pull defendant out of his car, and "slam[]" him

to the ground. Defendant appeared dazed as the officers held him up and called

for back-up.

        Defendant testified that to celebrate his and another friend's birthday, he

went to the liquor store, then went to the parking lot where his friends were

talking and drinking in their cars. His radio was on, but he never played loud

music. He became "woozy" and passed out in the car. He did not remember

anything else until he woke up the next morning at the police station. Defendant

noticed a gash on his left knee and his pants and jacket were ripped. Defendant

testified that he did not have guns in the car, he never possessed a gun, and he


1
    We use initials to preserve the witness's confidentiality.
                                                                          A-3524-16T4
                                          4
was not a violent person. Defendant also testified that, though they were friends,

that trial day was the first time in two years he had spoken with K.A., and the

first time he heard about "being body slammed in the parking lot . . . ."

      Elizabeth Police Officer Benenati, who arrived as back-up, testified as a

rebuttal witness for the State that when he arrived at the scene, defendant was

standing on his own, in handcuffs.       Defendant was "[p]ossibly" under the

influence of drugs or alcohol, but was not unconscious, nor did he appear "in a

state of blackout." The officer testified that defendant swayed and staggered a

bit but never had to be held up or supported "in any way." A video of defendant

at the police station showed him obeying instructions and standing on his own.

       Defendant raises the following issues on appeal:

            POINT I: THE COURT'S DECISION TO BAR
            DEFENDANT FROM PRESENTING A DEFENSE AT
            TRIAL WAS AN ABUSE OF DISCRETION.

            POINT II: IT WAS ERROR FOR THE COURT TO
            GRANT PRIVATE COUNSEL'S MOTION TO BE
            RELIEVED BASED ON DEFENDANT'S FAILURE
            TO PAY LEGAL FEES. [2]

            POINT III: THE DEFENDANT'S MOTION FOR A
            MISTRIAL FOLLOWING LATE DISCLOSURE OF
            DISCOVERY AFTER COMMENCEMENT OF THE
            TRIAL SHOULD HAVE BEEN GRANTED.

2
   For this issue and Point V, defendant does not indicate, as required, that this
issue was not raised in the trial court. R. 2:6-2(a)(1).
                                                                            A-3524-16T4
                                        5
            POINT IV: THE WARRANTLESS SEARCH OF
            DEFENDANT'S VEHICLE VIOLATED HIS RIGHT
            TO BE FREE FROM AN UNLAWFUL SEARCH
            AND SEIZURE GUARANTEED BY THE NEW
            JERSEY AND UNITED STATES CONSTITUTIONS.

            POINT V: THE STATE PRESENTED IMPROPER
            OPINION  TESTIMONY    FROM   REBUTTAL
            WITNESS OFFICER BENENATI WHICH DENIED
            DEFENDANT A FAIR TRIAL.

            POINT VI: COMMENTS BY THE PROSECUTOR
            IN SUMMATION VIOLATED DEFENDANT'S
            PRESUMPTION OF INNOCENCE.

            POINT VII:    THE DEFENDANT'S EXTENDED
            TERM SENTENCE OF TWELVE (12) YEARS WITH
            SIX (6) YEARS OF PAROLE INELIGIBILITY WAS
            EXCESSIVE AND SHOULD BE MODIFIED AND
            REDUCED. (NOT RAISED BELOW).

                                 I.

      Defendant, who represented himself at trial, maintains the trial judge

abused her discretion when she precluded him from presenting evidence. He

argues that because he did not present "[t]estimony concerning what law

enforcement purportedly told him," he was unable to prove that "his possession

of the guns in the car was bogus."

      We review a trial court's evidentiary rulings under an abuse of discretion

standard. State v. Scott, 229 N.J. 469, 479 (2017). "A reviewing court must not


                                                                        A-3524-16T4
                                       6
'substitute its own judgment for that of the trial court' unless there was a 'clear

error in judgment'—a ruling so 'wide of the mark that a manifest denial of justice

resulted.'" Ibid. (quoting State v. Perry, 225 N.J. 222, 233 (2016)).

      The United States Constitution and New Jersey Constitution guarantee all

criminal defendants "a meaningful opportunity to present a complete defense."

State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S.

