                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2683-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AQUIL MALIK, a/k/a MALIK
AQUIL,

     Defendant-Appellant.
_____________________________

                    Submitted September 26, 2018 – Decided December 10, 2018

                    Before Judges Fuentes and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 15-04-0289.

                    Cynthia H. Hardaway, attorney for appellant.

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Erin Smith Wisloff, Supervising
                    Assistant Prosecutor, and Paula C. Jordao, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant Aquil Malik appeals from his conviction by jury of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count two) for which he was

sentenced to a ten-year term subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2; convictions for first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(5) (count one) and second-degree sexual assault, N.J.S.A.

2C:14-2(c)(1) (count four) were merged into count two.1 Defendant argues:

            POINT I

            THE STATE'S TREATMENT OF DEFENDANT
            WITH RESPECT TO HIS PLEA OFFER WAS
            ARBITRARY AND ABUSIVE.

            POINT II

            THE TRIAL PROSECUTOR'S REMARKS IN
            OPENING AND ON SUMMATION WERE
            IMPROPER.

            POINT III

            THE COURT ERRED IN NOT ALLOWING
            DEFENDANT HIS RIGHT TO CONFRONT THE
            [WITNESS (A.E.)] WITH RESPECT TO HER PRIOR
            INCONSISTENT TESTIMONY.




1
  Count three charging second-degree conspiracy to commit aggravated sexual
assault, N.J.S.A. 2C:5-2; N.J.S.A. 14-2(a)(5), was dismissed at the State's
request.
                                                                       A-2683-16T2
                                      2
            POINT IV

            THE COURT'S DENIAL OF DEFENDANT'S
            REQUEST FOR A NEW TRIAL DUE TO THE
            STATE'S FAILURE TO PRESERVE AND TURN
            OVER EXCULPATORY EVIDENCE WAS IN
            ERROR.

            POINT V

            THE JURY INSTRUCTIONS WERE MISLEADING
            AND INCOMPLETE.

            POINT VI

            THE VERDICT WAS AGAINST THE WEIGHT OF
            THE EVIDENCE.

            POINT VII

            DEFENDANT'S         SENTENCE         SHOULD        BE
            VACATED.

We are unpersuaded by any of these arguments and affirm.

      Defendant and his codefendants, Tyrec D. Phillips and DeQuan McDaniel,

were charged in a single indictment 2 with sexually assaulting seventeen-year-

old A.E. in McDaniel's car on September 4, 2011. In the counts charging

aggravated sexual assault, the State alleged defendants, while aided or abetted

by one or more other persons, used physical force or coercion to sexually


2
  The indictment superseded an indictment that was not included in the record
on appeal.
                                                                       A-2683-16T2
                                      3
penetrate A.E. (count one) and committed acts of penetration upon A.E., whom

they "knew or should have known was physically helpless" because she was

highly intoxicated (count two). In the sexual assault count (count three) the

State alleged all three defendants committed sexual penetration by using

physical force or coercion without severe personal injury having been sustained

by A.E.

      In a pre-indictment plea offer, extended in December 2013 under the first

indictment, the State agreed to recommend a third-degree prison sentence

ranging from three to five years if defendant pleaded guilty to second-degree

sexual assault.3 Status conference orders for Phillips and McDaniel set forth the

same plea offer, although specific sentencing ranges were not set forth in either

document.4


3
  The plea agreement also required the imposition of Megan's Law, N.J.S.A.
2C:7-1 to -23, conditions, parole supervision for life and parole ineligibility
pursuant to NERA.
4
  The State included in its appendix the trial assistant prosecutor's certification
providing that: (1) the same pre-indictment offer was extended to all three
codefendants; (2) on August 4, 2016, defendant's prior counsel counter-offered
– and the State accepted – that defendant would agree to a three-to-five-year
sentence on a plea to second-degree conspiracy to commit aggravated sexual
assault which would not include the imposition of Megan's Law conditions. The
assistant prosecutor continued, prior to entering a plea defendant hired his
present counsel who counter-offered that defendant would plead guilty to an


                                                                           A-2683-16T2
                                        4
      Phillips pleaded guilty in May 2016 to count three of the superseding

indictment, amended to charge third-degree conspiracy to commit criminal

sexual contact, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:14-3(b), admitting he

planned with his codefendants to purposely supply alcohol to A.E. "in order to

get her drunk to sexually assault her." He also admitted to taking A.E. to "a

remote location" and, knowing that she was "drunk and helpless," acted as a

lookout while his codefendants had vaginal intercourse with the victim without

her consent. He was sentenced in accordance with the plea agreement to a one-

year probationary term with nineteen days of jail credit.

