                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-1344-14T2
                                           A-3634-14T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,             APPROVED FOR PUBLICATION

v.                                          June 13, 2017

DAMMEN D. MCDUFFIE,                      APPELLATE DIVISION
a/k/a BUCKEY MCDUFFIE,
DAMEN MCDUFFY, DAMEN MCDUGGY,

     Defendant-Appellant.
_______________________________

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

HAKEEM A. CHANCE, a/k/a
HAKIM CHANCE,

     Defendant-Appellant.
_______________________________

         Submitted May 4, 2017 – Decided June 13, 2017

         Before Judges Lihotz, O'Connor and Mawla.

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Indictment No.
         12-12-1785.

         Joseph E. Krakora, Public Defender, attorney
         for appellant Dammen D. McDuffie (Alison
         Perrone, Designated Counsel, on the brief).
              Joseph E. Krakora, Public Defender, attorney
              for appellant Hakeem Chance (Gilbert G.
              Miller, Designated Counsel, on the brief).

              Gurbir S. Grewal, Bergen County Prosecutor,
              attorney for respondent (Suzanne E. Cevasco,
              Assistant Prosecutor, of counsel and on the
              brief).

      The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

      In   these   back-to-back   appeals,    co-defendants     Dammen    D.

McDuffie and Hakeem A. Chance, jointly tried before a jury,

separately appeal from a July 29, 2014 judgment of conviction.

Co-defendants argue the trial judge impermissibly denied their

motions requiring the State to release information regarding a

global positioning system (GPS) tracking device used to prove

their involvement in two burglaries.         Also, co-defendants argue

the   judge    erroneously   admitted   testimony   regarding   the   prior

military training of a police officer, who identified McDuffie as

the passenger in the vehicle driven by Chance.        More specifically,

each defendant articulates these challenges, seeking to vacate his

conviction:

              POINT ONE

              THE TRIAL COURT DEPRIVED DEFENDANT OF HIS
              FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A
              FAIR TRIAL WITH A MEANINGFUL OPPORTUNITY TO
              PRESENT A COMPLETE DEFENSE BY SUSTAINING
              DETECTIVE   ECKERT'S  REFUSAL   TO   DISCLOSE
              INFORMATION REGARDING THE MODEL NUMBER OF THE

                                    2                              A-1344-14T2
            GPS TRACKING DEVICE INSTALLED ON THE BMW, THE
            LOCATION WHERE IT WAS INSTALLED, THE TYPE OF
            BATTERY WHICH POWERED THE DEVICE, AND THE
            LENGTH OF TIME IT COULD BE EXPECTED TO HOLD A
            CHARGE SUFFICIENT TO TRANSMIT RELIABLE DATA.

            POINT TWO

            TESTIMONY THAT DETECTIVE AROCHAS WAS A TRAINED
            MILITARY SHARPSHOOTER AND THUS HAD SPECIAL
            TRAINING AND EXPERTISE IN MAKING RELIABLE
            SPLIT-SECOND    IDENTIFICATIONS     WAS    NOT
            RELEVANT, AND ITS POTENTIAL FOR PREJUDICE FAR
            OUTWEIGHED WHATEVER PROBATIVE VALUE IT MIGHT
            HAVE HAD.

Finally,    each    defendant     challenges    the   imposed    sentence     as

manifestly excessive.

       We have reviewed these arguments in light of the record and

applicable law.      We affirm each conviction.       However, insufficient

factual findings require we remand for resentencing and correction

of the judgments of conviction.

       We recite the facts related to the issues on appeal, taken

from the record of the ten-day trial.           After obtaining a warrant,

Detective James Eckert, of the Bergen County Prosecutor's Office

(BCPO), installed a tracking device on a dark blue BMW X6 (BMW)

registered to Chance's mother.        The designated device is available

only   to   law    enforcement;   however,     components   of   the   device,

including the GPS chip, are sold commercially.              The GPS records

location data on the device itself, and transmits its position via



                                       3                               A-1344-14T2
cell towers, which allows police to track the device location in

real time on a laptop.

       On July 12, 2012, a joint surveillance team commenced the

operation.    The team consisted of detectives from the BCPO Special

Investigation Squad who were assisted by local police, operating

three unmarked vehicles.       BCPO Sergeant John Booth was in charge

of the team.      He occupied the tracking vehicle, which was driven

by    Detective   Jonathan   Arochas       and    contained   Detective     James

Eckert, the GPS expert, and Detective Michael Falotico.               The first

of two trailing vehicles contained only BCPO Detective Elliott

Cookson; the other vehicle, driven by Detective Edward Young of

the Fort Lee Police Department, was also occupied by undercover

officers from Hackensack and Teaneck.              The officers in the three

vehicles communicated with one another using portable radios.