683, 690 (1986)). A "core value[]" of the New Jersey Constitution and its

Compulsory Process Clause includes a defendant's right "to present all relevant

evidence necessary for the defense and the right to a fair trial." Garron, 177 N.J.

at 166. However, "a defendant does not have a right to call a witness who will

offer irrelevant testimony." State v. Garcia, 195 N.J. 192, 203 (2008).

      Relevant evidence "means evidence having a tendency in reason to prove

or disprove any fact of consequence to the determination of the action." N.J.R.E.

401. "[R]elevant evidence may be excluded 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." N.J.R.E. 403.

      Here, defendant sought to elicit testimony from members of the Union

County Prosecutor's Office homicide unit regarding a "deal." Defendant gave


                                                                          A-3524-16T4
                                        7
only vague information about this "deal," and the trial judge found it would not

have been relevant. Defendant insisted on calling unknown members of the

prosecutor's office to refresh his own memory of what was allegedly discussed

with him during a December 19, 2014 meeting. The trial judge explained to

defendant:

             Then maybe you have to interview them first. I'm not
             going to permit you to conduct a fishing expedition on
             the stand if it turns out the jurors are going to be hearing
             evidence or information that's not relevant to their
             determination in this case. Again, maybe it's relevant.
             Maybe it's not. But I'm not going to permit you just to
             call witnesses -- and you don't even know who they are
             at this point -- to testify about things that might not be,
             again, relevant and material for this jury.

                   ....

             I can't stop you nor would I from subpoenaing those
             witnesses. All I'm saying, just because you subpoena
             someone and even if they show up in court, doesn't
             mean they're going to testify. So all I can say is do
             whatever you think you feel is best for you and your
             case. I can't guide you and that's again -- I don't see
             you getting up and speaking to her. This is why you
             have stand-by counsel for this kind of situation where I
             think you're not quite sure of how to proceed, and I
             really can't give you legal advice but there's somebody
             sitting right there who can. It just seems to me might
             be a good time to actually ask her. You don't have to
             take [stand-by counsel]'s advice. All I can ask you to
             do is at least consider speaking to her about it. This
             might be important. The whole trial is important but
             maybe what you discussed is relevant. From what I'm

                                                                            A-3524-16T4
                                          8
            hearing right now it's not, and I'm not going to let the
            jury hear that testimony. If you want to subpoena
            witnesses, if you want to try and figure out who it was
            that you spoke to, that's fine. It's just there's not a whole
            lot of time that you have.

      Defendant told the trial judge that during this meeting at the prosecutor's

office, he was told that he would be released from jail if he accepted

"assignments." Defendant then informed the judge that he wanted to tell the

jury about a meeting with one of his prior attorneys and a former detective at

the jail. Defendant would not give the judge further information on what this

meeting was about:

            THE COURT: This is like pulling teeth, Mr. Mesadieu.
            You're not making it easy. Could you tell me what the
            discussion was about? If you're reluctant, that's fine,
            because I sense you don't want to respond. That's my
            interpretation of your demeanor at this moment. You
            seem a little reluctant. Are you reluctant to talk to me
            about the conversation?

            [DEFENDANT]: Yes.

            THE COURT: But you understand if you don't tell me
            what the conversation was about [at] that meeting, then
            I can't make a decision about whether it's relevant or
            not; and that means I'm going to bar you from talking
            about it.

            [DEFENDANT]: I'm not going to discuss that.




                                                                            A-3524-16T4
                                         9
            THE COURT: All right. So the only conversation you
            want the jurors to hear about is the one that you
            informed me about, the one on December 19, 2014?

            [DEFENDANT]: Well, I'm not going to discuss the
            conversation.

            THE COURT: Which conversation?

            [DEFENDANT]: The conversation of me and the
            person in the county. I understand.

            THE COURT: Not in the prosecutor's office but in the
            county?

            [DEFENDANT]: But I will speak on it.

            THE COURT: You will speak on what?

            [DEFENDANT]: On the fact that I received that visit.

            THE COURT: In the jail?

            [DEFENDANT]: In the jail.

            THE COURT: You can't speak on something that's not
            relevant.

            [DEFENDANT]: Of course, it's relevant.

            THE COURT: Then you have to tell me what happened
            during the conversation for me to decide whether it's
            relevant. . . .