      McDaniel pleaded guilty in June 2016 to count two of the superseding

indictment amended to charge third-degree conspiracy to commit aggravated

sexual contact, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:14-3(a). He admitted that he

agreed with his codefendants to commit an act of aggravated sexual contact upon

A.E., and knowing she was helpless and incapacitated by alcohol consumption

and unable to consent to anyone touching her breasts, he drove her to a location




unspecified charge in return for a probationary sentence. This certification,
dated December 13, 2017, was not part of the trial record. Defendant did not
file a reply brief acknowledging the contents of the certification. The State did
not move to supplement the appellate record under Rule 2:5-5. We will not
consider same in our review. Pressler & Verniero, Current N.J. Court Rules,
cmt. 1 on R. 2:5-4 (2018).
                                                                         A-2683-16T2
                                       5
so that he could commit that act for his own sexual gratification. He was also

sentenced to a one-year probationary term with 171 days of jail credit and

ordered to complete fifty hours of community service.

      Defendant argues "the State unfairly and unjustifiabl[y] singled [him] out

for harsher punishment for offenses arising out of the exact same conduct and

proofs as his codefendants." In other sentencing-related arguments, he contends

the trial court erred by failing to apply mitigating factors two, five, seven, nine,

twelve and thirteen and by failing to find "that imprisonment under the facts of

this case would be a serious injustice overriding any . . . need to deter conduct

by others," citing N.J.S.A. 2C:44-1(d).

      We review sentencing determinations with a deferential standard, see

State v. O'Donnell, 117 N.J. 210, 215 (1989), and will disturb a trial court's

sentence only in instances where the sentencing guidelines were not followed,

the aggravating and mitigating factors found by the trial judge were unsupported

by the evidence, or the judge's application of the sentencing guidelines rendered

the sentence clearly unreasonable, State v. Roth, 95 N.J. 334, 364-65 (1984).

Under that deferential standard, only when the facts and law show "such a clear

error of judgment that it shocks the judicial conscience" will we modify a

sentence on appeal. Id. at 363-64.


                                                                            A-2683-16T2
                                          6
      Our analysis of a sentence is heightened, however, when a defendant

claims sentencing disparity. Our Supreme Court observed in State v. Roach,

146 N.J. 208, 231-32 (1996) (citations omitted) (quotation marks omitted),

            uniformity [is] one of the major sentencing goals . . .
            [as] there can be no justice without a predictable degree
            of uniformity in sentencing. . . . The central theme of
            our sentencing jurisprudence is the exercise by the
            courts of a structured discretion designed to foster less
            arbitrary and more equal sentences.

The Court recognized the legislative basis for that structure:

            To minimize disparity, a sentencing court exercises its
            discretion in the structured setting prescribed by the
            [Criminal] Code. Our statutes provide a "'general
            framework to guide judicial discretion in imposing
            sentences' to ensure that similarly situated defendants
            [do] not receive dissimilar sentences." State v. Natale,
            184 N.J. 458, 485 (2005). When an ordinary term of
            incarceration is warranted, N.J.S.A. 2C:43-6(a)
            prescribes statutory ranges for that term based upon the
            degree of the offense: ten to twenty years for a first-
            degree crime, five to ten years for a second-degree
            crime, three to five years for a third-degree crime, and
            up to eighteen months for a fourth-degree crime.
            N.J.S.A. 2C:43-6(a)(1) to (4).

            [State v. Fuentes, 217 N.J. 57, 72 (2014) (second
            alteration in original).]

The purpose of the statutory guidelines is to promote fairness and public

confidence in the "even handed justice of our system." Roach, 146 N.J at 232-



                                                                        A-2683-16T2
                                        7
33 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The ultimate determination

"is whether the disparity is justifiable or unjustifiable." Id. at 233.