Detective Eckert tracked the BMW in real time via the GPS data

transmitted to his laptop, and the officers in the trailing

vehicles maintained intermittent visual contact with the BMW.

       In the days leading up to the investigation under examination,

the    accuracy   of   the   GPS   device        was   checked,   using    visual

observations.     Immediately prior to the events on the evening of

July 12, 2012, Detective Eckert confirmed the GPS device was

functioning properly and accurately recording the BMW's location.

Specifically, Detective Eckert observed the BMW in the parking lot

                                       4                                  A-1344-14T2
of the Hilton Hotel in Hasbrouck Heights, the same location the

GPS pinpointed the BMW.

       At 7 p.m. Detective Young observed Chance enter the BMW,

still parked at the Hilton in Hasbrouck Heights, and drive off.

Detective Eckert used the GPS device while occupying the tracking

vehicle, and the trailing vehicles confirmed the BMW, driven by

Chance, traveled to Englewood and stopped on William Street, across

from McDuffie's address, at 7:32 p.m.      Chance returned to the

Hilton and again began to travel at 8:42 p.m.   The BMW was tracked

to the vicinity of Dubois Court, Englewood, where it stopped for

two minutes.    Detective Eckert acknowledged Dubois Court, which

is not a public street, was not specifically displayed on the

laptop map.    No officer physically observed McDuffie enter the

BMW.    However, Detectives Cookson and Eckert noted Chance and a

black male passenger in the BMW when it stopped for gas on Route 4.

       The police continued to track the BMW as it headed North on

the Garden State Parkway and exited in Nutley at 9:31 p.m.     After

driving around Nutley, at 9:40 p.m., the BMW drove down Spatz

Avenue, a cul-de-sac, turned around, drove one block over and

parked on Margaret Avenue.    The BMW remained parked on Margaret

Avenue for eleven minutes.      During this time, the three law

enforcement vehicles were parked approximately three blocks away,



                                 5                           A-1344-14T2
and the officers did not observe the BMW parked on Margaret Avenue

or see defendants.

     A few minutes after 10 p.m., Sergeant Booth received a call

from the Nutley Police Department, informing him police received

notice an alarm was triggered from a home on Spatz Avenue.                 Later

that evening or early the next morning, Nutley police also received

information regarding the robbery of a second home on Spatz Avenue.

     Spatz Avenue is a short dead end street, with the dead end

abutting the Garden State Parkway.             The two vandalized homes on

Spatz    Avenue   sit    adjacent   to   one   another.     The    first   owner

testified his residence, from which the alarm call was sent, was

ransacked, but nothing was stolen.              The second owner, a Newark

Police Officer, reported his home was broken into some time while

he was at work and listed missing items as a laptop, an iPod, $400

cash, and $14,500 in jewelry.

     After receiving the call from the Nutley police, Detective

Booth instructed the trailing vehicles to stop the BMW.              Detective

Cookson pulled behind the BMW.               The BMW, followed by Cookson,

passed    the   parked    second    trailing    vehicle,   which   joined   the

pursuit.    Finally, the tracking vehicle followed behind the other

two police vehicles.

     When the BMW stopped at a traffic light located at the

intersection of Centre Street and East Passaic Avenue, Detective

                                         6                             A-1344-14T2
Arochas pulled alongside the BMW and activated the police lights

and siren to commence a motor vehicle stop.               Detective Cookson

attempted to pull in front of the BMW to block its lane of travel.

Before   he   could   do   so,   the   traffic   signal   changed,   the   BMW

accelerated, and collided with Detective Cookson's vehicle.                The

BMW then slammed into Detective Arochas's vehicle.             As a result,

the laptop was jarred from Detective Eckert's grasp and closed,

terminating the real time GPS link. The BMW swerved again, hitting

Detective Young's vehicle and sped away.

     The BMW accelerated, reaching a high rate of speed; it ignored

several traffic signals, and drove on the wrong side of the road.

Detective Arochas led the police pursuit and maintained consistent

visual contact.       He watched the BMW strike a center concrete

barrier, while making a sharp left turn.          The impact punctured the

front left tire, yet the vehicle continued traveling on the rim.

The BMW could not negotiate a curve on Long Hill Road, Little

Falls, on three wheels and collided into a stone wall.

     As Detective Arochas's vehicle pulled perpendicular to the

stopped BMW, the passenger briefly turned and faced him. Detective

Arochas was able to get a full view of the passenger's face,

illuminated by headlights, before the passenger turned away and

fled the BMW.     Chance also abandoned the vehicle, but was found



                                       7                             A-1344-14T2
approximately fifty feet from the crash site and arrested. Despite

Detective Young's efforts, the passenger escaped.