      The judge held a Rule 104 hearing in which a detective and assistant

prosecutor testified regarding alleged pressure placed on defendant to become a


                                                                       A-3524-16T4
                                     10
confidential informant. After their testimony, the judge found that defendant's

proffered testimony that he was pressured days after his arrest to give

information about a victim in a shooting would "cause confusion of issues, could

mislead the jury and certainly, certainly [cause] undue delay. . . ."

      When defendant later informed the judge that he wished to subpoena

another witness on the same issue, the judge denied defendant's request and

found the proffered evidence not relevant under N.J.R.E. 401 and N.J.R.E. 403.

The judge explained to defendant:

            [DEFENDANT]: So basically you telling me that I'm
            supposed to defend myself based on the story that
            Elizabeth Police state that they found me in a vehicle
            allegedly holding two guns with my hands. They didn't
            mention any gloves that I had any gloves in my hands
            and they [didn't] extract any DNA or fingerprints from
            it. On top of that, they informed -- not allegedly. They
            did, in fact, inform the prosecutor's office to come
            speak to me as to being an informant to a crime where
            -- I put it like this. From the time that this homicide
            happened, if the State could prove that I was even in
            New Jersey, then I'm willing to just give up this
            argument.

            THE COURT: Well, the State doesn't have that burden.
            We're only talking about one particular day -- sir, to
            answer your question, I can't tell you what defense to
            present. It's up to you whether you testify and what
            you're going to testify to. But I am going to and I have
            established the parameters. You cannot talk about what
            was discussed in the prosecutor's office days after you
            were arrested.

                                                                        A-3524-16T4
                                       11
            [DEFENDANT]: It's my Sixth Amendment right to
            present my defense and also my Fifth Amendment right
            to testify.

            THE COURT: That's right. Within parameters. There
            are rules we all have to follow. You, too. You
            promised you would.

            [DEFENDANT]: So it has something to do with the
            case. It has something to do with the case. They
            mention the case. They mentioned that they would
            release me.

            THE COURT: Yes, five days after you were arrested -
            -

            [DEFENDANT]: Four.

            THE COURT: Thanks. You're splitting hairs, Mr.
            Mesadieu. If the discussion had occurred four days
            before, I would see your point a hundred percent. Then
            your point would be hey, look, you know what? They
            questioned me. I don't have any information. I'm not
            going to be an informant. And all of a sudden I got
            these guns planted on me. It didn't happen before. It
            happened after.

            I don't see how it's relevant.

      Because defendant was representing himself, the court took a larger role

in explaining the relevance of proffered evidence. The judge did not abuse her

discretion by limiting defendant's presentation of witnesses to support his theory




                                                                         A-3524-16T4
                                       12
that the police fabricated evidence in retaliation for his post-arrest refusal to

assist the police as an informant.

                                        II.

      Defendant argues that the judge's grant of private counsel's motion to

withdraw because of defendant's failure to pay legal fees prejudiced him and

denied him his constitutional right to counsel of his choice. Although he initially

objected to private counsel's motion due to the "time frame," defendant later

withdrew the objection and refused counsel from the public defender's office.

      "The decision whether to relieve counsel is committed to the sound

discretion of the trial court, with a presumption against granting the request."

State v. Biegenwald, 126 N.J. 1, 21 (1991); see also Jacobs v. Pendel, 98 N.J.

Super. 252, 255 (App. Div. 1967) ("The granting of leave by the court is

generally in the discretion of the court and depends upon such considerations as

proximity of the trial date and possibility for the client to obtain other

representation.").

      "An attorney may withdraw for justifiable and lawful cause, after giving

proper notice and obtaining leave of court." State v. Johnson, 274 N.J. Super.

137, 147 (App. Div. 1994). "Justifiable cause for an attorney's withdrawal

includes the failure or refusal of a client to pay or secure the proper fees or


                                                                          A-3524-16T4
                                       13
expenses of the attorney after being seasonably requested to do so." Jacobs, 98

N.J. Super. at 255.

      Private counsel moved to withdraw approximately six months before the

start of trial, without objection from defendant.     Defendant refused court-

appointed counsel.    The judge assigned stand-by counsel from the public

defender's office as a safeguard. The judge's decision to allow retained counsel

to withdraw was within her discretion and did not deprive defendant of an

effective defense.     His rejection of appointed counsel was his own,

constitutionally protected, decision. See State v. King, 210 N.J. 2, 16 (2012).