      Although we look to the Court's decision in Roach for guidance in

analyzing this disparity claim, we are mindful its facts and those in this case are

dissimilar. In Roach, all defendants were sentenced after trials; none of the

defendants accepted plea offers.      Phillips and McDaniel forwent trial and

pleaded guilty.

      The trial court here found defendant and his codefendants were similarly

situated in that each had unwanted sexual intercourse with the helpless victim

and were "equally culpable," for the assaults. When the State explained the

reasons for extending the codefendants' plea agreements and for declining to

offer similar plea terms to defendant, the trial court took umbrage that the State

re-indicted all defendants with full knowledge of the strengths and weaknesses

of its cases against all three.

      Though the State may have had sufficient evidence justifying its decision

to obtain the superseding indictment against all three defendants, it was also

entitled to discretely assess the proofs necessary to obtain a conviction of each

defendant in formulating plea offers. "The decision whether to offer a plea

bargain is a matter of prosecutorial authority and discretion." State v. Gruber,


                                                                           A-2683-16T2
                                         8
362 N.J. Super. 519, 537 (App. Div. 2003).           "[A] defendant has no legal

entitlement to compel a plea offer or a plea bargain; the decision whether to

engage in such bargaining rests with the prosecutor." State v. Williams, 277

N.J. Super. 40, 46 (1994).

      The record supports the State's assertion that the proofs against defendant

were stronger than those against the codefendants. A.E.'s first perception when

she regained consciousness in the back seat of the vehicle was defendant atop

her, vaginally penetrating her. Defendant was the only one of the three with

whom the victim had a Facebook exchange and two consensual-telephonic

intercepts. Defendant's statement to the police was more self-inculpatory than

those given by the codefendants.

      Although the trial court felt all three codefendants were equally culpable,

the State was entitled to gauge its plea offer on the relative strength of the proofs

in each case. Under the circumstances, we do not perceive that the State abused

its discretion in declining to lower the three-to-five-year offer initially tendered

to defendant, but lowering that same offer to each of the codefendants, even if

it resulted in a greater sentence imposed on defendant after trial – a sentence at

the very bottom of the range for a first-degree crime. "[A] sentence of one

defendant not otherwise excessive is not erroneous merely because a co-


                                                                             A-2683-16T2
                                         9
defendant's sentence is lighter." Hicks, 54 N.J. at 391; see also Roach, 146 N.J.

at 232. As the trial court observed at the sentencing proceeding, "[i]t's not that

[defendant's] offense deserves less, it's that the co[] defendants deserved more

. . . ." The sentencing disparity here was justified.

        We give no credence to defendant's contention that the court erred in

determining the sentence. The court carefully reviewed and set forth its findings

for all proposed aggravating and mitigating factors.             Defendant argues

mitigating factors seven and twelve applied because he had no prior criminal

history and led a law-abiding life for a substantial period of time, and because

he implicated his codefendants in his statements, respectively; he offers no

explanation for his averment that mitigating factors two, five, nine and thirteen

should have been applied.5


5
    The mitigating factors at issue, set forth in N.J.S.A. 2C:44-1(b), are:

              (2) The defendant did not contemplate that his conduct
              would cause or threaten serious harm;

                    ....

              (5) The victim of the defendant’s conduct induced or
              facilitated its commission;

                    ....



                                                                              A-2683-16T2
                                         10
      The court, which also presided over the trial, found that under the

circumstances of the case defendant "should have contemplated something"

when he sexually assaulted the victim. The court could not find on the record

before it that the victim facilitated the crime. And, because it found a risk that

defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3) (aggravating

factor three), based on defendant's arrest and conditional discharge for a

shoplifting offense he committed while released on bail for the sexual assault

charges, the court did not find that the defendant's character and attitude

indicated he was likely to commit another offense.




            (7) The defendant has no history of prior delinquency
            or criminal activity or has led a law-abiding life for a
            substantial period of time before the commission of the
            present offense;

                  ....

            (9) The character and attitude of the defendant indicate
            that he is unlikely to commit another offense;

                  ....