      Detective Eckert retrieved the GPS device and downloaded the

location data.     The subsequent search of the BMW recovered two

iPhones traced to Chance, a mini flashlight, a black bandana, ski

mask and one sneaker on the driver's side, and a pair of sneakers

and a cell phone on the passenger's side.             None of the reported

stolen property was recovered or found along the chase route.

      In an unrelated investigation, another officer provided a tip

to   Detective   Arochas,    received     from   a   credible    confidential

informant that "Dammen McDuffie" was involved in the burglaries.

Detective Arochas determined McDuffie lived on Dubois Court in

Englewood, the same area where the BMW stopped prior to proceeding

to Spatz Avenue on July 12.         Searching motor vehicle records, he

found McDuffie's photograph and instantly recognized him as the

passenger he saw in the BMW.         Police obtained an arrest warrant

and went to McDuffie's residence.

      McDuffie was located, standing behind his vehicle, in the

parking lot outside his home on Dubois Court. Four unmarked police

vehicles, carrying at least five officers, including Detectives

Eckert   and     Young,     which    surrounded      McDuffie,    identified

themselves, and attempted to place him under arrest.             When ordered

to get on the ground, McDuffie unsuccessfully attempted to run,

                                      8                               A-1344-14T2
but was grabbed and arrested.               McDuffie resisted efforts to

handcuff him.

    At trial, Sergeant John Booth, Detectives Eckert, Arochas,

and Falotico, who were in the tracking vehicle on July 12, along

with Detectives Cookson and Young from the trailing vehicles,

testified.     Detectives Eckert and Cookson identified Chance as the

driver of the BMW.         Detective Young described the male passenger

in the BMW; Detective Arochas specifically identified McDuffie as

the passenger he saw flee following the crash.

    At the close of evidence, the jury convicted McDuffie of two

counts    of    third-degree    burglary,    N.J.S.A.   2C:18-2,   and   the

disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2.

He was acquitted of hindering apprehension.          Chance was convicted

of two counts of third-degree burglary, three counts of second-

degree eluding/failure to stop, N.J.S.A. 2C:29-2(b), and eight

counts of fourth-degree aggravated assault on a police officer,

N.J.S.A. 2C:12-1(b)(5)(A).        McDuffie's motion for a new trial was

denied.     Sentence was imposed for each defendant and this appeal

followed.

    Co-defendants seek to reverse their convictions challenging

the admissibility of evidence from the GPS unit and testimony

regarding      Detective    Arochas's   prior   military   training.     The

standard for reviewing these issues requires we consider whether

                                        9                           A-1344-14T2
the trial judge abused his discretion.      State v. Ates, 426 N.J.

Super. 521, 537 (App. Div. 2012), aff’d, 217 N.J. 253 (2014),

cert. denied, __ U.S. __, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014).

We consider these two issues.

     Co-defendants argue their right to a fair trial was impeded

because the judge denied their motions to suppress the GPS data

and to disclose specific information regarding the nature and

location of the GPS device.    During a December 19, 2013, pre-trial

Rule 104 hearing, Detective Eckert, who personally installed the

device, was the only witness.    He testified regarding his training

and expertise with the GPS device. He stated the device's efficacy

was dependent upon proper use and acknowledged on occasion the

device distorted speed or displayed inaccurate information when

losing power or when the signal was disrupted by reflections from

water   or   very   tall   structures.   During   cross-examination,

Detective Eckert declined to disclose the model of the GPS device,

where police installed the device on the BMW, the exact battery

used to power the device and the duration of a single charge.

Detective Eckert confirmed the device was used not just in Bergen

County, but by hundreds of other law enforcement agencies across

the country.   Co-defendants objected, asserting non-disclosure of

the identifying information prevented them from engaging an expert

who could contest the reliability of the GPS readings.

                                  10                         A-1344-14T2
      The    trial      judge    considered     and   rejected   co-defendants'

arguments.        He    stated      co-defendants'    requests   would    provide

information to identify "the actual item," disseminating the exact

GPS device, now exclusively accessible to law enforcement, to

"many people."          Further, he noted co-defendants retained the

opportunity to cross-examine Detective Eckert and retain an expert

if they chose.          He concluded the GPS data was admissible.                At

trial, Detective Eckert was again asked where the device was

installed on the BMW.           The State's objection was sustained.