                                      III.

      Defendant argues that his right to a fair trial was violated when the judge

denied his motion for a mistrial after the State disclosed a video after it had

already rested. Defendant was arrested on December 13, 2014. On January 10,

2015, private counsel sent a notice to the Elizabeth Police Department

requesting that the video recording of defendant's arrest be preserved.

      Outside the presence of the jury, a sergeant from the Elizabeth Police

Department Communications Division testified that he did not find a record of

the defense preservation request. Ultimately, however, the sergeant's search




                                                                          A-3524-16T4
                                      14
through records uncovered a video preserved by Internal Affairs, on an unrelated

matter, that depicted defendant at the precinct. This video was played in court.

      Defendant argues that the judge should have declared a mistrial because

had the video been disclosed prior to trial, it would have changed his defense.

Quoting State v. DiTolvo, 273 N.J. Super. 111, 115 (Law Div. 1994), defendant

maintains that he was prejudiced by the late disclosure, which violates New

Jersey's reciprocal discovery rules, which seek "to prevent surprise, eliminate

gamesmanship, and afford a party an opportunity to obtain evidence and

research law in anticipation of evidence and testimony which an adversary will

produce at trial."

      "Whether an event at trial justifies a mistrial is a decision 'entrusted to the

sound discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47 (2016)

(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). We "will not disturb a trial

court's ruling on a motion for a mistrial, absent an abuse of discretion that results

in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (quoting

Harvey, 151 N.J. at 205)). When deciding whether to grant a motion for a

mistrial, a trial court considers the "unique circumstances of the case." Smith,

224 N.J. at 47. Where an appropriate alternative exists, such as "a curative




                                                                            A-3524-16T4
                                        15
instruction, a short adjournment or continuance, or some other remedy," a

mistrial may not be necessary. Ibid.

      The judge gave defendant additional time during the trial to view the video

and question the sergeant. In addition, defendant and his stand-by counsel

argued on several occasions during summation that he was intoxicated, had no

recollection of the incident, and that his body language in the video showed he

was intoxicated. Defendant also pointed to a portion of the video where he

leaned against a wall then bent over and said he must have been vomiting.

Stand-by counsel argued that when you are drunk, "you can walk, you can talk,

and then next morning you have no memory of what happened."

      A mistrial should only be granted "to prevent an obvious failure of

justice." Smith, 224 N.J at 7 (quoting Harvey, 151 N.J. at 205). In Smith, a

woman was robbed at gunpoint and surrendered her purse with her cell phone

inside to the robber. 224 N.J. at 38. The woman later identified Smith as the

robber. Ibid. The Supreme Court reversed the defendant's conviction and held

that a mistrial was warranted because information that the victim's cell phone

was found on another person was disclosed during trial. Id. at 38-39. The Court

found that this evidence "went to the heart of the defense" because the defendant

maintained at trial that someone else committed the robbery. Id. at 50.


                                                                          A-3524-16T4
                                       16
      Similarly, our Supreme Court reversed and remanded for a new trial

finding that the State violated the defendants' due process rights under Brady v.

Maryland, 373 U.S. 83 (1963) when it "fail[ed] to produce nineteen discovery

items until one week after the beginning of defendants' murder trial . . . ." State

v. Brown, 236 N.J. 497, 502, 529 (2019). The withheld evidence was favorable

to defendants because it supported the defense theory of third-party guilt and it

was material to defendants' case because there was a "'reasonable likelihood'

that the State's Brady violation, in light of the trial court's evidentiary rulings,

affected the judgment of the jury . . . ." Id. at 519-20, 526-27 (quoting Giglio v.

United States, 405 U.S. 150, 154 (1972)).

      While it was unfortunate the video was discovered in the middle of trial,

defendant had an opportunity to use it to his advantage at trial and its late

discovery did not cause an obvious failure of justice. The late production of the

video was not reasonably likely to have affected the verdict.

                                        IV.

      Defendant argues that the warrantless search of his car violated his

constitutional rights because an anonymous tip is insufficient to give the police

reasonable suspicion that criminal activity is afoot, and when the police arrived

at the parking lot, they did not have reasonable suspicion to conduct an


                                                                           A-3524-16T4
                                        17
investigatory stop of defendant's parked car. The State's justification for the

search was that the guns were in plain view of the officers who were rightfully

standing outside the car.

