                                NOT FOR PUBLICATION WITHOUT THE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-2563-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMAL H. ROBINSON,

     Defendant-Appellant.
______________________________

                    Submitted December 18, 2018 – Decided May 1, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 15-08-1002.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David Anthony Gies, Designated Counsel,
                    on the briefs).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (Tom Dominic Osadnik,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

          PER CURIAM
      Defendant Jamal H. Robinson appeals from the Law Division's judgment

of conviction that it entered after a jury found him guilty of conspiracy to

distribute an imitation controlled dangerous substance, N.J.S.A. 2C:35 -11 and

N.J.S.A. 2C:5-2, and the trial court sentenced him to a four-and-a-half-year term

of imprisonment.      His conviction arose from an undercover narcotics

investigation that identified defendant as the person with whom an undercover

police officer arranged a purchase of what was supposed to be heroin and as the

driver of the vehicle involved in the sale.

      On appeal, defendant challenges his conviction and argues that the trial

court erred by admitting Rule 404(b) evidence of other crimes or wrongful

conduct without properly instructing the jury. He also contends that the court

failed to "recall the jury" after it learned that members of the jury might have

been exposed to a press release that was prejudicial to defendant. As to his

sentence, defendant argues that the trial court failed to properly consider certain

mitigating factors. We affirm.

      Defendant's conviction was the result of a 2014 ongoing investigation by

the Bergen County Prosecutor's Office Narcotics Task Force (NTF).                 In

November 2014, a member of the NTF, Detective Damian Pope, learned from a

confidential informant (CI) that an individual named "Mally" was selling heroin.


                                                                           A-2563-16T4
                                        2
Pope had the CI arrange for him an undercover purchase of heroin from Mally,

which transpired under surveillance on November 24, 2014.              From that

transaction, Pope obtained the license plate number of Mally's vehicle, which

Pope used to identify Mally as defendant.

       During the week of December 8, 2014, Pope spoke to defendant on two

occasions and arranged another purchase of heroin from him.           Pope asked

defendant if he could purchase twenty bricks of heroin and they agreed to meet

at a diner on December 10, 2014 to complete the transaction.

       Pope drove to the diner with the CI. When they arrived, before he went

into the diner, Pope told the CI to call defendant to let him know they were there.

Pope entered the diner and seated himself next to a window, leaving the CI in

his car to wait for defendant. Pope watched as defendant drove up in his car and

parked next to Pope's vehicle. The CI got out of Pope's car and into defendant's

vehicle. Defendant then drove the CI to the front of the diner and stopped to let

out the CI and another individual called "Perp," whose was identified as Damar

Palmer.1 Palmer and the CI went inside, leaving defendant behind in his car.

After the CI introduced Palmer and Pope, Palmer reached into his sweatshirt and

first pulled out a brown box containing empty glassine envelopes used to


1
    Palmer was named as a codefendant in this matter.
                                                                           A-2563-16T4
                                        3
distribute heroin before he removed a bag containing a powdery substance that

he said was from Mally.

      At that point, Pope signaled other officers who were conducting

surveillance and an arrest team arrived to apprehend defendant and Palmer. The

bag containing the powdery substance was sent for testing that revealed the

purported heroin was fake. On August 6, 2015, a Grand Jury returned an

indictment, charging defendant with one count with third-degree conspiracy to

distribute an imitation controlled dangerous substance, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:35-11.

      At defendant's ensuing trial, the State called Pope and other officers who

testified about the events surrounding the investigation and leading to

defendant's arrest. The State also presented testimony from other officers who

testified about recordings of defendant's phone calls that he made while in jail

in which he admitted that the substance given to Pope was baby food, not heroin,

and in which he identified himself as Mally. The State's final witness was a

detective who was offered as a law enforcement expert in illicit drug

distribution. After the State rested, defendant made a motion under Rule 3:18-

1 for a judgment of acquittal, which the court denied.