      On    appeal,      co-defendants        maintain   withholding     the   GPS

information impeded their ability to assert a complete defense,

thus violating their due process rights.                 See Crane v. Kentucky,

476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645

(1986) ("[T]he Constitution guarantees criminal defendants 'a

meaningful opportunity to present a complete defense.'" (quoting

California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532,

81   L.    Ed.   2d    413,   420   (1984))).      The   issue   implicates    the

government's privilege to protect law enforcement methods.

      Our law includes authority addressing the law enforcement

privilege, when police seek to protect the identity of informants.

In State v. Milligan, 71 N.J. 373 (1976), the Supreme Court noted

at "common law" there exists a "governmental privilege to withhold

the identity of informants who assist law enforcement officials."

                                         11                               A-1344-14T2
Id. at 380; see also Cashen v. Spann, 66 N.J. 541, 552, cert. den.

423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975) (recognizing

the government's privilege to protect confidential informants).

Currently, N.J.R.E. 516 recognizes this privilege, as set forth

in N.J.S.A. 2A:84A-28, which states:

           A witness has a privilege to refuse to
           disclose the identity of a person who has
           furnished information purporting to disclose
           a violation of a provision of the laws of this
           State   or  of   the   United   States   to  a
           representative of the State or the United
           States or a governmental division thereof,
           charged with the duty of enforcing that
           provision,    and    evidence    thereof    is
           inadmissible, unless the judge finds that (a)
           the identity of the person furnishing the
           information   has   already   been   otherwise
           disclosed or (b) disclosure of his identity
           is essential to assure a fair determination
           of the issues.

     The   right   to   anonymity    of    informants,   however,   is   "not

absolute."    Milligan,     supra,    71    N.J.   at   383.   In   criminal

prosecutions, a court must balance the competing interests of

criminal defendants and the State, a concept stated in federal

jurisprudence.

           The problem is one that calls for balancing
           the public interest in protecting the flow of
           information against the individual's right to
           prepare his defense. Whether a proper balance
           renders nondisclosure erroneous must depend on
           the particular circumstances of each case,
           taking into consideration the crime charged,
           the   possible    defenses,    the    possible


                                     12                              A-1344-14T2
           significance of the informer's testimony, and
           other relevant factors.

           [Id. at 384 (quoting Rovario v. United States,
           353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed.
           2d 639, 646 (1957)).]

     If the State can demonstrate the applicability of a qualified

privilege not to disclose sensitive investigation techniques the

"court then must balance the public interest in nondisclosure

against 'the need of a particular litigant for access to the

privileged information,' . . ."        United States v. Matish, 193 F.

Supp. 3d 585, 597 (E.D. Va. 2016) (quoting In re The City of New

York, 607 F.3d 923, 948 (2d. Cir. 2010)).

     The   Court   emphasized   this   test   requires   a   defendant    to

demonstrate a need for the specific information the government

seeks to protect.      "[F]rivolous demands for information [or]

unsubstantiated allegations of need" will not be enough to justify

disclosure because "[s]omething more than speculation should be

required of a defendant before the court overrules an informer's

privilege of nondisclosure."     Milligan, supra, 71 N.J. at 393.         It

is now well established that "absent a strong showing of need,

courts generally deny disclosure where the informer plays only a

marginal role, such as providing information or 'tips' to the

police or participating in the preliminary stage of a criminal

investigation."    Id. at 387; see also State v. Hernandez, 225 N.J.


                                  13                               A-1344-14T2
451, 467 (2016) (applying Milligan's balancing test stating: "At

least at this stage, we cannot find that the disclosure of the

Witness's identity in the unrelated investigations is necessary

for defendants to receive a fair trial in this case."); State v.

Florez, 134 N.J. 570, 578 (1994) ("Without a strong showing of

need, courts will generally deny a request for disclosure.").

     The State has also asserted the privilege when declining to

disclose surveillance vantage points.    See State v. Garcia, 131

N.J. 67, 70 (1993).   The privilege, set forth in N.J.R.E. 515, is

grounded on N.J.S.A. 2A:84A-27, which provides:

          No person shall disclose official information
          of this State or of the United States (a) if
          disclosure is forbidden by or pursuant to any
          Act of Congress or of this State, or (b) if
          the judge finds that disclosure of the
          information in the action will be harmful to
          the interests of the public.

     In Garcia, the Court held the precise location of a law

enforcement surveillance vantage point remained privileged if

there is "a realistic possibility that revealing the location

would compromise present or future prosecutions or would possibly

endanger lives or property."   Garcia, supra, 131 N.J. at 78.     If

the State makes such a preliminary showing, disclosure of the

location should only occur where it "infringes on a defendant's

constitutional rights."   Id. at 79; see also State v. Laws, 262



                                14                         A-1344-14T2
N.J. Super. 551, 558-59 (App. Div.), certif. denied, 134 N.J. 475

(1993).