      When we review a motion to suppress, we "must uphold the factual

findings underlying the trial court's decision so long as those findings are

'supported by sufficient credible evidence in the record.'" State v. Elders, 192

N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App.

Div. 2006)).    The United States Constitution and New Jersey Constitution

guarantee the right of individuals to be free from unreasonable searches and

seizures and require a warrant, supported by probable cause and an oath or

affirmation, describe the place to be searched and items to be seized. U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7.

      One exception to the warrant requirement is the plain view doctrine. State

v. Johnson, 171 N.J. 192, 206-07 (2002). An officer may lawfully seize an item

without a warrant when: (1) the officer is lawfully in the viewing area; (2) the

officer discovers the evidence inadvertently; 3 and (3) it is immediately apparent

that the item is associated with criminal activity. Ibid. Here, the officers were


3
    On November 15, 2016, after defendant's arrest, the Supreme Court
prospectively removed the inadvertence requirement from the plain view
exception. State v. Gonzales, 227 N.J. 77, 82 (2016).
                                                                         A-3524-16T4
                                       18
lawfully in the parking lot because they were responding to a call about a

disorderly group. They approached defendant's illegally parked car, which was

running with music blaring, and with the aid of flashlights saw through the car

window the handguns on defendant's legs. Thus, the circumstances justified a

plain view search and seizure of the guns.

                                        V.

      Defendant argues for the first time on appeal that Officer Benenati gave

improper lay opinion testimony when he testified that he thought defendant

might be under the influence of alcohol, but not totally inebriated based in part

on his experience as a police officer and registered emergency nurse. Because

this was raised for the first time on appeal, we apply a plain error standard. State

v. Pressley, 232 N.J. 587, 593 (2018). Plain error is "[a]ny error or omission"

that is "clearly capable of producing an unjust result . . . ." R. 2:10-2.

      "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." N.J.R.E. 701. This rule requires

that lay opinion testimony be "based on an adequate foundation." State v.

Bealor, 187 N.J. 574, 586 (2006) (quoting Neno v. Clinton, 167 N.J. 573, 585


                                                                             A-3524-16T4
                                        19
(2001)). As a result, "[a] lay witness may give an opinion on matters of common

knowledge and observation." Ibid. (alteration in original) (quoting State v.

Johnson, 120 N.J. 263, 294 (1990)).         "Since 1924, because sobriety and

intoxication are matters of common observation and knowledge, New Jersey has

permitted the use of lay opinion testimony to establish alcohol intoxication." Id.

at 585; see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,

cmt. 2 on N.J.R.E. 701 (2018) (noting that a non-expert may testify about his or

her observations of an individual's conduct or soundness of mind).

      Defendant acknowledges that Officer Benenati offered "acceptable lay

opinion" testimony when he testified that based upon his training and

experience, he thought defendant may have been under the influence of alcohol

or drugs. Defendant, however, argues that the following expert testimony was

inadmissible:

            [PROSECUTOR]: Have you in the course of your time
            as an officer and a nurse seen people that are in that
            state?

            [WITNESS]: Yes.

            THE COURT: Which state though?

            [PROSECUTOR]: State of unconsciousness or of total
            inebriation.

            [WITNESS]: Yes.

                                                                         A-3524-16T4
                                       20
            [PROSECUTOR]: And what are some of the things
            that you observe those people doing?

            [WITNESS]: They're not able to walk. Some of them
            aren't even able to talk. They certainly don't follow our
            commands. A lot of times they're vomiting, may have
            other complications going along with the vomiting.

The admission of this testimony did not amount to plain error.

      Defendant maintained throughout trial that he was too intoxicated to

remember what happened. He did not say he was unconscious.              Stand-by

counsel conceded that two handguns may have been found in defendant's car,

but maintained the guns were not found resting on defendant's lap. She said

that, while defendant could not remember what happened, he was certain the

handguns were not his.

      The judge instructed the jury pursuant to the model charge that it could

"consider the evidence as to . . . defendant's consumption of alcoholic beverages

in determining whether he was intoxicated to such a degree" that he was

incapable of knowingly possessing the handguns. See Model Jury Charges

(Criminal), "Intoxication Negating an Element of the Offense (N.J.S.A. 2C:2-

8(a))" (rev. Oct. 18, 2005).