            (12) The willingness of the defendant to cooperate with
            law enforcement authorities;

            (13) The conduct of a youthful defendant was
            substantially influenced by another person more mature
            than the defendant.
                                                                          A-2683-16T2
                                       11
      That conditional discharge also buttressed the court's "find[ing] that

there's no prior criminal activity." See State v. Rice, 425 N.J. Super. 375, 382

(App. Div. 2012) (holding a sentencing court did "not abuse its discretion by

refusing to find mitigating factor seven based on charges that did not result in

convictions"). We also note the court's description of this factor as "a toss-up,"

indicating the factor was of little weight. The court also rejected defendant's

contention that he cooperated with law enforcement, finding defendant's

statement to the police during the investigation of the crime did not warrant that

mitigating factor. See State v. Read, 397 N.J. Super. 598, 613 (App. Div. 2008)

(questioning whether a confession qualifies as a mitigating factor, and holding

that a defendant's confession that provided a limited benefit to the State was not

entitled to any substantial weight in determining a sentence). The lenient plea

offers to the codefendants make obvious that defendant's statement provided no

benefit to the State.

      Defendant did not propose mitigating factor thirteen during the sentencing

proceedings. The court's findings in rejecting mitigating factor three, however,

also warrant rejection of this mitigating factor: "[Defendant] may have been

urged on by his buddies to join in [the sexual assault], it's your turn, but that's




                                                                           A-2683-16T2
                                       12
not strong provocation . . . ." All of the court's findings were supported by the

evidence.

        After a thorough analysis, the court found the risk that defendant would

commit another offense and the need to deter defendant and others from

violating the law, N.J.S.A. 2C:44-1(a)(9), as aggravating factors; and that

defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A.

2C:44-1(b)(8), as a mitigating factor. In light of the balance of the aggravating

and mitigating factors, the judge concluded the mitigating factor did not

substantially outweigh the aggravating factors.

        The court also concluded that it could not find "that imprisonment would

constitute a serious injustice overriding the need for deterrence" after

"consider[ing] everything in light of the trial that the [c]ourt presided over"; it

declined to find the presumption of imprisonment was overcome. N.J.S.A.

2C:44-1(d).6 The record reflects the court's careful consideration of this issue.



6
    Subsection (d) provides in part:

              The court shall deal with a person who has been
              convicted of a crime of the first or second degree . . .
              by imposing a sentence of imprisonment unless, having
              regard to the character and condition of the defendant,
              it is of the opinion that his imprisonment would be a


                                                                           A-2683-16T2
                                        13
The tenor of the court's lengthy sentencing remarks reflect that it was inclined

to reduce the disparity between defendant's sentence and those of his

codefendants. The court, however, adhered to the sentencing guidelines and its

decision was clearly reasonable. Defendant was not so "idiosyncratic," and the

record does not reflect circumstances that were "truly extraordinary and

unanticipated," that imprisonment amounted to a serious injustice. State v.

Jabbour, 118 N.J. 1, 7 (1990) (first citing State v. Jarbath, 114 N.J. 394, 408

(1989), and then quoting Roth, 95 N.J. at 358).

      The ten-year sentence imposed was the minimum for a first-degree crime,

N.J.S.A. 2C:43-6(a)(1), so the court's decision not to accept a mitigating factor,

even if applicable, does not render the sentence unreasonable. The sentence

conforms to the statutory framework and does not constitute an abuse of

discretion; it does not shock the judicial conscience and will not be disturbed.

State v. Cassady, 198 N.J. 165, 184 (2009) (affirming a sentence because it did

not shock the judicial conscience).

      In Point II, defendant argues for the first time on appeal that two

comments in the assistant prosecutor's opening and closing statements – that



            serious injustice which overrides the need to deter such
            conduct by others.


                                                                          A-2683-16T2
                                       14
A.E. was sexually assaulted by defendant and the codefendants – deprived him

of a fair trial and warrant reversal.