     As in the case of overcoming an informant's privilege, a

defendant must first articulate an actual need for disclosure

related to the defense.          "Absent some showing of need by a

defendant for the exact surveillance location, the trial court

should deny its disclosure.       In reaching that conclusion we note

'the ease with which the privilege would be destroyed if disclosure

were required without a substantial showing of need for it.'"

Garcia, supra, 131 N.J. at 80-81 (quoting State v. Oliver, 50 N.J.

39, 47 (1967)).

     Accordingly, when considering application of the privilege

provided in N.J.R.E. 515, a judge engages a Milligan-type balancing

test, weighing "the crime charged, the possible defenses, the

potential significance of the privileged information and other

relevant factors."       State v. Zenquis, 131 N.J. 84, 88 (1993)

(citing Garcia, supra, 131 N.J. at 80-81).             An added requirement

identified in this analysis is the degree to which the testimony

of the surveillance officer is corroborated by other evidence.

Garcia,   supra,   131    N.J.   at        82-83   (denying    disclosure     of

surveillance   location    noting      corroboration      of    the   criminal

activity was provided by an informer's information and drugs found

in the location when identified by the police officer conducting

                                      15                               A-1344-14T2
surveillance);     see    also    Zenquis,     supra,    131    N.J.   at     88-89

(requiring disclosure of surveillance vantage point to protect the

defendant's      confrontation       rights      because       there   was         no

corroboration and no drugs discovered on the suspects or in the

identified location).

     These authorities provide guidance to examine defendant's

demand for disclosure of the GPS device specifics, which the State

claims are privileged.           Although the exact issue has not been

addressed   by   our     appellate   courts,     these   guidelines     must       be

followed in weighing these interests.

     First, we emphasize a defendant's broad claim of need for

disclosure of police procedures, claimed to be privileged, is

insufficient to compel disclosure.           Rather, a particularized need

related to advance a stated defense must be shown.               Florez, supra,

134 N.J. at 578 (stating disclosure should be denied unless the

criminal defendant makes a sufficient "showing of need" for the

information); Garcia, supra, 131 N.J. at 80 ("If the State meets

its preliminary burden for application of the privilege, the court

should permit disclosure if the information sought is relevant and

helpful to the defense or essential to a fair determination of the

case.").

     Second, the judge must determine whether the opportunity to

cross-examine    the     officer,    asserting    non-disclosure       based       on

                                      16                                    A-1344-14T2
privilege,     satisfies    a    defendant's      need    to    challenge   the

credibility of the testifying witness.               For example, inquiry

regarding specific techniques to use the device, issues affecting

the officer's ability to effectively use the equipment, known or

demonstrated flaws or deficiencies in use, are easily raised on

cross-examination to challenge the proficiency of the user and

even the accuracy of the device.

      Third, law enforcement must provide corroborating evidence

extrinsic to the GPS, which ensures a               defendant's rights of

confrontation and fair trial are protected.               As with a claimed

confidential      surveillance        location,   some     corroboration      is

necessary to confirm the reliance of GPS location evidence.

      Finally, whether a defendant has the opportunity to provide

expert testimony to attack the evidence without disclosure of the

requested information must be weighed.

      Here,   co-defendants      do    not   challenge    Detective   Eckert's

qualifications as an expert in the use of the GPS device.                   See

N.J.R.E. 702 ("If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert

by   knowledge,    skill,   experience,       training,    or   education   may

testify thereto in the form of an opinion or otherwise."); see

also United States v. Thompson, 393 F. App'x 852, 858 (3d Cir.

                                       17                              A-1344-14T2
2010) (holding the trial judge properly allowed a lay witness to

testify to the results of GPS tracking where the witness had

particularized knowledge of the GPS's reliability by virtue of his

experience using the device).      Rather, we deduce co-defendants'

claims seeking the GPS device specifications and location on the

BMW challenged the accuracy and reliability of the GPS device's

technology and reported information.

     Generally, the accuracy of GPS devices is accepted.        "[I]n

assessing the Fourth Amendment constraints associated with GPS

tracking,    courts   generally   have   assumed   the   technology's

accuracy."   United States v. Brooks, 715 F.3d 1069, 1078 (8th Cir.

2013).   Our courts routinely order GPS technology to supervise

individuals released pending trial or on parole.         See N.J.S.A.