                                                                        A-2563-16T4
                                       4
      Defendant did not testify but called Palmer as a witness. Palmer testified

that he and defendant were indicted together and that he pled guilty to

conspiracy to distribute imitation controlled dangerous substances.           He

explained that he and the CI were the individuals who worked together to sell

heroin to Pope, although the CI was unaware that the actual product was an

imitation. According to Palmer, defendant had been paid only to drive to the

diner without any knowledge about the transaction. Palmer stated that he told

the officers that defendant was not involved in the transaction.

      After considering the evidence, the jury returned a unanimous verdict,

finding defendant guilty of the one charge made against him. As noted, the trial

court later sentenced defendant and this appeal followed.

      On appeal, defendant specifically argues the following:

            POINT I

            THE TRIAL COURT ERRED WHERE IT DID NOT
            INSTRUCT THE JURY ON THE PROPER MANNER
            IN WHICH TO USE THE OTHER CRIME
            EVIDENCE.

            POINT II

            THE TRIAL COURT ERRED WHERE IT DENIED
            DEFENDANT'S MOTION TO RECALL THE JURY
            AFTER BEING DISCHARGED IN LIGHT OF A
            PRESS RELEASE WHICH WAS DISTRIBUTED
            DURING    DELIBERATIONS  AND   WHICH

                                                                        A-2563-16T4
                                        5
             CONTAINED INFORMATION THAT DEFENDANT
             WAS CHARGED IN AN UNRELATED MATTER
             WITH TWO ATTEMPTED MURDERS.

             POINT III

             THE TRIAL COURT ERRED IN SENTENCING
             DEFENDANT    WHERE    IT  FOUND    THAT
             MITIGATING FACTORS (1) AND (2) WERE NOT
             APPLICABLE.

      We are not persuaded by any of these arguments.

      We turn first to defendant's contention in Point I concerning Rule 404(b)

evidence.   According to defendant, the trial court abused its discretion by

denying his motion for a mistrial that was raised after Pope mentioned the

November 2014 investigation that led to the December 2014 encounter.

Defendant first raised the issue with the trial court in one of his pretrial motions.

Specifically, he sought to bar evidence of the November 24, 2014 conversation

between Pope, the CI, and defendant discussing a potential drug sale and

subsequent meeting.      The State initially agreed that any reference to the

November interactions would be limited to placing into context the timeline of

defendant's arrest, but later clarified it would ask Pope if he had known

defendant prior to the December telephone contact in order to explain why he

called in the first place. The trial court ruled that although it would not allow

testimony about the November 2014 meeting between Pope and defendant, it

                                                                             A-2563-16T4
                                         6
would not "restrict the State . . . from having the officer identify or say that he

spoke with Mally that was later identified as the defendant . . . ."

      At trial, Pope never testified about his November 2014 conversations with

defendant, their meeting, or the transaction. He testified to the following,

without any objection being made by defendant:

            [Prosecutor]: All right. Now . . . did you become
            aware of a person by the name of Jamal Robinson?

            [Pope]: Eventually I did, but when I first received the
            information it had nothing to do with -- during the
            month of November I received information by someone
            about someone by the name of Mally. As I furthered
            my investigation, I found out Mally is Jamal Robinson.
            So initially I didn’t get information about Jamal
            Robinson.

                   ....

            [Prosecutor]: Now, you stated that you became
            involved . . . in an investigation around November
            2014 with a person by the name of Mally. You also
            said that you . . . came to learn that his name was
            different. Can you just explain that process?

            [Pope]: Oh. Sometimes we get what is called street
            names. A lot of people have different street names in
            the drug world. So what we would do, we’d conduct an
            investigation. In this case I was able to identify Mr.
            Robinson’s vehicle . . . . [a]nd I was able to run . . . the
            plate and I found that that, indeed, was Jamal Robinson.