      Officer Benenati's testimony that defendant did not appear to be as

intoxicated as he claimed was not clearly capable of producing an unjust result.

                                                                        A-3524-16T4
                                      21
His testimony did not interfere with the jurors' ability to use their common sense

and experience to evaluate the extent of defendant's intoxication from the

evidence.

                                         VI.

      Defendant argues that the prosecutor's statements during summation were

improper and shifted the burden of proof to defendant.           "The standard for

reversal based upon prosecutorial misconduct is well-settled in the law. It

requires an evaluation of the severity of the misconduct and its prejudicial effect

on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515,

575 (1999).     An appellate court will not reverse a conviction because of

prosecutorial misconduct "unless the conduct was so egregious as to deprive

defendant of a fair trial." Ibid.

      The prosecutor said:

              And I'm going to get into a little bit of the defense case
              although I don't really know what there is to get into.
              But these facts are undisputed. There is no alternative
              explanation that's been offered to you. There's been
              speculation. There's been conjecture. The courtroom
              is no place for speculation.

When stand-by counsel objected to the prosecutor's comment, the judge

instructed the jury that "defendant doesn't have any burden so he doesn't have to

offer any alternative explanation." The prosecutor then stated:

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                                         22
            Thank you, Judge. Let me clarify. The defendant is
            under no burden. However, when you are presented
            with facts and you are presented with a case, it needs to
            be substantiated. You can't come into a courtroom,
            drum up [a] conspiracy theory and ask a group of
            people to believe it. That's not how life works.

                   ....

            What evidence in this case do you have to think that
            these officers had a motivation to do this to this
            individual?

                   ....

            In order for you to find the defendant not guilty, you
            have to believe that these officers are professional liars
            ....

      The judge instructed the jury that summations were not evidence. She

said: "the statement of the [p]rosecutor that to find defendant not guilty you have

to believe the officers are professional liars is not a correct statement of law."

      The judge instructed the jury consistent with Model Jury Charges

(Criminal), "Presumption of Innocence" (approved Oct. 26, 1992) and Model

Jury Charges (Criminal), "Reasonable Doubt" (rev. Feb. 24, 1997):

            The defendant has pled not guilty to the charge. The
            defendant is presumed to be innocent and unless each
            and every essential element of an offense charged is
            proved beyond a reasonable doubt, the defendant must
            be found not guilty of that charge.



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                                        23
            The burden of proving each element of the charge
            beyond a reasonable doubt rests upon the State and that
            burden never shifts to the defendant. The defendant in
            a criminal case has no obligation or duty to prove his
            innocence or offer any proof related to his innocence.

      The judge carefully instructed the jury to ignore the prosecutor's improper

comments. We assume the jury listens to and follows the court's instructions.

State v. Ross, 218 N.J. 130, 152 (2014). Defendant was not deprived of a fair

trial by improper prosecutorial comments.

                                      VII.

      Finally, defendant claims his sentence was excessive. We evaluate a

court's sentencing determination using a deferential standard of review and must

"not substitute [our] judgment for the judgment of the sentencing court." State

v. Lawless, 214 N.J. 594, 606 (2013). We will affirm a sentence unless:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]




                                                                        A-3524-16T4
                                      24
      Defendant argues that even though he was statutorily eligible for an

extended term, the judge's decision to impose the extended term resulted in an

excessive sentence.      The judge found aggravating factors three, risk of

committing another offense; six, prior criminal record; and nine, the need for

deterrence.    N.J.S.A. 2C:44-1(a)(3), (6), (9).     The judge did not find any

statutory mitigating factors. N.J.S.A. 2C:44-1(b). She stated:

              Now, I remember very clearly the testimony of the
              officer that he and his partner had to be very careful not
              to surprise, I guess, Mr. Mesadieu because they were
              concerned that since he had the guns on his lap and the
              fingers on the triggers that he might fire if he was
              startled, and they were very cautious about how they
              handled that situation.

              That is one of the most dangerous situations I can think
              of because, of course, it poses not just a risk of injury,
              but a risk that somebody could be killed.

      The judge carefully followed the statutory sentencing guidelines and did

not abuse her discretion. Having considered defendant's arguments in light of

the record and prevailing law, we affirm defendant's convictions and sentence.

      Affirmed.




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