30:4-123.92 (establishing a program for the continuous, satellite-

based monitoring of sex offenders); N.J.S.A. 2A:162-17(b)(2)(a)-

(1) (permitting the court to place non-monetary conditions on pre-

trial release, including GPS monitoring).      Moreover, commercial

GPS units are widely available, and "smart phones" and laptops all

contain a form of GPS tracking capability.     See United States v.

Jones, 565 U.S. 400, 428-31, 132 S. Ct. 945, 962-64, 181 L. Ed.

2d 911, 933-34 (2012) (Alito, J., concurring) (noting modern

devices contain GPS, the technology is ubiquitous and represents

an inexpensive alternative to traditional physical surveillance);

                                  18                          A-1344-14T2
id. at 415, 132 S. Ct. at 955, 181 L. Ed. 2d at 925 (Sotomayor,

J. concurring) ("GPS monitoring generates a precise, comprehensive

record of a person's public movements that reflects a wealth of

detail. . . ."); see also State v. Earls, 214 N.J. 564, 578-79

(2013)    (discussing       GPS     technology        used   in    cell   phones).

Nevertheless, we have no doubt an expert in this area could opine

on what alters the accuracy of a GPS device, including what

information must be evaluated to make the determination.                          Co-

defendants offered no such proofs.

     Perhaps recognizing these holdings, and noting a challenge

to the accuracy of the GPS device required expert testimony, see

State    v.   Martini,     160    N.J.   248,   263    (1999)     (holding    expert

testimony may be admitted where the accuracy or trustworthiness

of evidence is challenged), co-defendants argue their ability to

obtain an expert was precluded because the information was not

revealed.       We   are    not    persuaded    by     co-defendants'     circular

reasoning.

     The State revealed the computer chip technology responsible

for sending and receiving radio signals, employed by the GPS device

and released the actual location data the device collected.                       The

related datasheet included the manufacturer of the computer sheet

and the recorded location of the BMW, the number of satellites the

device was connected to, and the accuracy, to the meter, of the

                                         19                                  A-1344-14T2
reported location.     In our view, this technical data provides an

adequate foundation for an expert to identify any additional

information necessary to challenge the GPS device's accuracy.          Co-

defendants did not present an affidavit of an expert to explain

common areas of unreliability of GPS devices or offer a link to

how the location on the BMW affected the device's reporting.

Moreover, no expert explained what information was needed to make

this assessment.     The lack of expert testimony or other evidence

to establish how the undisclosed information was "essential to a

fair determination of the case," defeats co-defendants' request

for disclosure.     Garcia, supra, 131 N.J. at 80.

     Co-defendants also suggest the sole evidence tying them to

the scene of the burglaries was the GPS data, requiring the

requested disclosures.       As we stated above, corroboration is

necessary.    Zenquis, supra, 131 N.J. at 89.      Based on the record

evidence,    we   reject   co-defendants'    assertions   as   unfounded.

Unrefuted facts prove police tested the accuracy of the GPS device

prior to commencing surveillance.           Detective Young saw Chance

enter the BMW and Detective Cookson confirmed two men occupied the

BMW after it was shown to stop near McDuffies' residence.         The BMW

was observed exiting the highway in Nutley, and after a house

alarm was tripped on Spatz Avenue, the BMW passed the trailing

surveillance vehicles prior to stopping at the light on Centre

                                   20                             A-1344-14T2
Street and East Passaic Avenue as it headed toward the Parkway

entrance. These uncontroverted facts sufficiently corroborate the

GPS data confirming the location of the BMW occupied by defendants.

     Co-defendants further urge reversal arguing the trial judge

ignored proof of "inconsistencies" in the GPS readings, which

showed the device incorrectly recorded the BMW traveled at various

implausible   speeds.     The   "inconsistencies"      in   the   GPS   data

identified    by   co-defendants    were   examined    during     Detective

Eckert's   testimony.     He    admitted   certain    readings    showed    a

"mistake, but only in speed, not in GPS location."           The evidence

was not offered to prove speed, nor was speed an element of any

offense charged.

     Having considered each of these arguments, we reject co-

defendants' claim the trial judge abused his discretion in denying

their motion for disclosure. See State v. Sessoms, 413 N.J. Super.

338, 342 (App. Div. 2010).         The judge balanced the competing

considerations and weighed the claimed needs presented by the

State and co-defendants.    In light of co-defendants' general claim

for release of the GPS specifications and its location on the BMW,

and the absence of a showing of need for these specifics, we

conclude the interests of the State must prevail to protect ongoing

and future investigations.



                                   21                               A-1344-14T2
     Co-defendants' next challenge the admission of Detective

Arochas's prior military training, as aiding his identification

of McDuffie, despite viewing him for "a split second" in nighttime

conditions.      Detective Arochas testified his training as a Marine

Corps   sniper    provided   special       training   and   expertise,     which

enabled him to remember faces.