            [Prosecutor]: Now, when you became involved in this
            investigation, what was the goal of the investigation?

                                                                           A-2563-16T4
                                         7
             [Pope]: Well, the goal of the investigation was to
             determine if Mr. Robinson was involved in the sales of
             heroin in Bergen County.

      After explaining various aspects of his investigation, Pope was then asked

to explain "[w]hat [he] did . . . to investigate [defendant] and the sale of heroin."

In his response, Pope did not refer to his November 24, 2014 encounter with

defendant.

      Afterward, during a break, defendant moved for a mistrial. He argued that

Pope's testimony violated the prosecutor's agreement that "no reference would

be brought up about anything that took place before December . . . unless

[defense counsel] opened the door." He expressed concern that as a result of

Pope "testify[ing] there was an ongoing investigation . . . the jury[ would] infer

from that there was an ongoing investigation, which was not closed due to

criminal activity on the part of [defendant] . . . ."

      In response to the motion, the trial court noted that defendant did not

object in a timely manner so it could have cured the issue with an instruction to

the jury, if necessary. 2 The court also reminded the parties that there were

discussions during the pretrial conference that there would be a statement about


2
  Defense counsel explained that he did not object because he did not want "the
jury . . . [to] overhear what [he] had to say" at sidebar and was not aware that
the court would, if necessary, excuse the jury for argument on an objection.
                                                                             A-2563-16T4
                                          8
an ongoing investigation limited to giving context to the December transaction,

which would not mention specific bad acts. The court concluded "that there[

was not] any violation of [its] order prohibiting or preventing, at least in the

State's case in chief or any evidence of prior bad acts to come in."

      Prior to his sentencing, defendant raised the issue again as part of his

motion for a new trial. During argument on the motion, counsel conceded that

Pope's comments about a prior criminal investigation did not "amount to

evidence, per se, of prior criminal conduct or prior bad acts of . . . defendant

. . . ." However, according to counsel, the testimony violated the court's pretrial

ruling "that no reference could be made to any criminal investigation" and it

allowed the jurors to believe that defendant was involved in earlier "criminal

activity." The trial court disagreed with counsel and denied the motion because

it concluded that "no [Rule 404(b)] evidence . . . was allowed in."

     On appeal, defendant argues that Pope's testimony implied that he knew

defendant was involved in the sale of heroin when he contacted him in December

2014. He contends that allowing the testimony was in violation of the pretrial

order and inadmissible under Rule 404(b). He specifically argues that prongs

one and four of the test established in State v. Cofield, 127 N.J. 328 (1992) are

implicated. Under prong one, he contends his identity was not a material issue


                                                                           A-2563-16T4
                                        9
as he never disputed that he was in his car at the diner or that he was known as

Mally. Under prong four, defendant argues Pope's knowledge that he previously

acted in a way which led Pope to further investigate defendant was "inherently

inflammatory" especially because his identity was not material. 3 Defendant

further argues that even though he did not object to Pope's testimony, the trial

court should have delivered a limiting instruction stating that the challenged

testimony could not be used by the jury to establish whether defendant was part

of the conspiracy to sell imitation heroin in December 2014. We find no merit

to these contentions.

      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. Smith, 224

N.J. 36, 47 (2016) (quoting State v. Jackson, 211 N.J. 394, 407 (2012)).

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

discretion of the trial court.'" Ibid. (quoting State v. Harvey, 151 N.J. 117, 205

(1997)).




3
  He further contends that the issue was whether he was part of the conspiracy
that began on December 8, 2014. He adds that neither his presence in the
parking lot alone nor the December 8, 2014 telephone call are sufficient to show
that he conspired to sell imitation heroin to the undercover agent.
                                                                             A-2563-16T4
                                        10
      We conclude that the trial court did not abuse its discretion because Pope's

challenged testimony was neither evidence of a prior crime or bad act under

Rule 404(b), nor a violation of the trial court's pretrial limitations on his

testimony.