     Co-defendants     assert   the    trial    court   erred   in   admitting

statements Detective Arochas was trained as a Marine Corps sniper,

not relevant to his ability to identify the passenger in the BMW.

Co-defendants maintain Arochas's prior military training had no

relationship to his ability to observe "from mobile vantage points

and . . . make reliable split second identifications under . . .

hectic, harrowing and distracting circumstances."

     The issue arose in limine, as co-defendants moved to bar

Detective Arochas background training and experience, arguing the

testimony was prejudicial.        The trial judge denied the motion

concluding this background, specifically the training involving

memory tests to recall observed details, was relevant to the

detective's ability to identify McDuffie.

     When Detective Arochas was questioned regarding his "special

training and experience" as a Marine, McDuffie's objection was

overruled. Detective Arochas then testified he attended the Marine

Corps sniper school and underwent three-months of training in

                                      22                                 A-1344-14T2
"memory,    observation,    and    concentration."            He    explained      the

"memorization school" required "burning an image into your head

so you can identify the objects later. . . . [Y]ou'll look at a

picture for a brief split second, then you'll . . . write down

what you saw in that picture[,]" requiring recall of seven of ten

objects to qualify as a sniper. He then described his observations

of McDuffie during the investigation and chase.                    He insisted his

prior     training   enabled      him    to    remember    McDuffie's         facial

characteristics, even though he saw him very briefly.

     An     evidentiary    decision      is    reviewed    for      an    abuse     of

discretion.    "To demonstrate abuse of such discretion, the danger

of undue prejudice must outweigh probative value so as to divert

jurors 'from a reasonable and fair evaluation of the basic issue

of guilt or innocence.'"       State v. Moore, 122 N.J. 420, 467 (1991)

(quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.),

certif. denied, 111 N.J. 653 (1988)).

     N.J.R.E. 403 allows a court to exclude relevant evidence "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."       The      challenged      testimony        related    to

Detective    Arochas's     ability      to    observe   and    recall      details,



                                        23                                   A-1344-14T2
explicitly, a suspect's physical appearance, which related to

identification at the scene.

       Co-defendants repeat their objection related to the "sniper

training"   testimony,     insisting         it    was   not    relevant   and   was

excessively prejudicial.        The arguments do not explain why the

described memory training and testing was not relevant to Detective

Arochas's    recall.      Co-defendants'            arguments     merely    suggest

nighttime   conditions,     limited      lighting,        and   rapidly    changing

events impeded the detective's observations and concentration,

areas we note that were fully explored on cross-examination.

       We reject as lacking merit the claims of error, arguing

Detective    Arochas     "was     not        qualified     as     an    expert     in

identification" and his statements caused the jury to ignore the

jury    instruction    directed    to        the    accuracy     of    cross-racial

identifications.       The testimony was not an area admissible only

if supported by expert opinion.               Further, "we trust juries to

follow instructions."      State v. Short, 131 N.J. 47, 65 (1993).                 We

have no reason to conclude the jury did not do so in this case.

       Accordingly, we conclude the trial judge did not abuse his

reasoned discretion when reviewing the evidence and rejecting co-

defendants' motion to bar admission of Detective Arochas's prior

qualifications.    State v. Collier, 316 N.J. Super. 181, 193 (App.

Div. 1998), aff’d, 162 N.J. 27 (1999).                   Nor do we conclude the

                                        24                                  A-1344-14T2
testimony substantially prejudiced co-defendants or led the jury

to an unjust result.

     We now examine each defendant's arguments asserting errors

requiring      remand    and   resentencing.          McDuffie       challenges     the

sentences imposed a five-year term, subject to a two and one-half

year term of parole ineligibility for the burglary count one; a

discretionary extended ten-year term with a five-year period of

parole ineligibility on the third-degree burglary conviction in

count two, to be served consecutive to the sentence in count one;

and a consecutive six-month term for resisting arrest in count

twenty — were insufficiently supported.                Not only does defendant

assert   the    judge    erroneously      applied     aggravating       factor     two,

(gravity and seriousness of harm inflicted on the victim), a point

conceded by the State, he also argues findings underpinning the

imposition of the discretionary extended term were not fully

articulated,       see   State    v.   Dunbar,      108   N.J.   80,     89     (1987)

(delineating      a   four-part    test      when   imposing     a    discretionary

extended    term      sentence),   then      double    counted       when     applying

aggravating factors three (risk of re-offense), six (extent of

prior record) and nine (need for deterrence), N.J.S.A. 2C:44-1(a)

(3), (6), (9).        McDuffie also challenges the support for imposing

consecutive sentences as flawed and insufficient.                      See State v.