      Like any decision about the admissibility of evidence, the decision to

admit or exclude Rule 404(b) evidence is left to the trial court's discretion and

will be reversed "[o]nly where there is a clear error of judgment." State v. Green,

236 N.J. 71, 80-81 (2018) (alteration in original) (quoting State v. Rose, 206

N.J. 141, 157-58 (2011)). Where, as here, it is argued that the trial court "failed

to properly apply Rule 404(b) to the evidence at trial," we may "'engage in [our]

own "plenary review" to determine . . . admissibility,'" thereby applying a de

novo review to determine if the trial "court should have, but did not perform a

Colfield analysis." Id. at 81 (citation omitted).

      Under Rule 404(b), "evidence of other crimes, wrongs, or acts is not

admissible to prove the disposition of a person in order to show that such person

acted in conformity therewith."       N.J.R.E. 404(b).     It may be admissible,

however, if evidence is offered to prove "motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident, . . . [if]

relevant to a material issue in dispute." Ibid. If such evidence is being offered


                                                                            A-2563-16T4
                                        11
under one of the exceptions to the general prohibition, the court must apply the

four part analysis stated in Colfield in order to determine admissibility. See

State v. Garrison, 228 N.J. 182, 194 (2017). If the trial court determines that

the evidence is admissible, it must sanitize the information and deliver a

carefully crafted limiting instruction to the jury to reduce any inherent prejudice

in the other-crimes evidence. See Green, 236 N.J. at 84.

      Pope's testimony about how his earlier investigation led to his discovery

that Mally was defendant did not constitute inadmissible other-crimes evidence.

See N.J.R.E. 404(b). His testimony was necessary to explain why in December

2014, he contacted defendant as compared to anyone else to attempt to set up a

drug purchase. The officer did not state or imply that defendant was a criminal

or that he had a criminal past or that he was inlvoved in any earlier bad acts. As

such, it did not constitute Rule 404(b) evidence. See State v. Love, 245 N.J.

Super. 195, 197-98 (App. Div. 1991) (finding no evidence of prior criminal

conduct being offered from a police investigator's statement that "'I believe there

was prior contact I had with [the defendant]. . . . I had interviewed him during a

homicide investigation'"); State v. Ramos, 217 N.J. Super. 530, 537-38 (App.

Div. 1987) (finding an officer's testimony that he was familiar with the

defendant did not "prejudice the defendant by implying that he had committed


                                                                           A-2563-16T4
                                       12
previous criminal acts or was otherwise disposed toward criminal behavior").

Moreover, as already noted above, defendant essentially conceded in his

counsel's oral argument to the trial court that the challenged testimony was not

Rule 404(b) evidence.

      We also agree that Pope's challenged testimony did not violate the trial

court's pretrial order because it was limited to explaining why he made the

December call to defendant without any reference to the November events. We

similarly find Pope's brief comment about November 2014 harmless and reject

any suggestion that his testimony supported an inference by jurors that

defendant had been involved in prior criminal activity or was denied a fair trial.

      Next, we address defendant's argument in Point II about the trial court's

failure to recall the jury after it had been discharged. According to defendant,

the county prosecutor's office issued a press release that mentioned defendant

during the time the jury was deliberating which warranted the jury being recalled

to make sure none of its members had seen the release during their deliberations.

We disagree.

      The record indicates that the trial court completed its instructions to the

jury on October 26, 2016 at approximately 4:00 p.m. Before the jury was




                                                                          A-2563-16T4
                                       13
discharged for the day, it sent out a series of questions. The court decided to

address the questions the next day and discharged the jury for the night.

      The next morning, the court and counsel conferred as to the jury's

questions from the day before, brought the jury into the courtroom to address

the questions, and then directed the jury to resume its deliberations.            At

approximately 2:45 p.m., the jury notified the trial court that it could not come

to a unanimous decision. In response, the court brought the jurors into the

courtroom, inquired of them about their inability to continue to deliberate, and

then reinstructed and directed them to continue their deliberations.

      Just prior to the jury informing the court that it could not reach a verdict,

and unbeknownst to the parties or the court, the prosecutor's office issued a press

release that discussed an initiative targeting gun violence that specifically

mentioned defendant being charged with two counts of attempted murder. The

information was simultaneously posted on the internet. Approximately one hour

after the jury resumed deliberations, it returned its verdict, unanimously finding

defendant guilty as charged in the indictment.

      Months after the verdict, as part of his post-verdict motions, defendant

requested that the jurors be brought back to court. In his argument, defense

counsel acknowledged that the trial court repeatedly instructed jurors not to do


                                                                            A-2563-16T4
                                       14
any independent research about defendant or the case. He also conceded that he

did not have any evidence that any of the jurors saw the press release. However,

he believed that,

            at the very least, . . . it raise[d] a suspicion and perhaps
            even amount[ed] to a basis . . . to have the [c]ourt
            conduct at least inquiries of the jurors as to whether
            during their deliberations any of the jurors looked at
            their cell phones and were made aware of this press
            release which was broadcast.

      In response, the trial court noted its repeated instructions to the jurors

against doing any type of outside research and concluded that defendant's

arguments amounted to "speculation" as there was not "even a scintilla of

evidence that they were exposed to the publication."

     On appeal, defendant states that the question before us is "whether the

record shows a realistic possibility [that] the press release reached one or more

of the jurors." He notes that the press release did not come from a news outlet

and was released after the jury initially informed the judge that it was unable to

return a verdict. He argues that the press release contained inherently prejudicial

information and infers that, because the jury was neither sequestered nor had

cell phones removed from members' possession, one or more of the jurors read

the press release before the jury returned its verdict. Citing to State v. Bey, 112

N.J. 45, 86 (1988), defendant argues that there was a "realistic possibility the

                                                                           A-2563-16T4
                                       15
press release reached one or more of the jurors." We are not persuaded by

defendant's argument.

     Because "[u]ltimately the trial court is in the best position to determine

whether the jury has been tainted," we apply an abuse of discretion standard of

review to challenges to the integrity of jury deliberations. State v. R.D., 169

N.J. 551, 559 (2001). The application of that standard "respects the trial court's

unique perspective" and accords deference to the trial court "in exercising

control over matters pertaining to the jury." Id. at 559-60. Where there is "no

suggestion of outside influence, racial prejudice, media exposure, or any of the

other sorts of irregular influences sufficient to create a potential for prejudice,"

a court has not abused its discretion in denying a request to question a juror or

denying a motion for a new trial. State v. Scherzer, 301 N.J. Super. 363, 495-

96 (App. Div. 1997).

     "New Jersey courts have long recognized the distinction between

allegations of juror misconduct arising at trial and those first alleged after entry

of a verdict, and the dangers to our system of justice posed by interrogating

jurors about their secret deliberations for the purpose of invalidating a verdict. "

State v. Griffin, 449 N.J. Super. 13, 26 (App. Div. 2017) (citing State v. Harris,

181 N.J. 391, 503 (2004)).       "Calling back a jury for questioning following


                                                                            A-2563-16T4
                                        16
discharge is an 'extraordinary procedure,' to be utilized 'only upon a strong

showing that a litigant may have been harmed by jury misconduct.'" Id. at 19

(quoting Davis v. Husain, 220 N.J. 270, 274 (2014)).              "[J]urors can be

questioned after trial only in 'extraordinary' circumstances 'when there is a

strong representation that a defendant may have been harmed by juror

misconduct.'" State v. Bisaccia, 319 N.J. Super. 1, 18 (App. Div. 1999) (quoting

State v. Harris, 156 N.J. 122, 154 (1998)).