                                        25                                     A-1344-14T2
Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S.

1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

      After merger, Chance was sentenced to an aggregate term of

seventeen years in prison: four years for the two burglaries in

counts one and two, each subject to a two-year period of parole

disqualification to run consecutive to each other; nine years for

eluding in counts three, four and five, with a four-year period

of parole ineligibility, concurrent to each other and consecutive

to counts one and two, and eighteen months for counts six, seven,

and   eleven,   aggravated   assault   of   police   officers,    to   run

concurrent to count one.

      The judge imposed applicable fines and penalties.          Further,

he ordered each defendant to pay significant restitution.

      Though it maintains the errors are not fatal, and urges the

sentences be affirmed, the State concedes the trial court failed

to articulate its reasons for imposing consecutive, rather than

concurrent sentences.    The State also agrees aggravating factor

two was inapplicable despite the judge's statements.

           The role of appellate courts in reviewing
           sentences is to determine: (1) whether the
           exercise of discretion by the sentencing court
           was based upon findings of fact grounded in
           competent, reasonably credible evidence; (2)
           whether the sentencing court applied the
           correct legal principles in exercising its
           discretion; and (3) whether the application


                                  26                              A-1344-14T2
           of the facts to the law was such a clear error
           of judgement that it shocks the conscience.

           [State v. Megargel, 143 N.J. 484, 493 (1996)
           (citing State v. Roth, 95 N.J. 334, 363-65
           (1984)).]

     In this matter, the trial court's sentencing findings were

less than thorough.      The judge merely recited aggravating and

mitigating factors he applied, and make findings only regarding

aggravating factor two, which the State concedes, and we agree,

does not apply.

     First, we reject, as lacking merit, McDuffie's claim the

court   impermissibly   double-counted      his   criminal    record,   when

granting the State's motion for a discretionary extended term, and

again, when imposing aggravating factor six, which considers the

extent and seriousness of a defendant's prior record.             "[F]acts

that establish[] elements of a crime for which a defendant is

being   sentenced   should    not    be     considered   as    aggravating

circumstances in determining that sentence."         State v. Kromphold,

162 N.J. 345, 353 (2000) (citation omitted).         McDuffie's criminal

history was not a "fact" that was a necessary element of an offense

for which he was being sentenced.         Further, it cannot be disputed

McDuffie had more than the requisite number of offenses to qualify

for an extended term.        Indeed, the trial judge was not then




                                    27                              A-1344-14T2
required     to   ignore   the   extent   of    his    criminal    history     when

considering applicable aggravating factors.

     Second, we do agree with co-defendants' arguments stating the

lack of expressed findings when imposing consecutive rather than

concurrent sentences require the sentences be vacated and the

matter remanded for resentencing.              Even though the decision to

impose a consecutive sentence lies within a judge's discretion,

the reasons for doing so cannot be assumed and must be stated.

State   v.   Miller,   108   N.J.   112,       122    (1987).     A   remand    for

resentencing is required when the court fails to set forth a

separate statement of reasons for imposing consecutive sentences.

See State v. Abdullah, 184 N.J. 497, 514-15 (2005) ("[B]ecause the

trial court did not explain why it imposed consecutive sentences,

we are compelled to remand for the court to place its reasons on

the record.").

     Here, rigorous arguments on this aspect of sentencing were

advanced by the State and on behalf of defendants.                A remand might

be avoided if the "sentencing transcript makes it possible to

'readily deduce' the judge's reasoning."                 State v. Miller, 205

N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601,

609 (2010)).      However, this is not such a record.           We cannot glean

from the judge's limited comments what findings he relied upon.

More significantly, the judge summarily stated the "analysis will

                                     28                                   A-1344-14T2
be the same for both defendants."                This "one size fits all

analysis" falls short of the specific findings required when

imposing sentencing.

    Finally,    the   State    agrees     the    judge   "improperly   imposed

separate [Victims of Crime Compensation Board] fees and [Safe

Neighborhood Service Fund] penalties on the merged convictions."

    In   summary,     we   affirm   the   convictions      imposed    for   each

defendant.   However, we are constrained to vacate the sentences

and remand for the court to set forth reasons for the application

of aggravating and mitigating factors, the basis for rejecting

argued   mitigating    factors,     and    for     the   imposition    of    the

consecutive sentences.        The judgment of conviction must also be

corrected as to assessed fines and penalties.

    Affirmed in part and reversed and remanded in part for

resentencing.




                                     29                                 A-1344-14T2