     Applying these guiding principles we discern no abuse of the court's

discretion by not recalling the jurors. Contrary to defendant's argument, a

possibility that the jurors read the press release is not sufficient proof to warrant

bringing jurors back to court post-verdict. There was no evidence that any of

the jurors failed to follow the trial court's instructions or even knew about the

press release and there was no evidence that otherwise established a "strong

showing" that an injustice occurred due to any jurors being influence by

anything other than the evidence in the case. See id. at 18-19.

     The Court's opinion in Bey does not alter our decision because that case

addressed claims about juror exposure to publicity adverse to a defendant during

his trial. Under those circumstances, the Court directed that if a trial court was

satisfied that the subject information was prejudicial to a defendant, and there


                                                                             A-2563-16T4
                                        17
was "a realistic possibility that such information may have reached one or more

of the jurors," the trial court should question the jurors about whether they were

exposed and how it impacted their ability to proceed as jurors. Bey, 112 N.J. at

86-87. The Court specifically held "that where a timely, properly supported

midtrial motion to poll the jury concerning prejudicial publicity is refused, and

there is a realistic possibility that information with the capacity to prejudice the

defendant may have reached one or more members of the jury, the defendant

must be given a new trial." Id. at 91.

     As already noted, defendant's case was over for months at the time

defendant raised his claim and he did so without any evidence of juror exposure

to the press release or that their verdict was the result of any outside influence.

The timing of the jury's verdict alone as argued by defendant does not satisfy

the requirement for a "strong showing" of harm.

     Finally, we consider defendant's contentions in Point III about his

sentence. The trial court found aggravating factors three, the risk that defendant

will commit another offense of which he has been convicted; six, the extent of

defendant's prior criminal record and the seriousness of the offenses of which

he has been convicted; and nine, the need to deter defendant and others from

violating the law. N.J.S.A. 2C:44-1(a)(3), (6), (9).         The court found no


                                                                            A-2563-16T4
                                         18
mitigating factors, except mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11),

"imprisonment of . . . defendant would entail excessive hardship to himself or

his dependents," because defendant had three children and a fiancé who relied

on him and would suffer extreme hardship if he spent significant time in prison.

In rejecting other mitigating factors, the trial court placed its reasons on the

record explaining why they were not applicable.

     Defendant argues that, given the circumstances regarding the conspiracy,

the trial court should have found mitigating factor one, that defendant's conduct

did not cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1), and mitigating

factor two, that defendant "did not contemplate that his conduct would case or

threaten serious harm," N.J.S.A. 2C:44-1(b)(2). Defendant argues that a crime

involving a conspiracy to distribute an imitation controlled dangerous substance

is not substantially similar to a crime involving possession with intent to

distribute an actual controlled dangerous substance. He adds that a trial court

cannot refuse to find mitigating factor one solely because of a possessory

controlled dangerous substance offense. He contends that, at the time of his

arrest, he did not flee, that no weapons were seized at the scene, and that he was

not in possession of the imitation drug or charged with possession. For these




                                                                          A-2563-16T4
                                       19
reasons, he argues that his sentence should be reconsidered. We find these

contentions to be without merit.

      We employ a deferential standard when reviewing a trial court's

sentencing decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes,

217 N.J. 57, 70 (2014). We must affirm a sentence unless (1) the trial court

failed to follow the sentencing guidelines; (2) the court's findings of aggravating

and mitigating factors were not based on competent and credible evidence in the

record; or (3) "'the [court's] application of the guidelines to the facts of [the]

case makes the sentence clearly unreasonable so as to shock the judicial

conscience.'" Fuentes, 217 N.J. at 70 (second alteration in original) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)).

      We are convinced that the trial judge adhered to the sentencing guidelines

and the record supports the findings of aggravating factors and the application

of the one mitigating factor. The sentence imposed is well within the court's

sentencing discretion and does not shock our judicial conscience.

      Affirmed.




                                                                           A-2563-16T4
                                       20