      In her opening statement, the assistant prosecutor told the jury that the

night A.E. was assaulted "was the worst night of her life" because she was

assaulted by three males who "took turns penetrating her vagina and her mouth

while she was highly intoxicated, in and out of consciousness, and unabl e to

consent to such actions." We quote that portion of the assistant prosecutor's

summation that defendant set forth in his merits brief:

             On September [fourth, A.E.] was sexually assaulted by
             this defendant and two other individuals . . . [A.E.] that
             night was driven to an isolated area. She was stripped
             of her clothing. Her mouth was wiped out by baby
             wipes, and then there three individuals continued to
             strip her [of] her dignity by continuing to sexually
             assault her . . . .

      Defendant contends the statements were "inaccurate legal assertion[s]"

because the assistant prosecutor knew the codefendants pleaded guilty to

conspiracy charges – not sexual assault. He also argues the comments "grouped

the three defendants together in [one] concerted effort" and "could have unfairly

led the jurors to conclude[] that if [the codefendants], who were not at the trial,

had already been convicted of sexual assault then defendant as part of that group

must also be guilty of that same offense."


                                                                           A-2683-16T2
                                        15
      We review arguments raised for the first time on appeal under a "plain

error" standard which requires reversal only if the error was "clearly capable of

producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325,

337-38 (1971). A conviction will be reversed under this standard only if the

error is "sufficient to raise a reasonable doubt as to whether [it] l ed the jury to a

result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95

(2004) (alteration in original) (quoting Macon, 57 N.J. at 336). "The mere

possibility of an unjust result is not enough." State v. Funderburg, 225 N.J. 66,

79 (2016) (citing State v. Jordan, 147 N.J. 409, 422 (1997)).

      Prosecutorial misconduct does not warrant reversal unless it was "clearly

and unmistakably improper" and was "so egregious that it deprived the

defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (first

quoting State v. Papasavvas, 163 N.J. 565, 625 (2000) and then quoting State v.

Smith, 167 N.J. 158, 181-82 (2001)). In determining whether a prosecutor

exceeded these bounds, we must "consider the tenor of the trial and the

responsiveness of counsel and the court to the improprieties when they

occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v.

Scherzer, 301 N.J. Super. 363, 433 (App. Div. 1997)). When a defendant does

not object to any of the prosecutors' opening and closing remarks, the remarks


                                                                              A-2683-16T2
                                         16
generally "will not be deemed prejudicial." Id. at 576 (citing State v. Ramseur,

106 N.J. 123, 323 (1987)). "The failure to make a timely objection not only

indicates the defense did not believe the remarks were prejudicial at the time

they were made, but also deprives the judge of the opportunity to take the

appropriate curative action." State v. Murray, 338 N.J. Super. 80, 87-88 (App.

Div. 2001) (citing Timmendequas, 161 N.J. at 576).

      "Prosecutors 'are afforded considerable leeway in making opening

statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009)

(quoting State v. Williams, 113 N.J. 393, 447 (1988)). "A prosecutor's opening

statement 'should provide an outline or roadmap of the State's case' and 'should

be limited to a general recital of what the State expects, in good faith, to prove

by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div.

2014) (emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 558

(App. Div. 2004)). With regard to their summations, prosecutors "are expected

to make vigorous and forceful closing arguments to juries." State v. Frost, 158

N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). Still, a

prosecutor's summation "is limited to commenting upon the evidence and the

reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super.

236, 261 (App. Div. 2000) (citing State v. Feaster, 156 N.J. 1, 58-59 (1998)).


                                                                          A-2683-16T2
                                       17
      Applying these standards, we discern no impropriety in the prosecutor's

comments. Nothing in the prosecutor's summation was outside of the evidence

presented and she directly addressed defense counsel's summation which

repeatedly referenced the actions of all three males. During her summation,

defense counsel recounted the evidence adduced at trial: "We heard about group

sex. We heard about training, three guys, one girl. Menage a trois, orgies, trains,

group sex . . . ." She graphically described the codefendants' sex acts in arguing

that A.E. was not physically helpless and consented to sex. She distanced

defendant from the codefendants' actions, describing him as a bystander "outside

of the car watching" the codefendants, simultaneously arguing that A.E.'s

protestations to the codefendants about their actions showed she was "awake

and she's making decisions about what it is that she wants to do and what she

doesn't want to do."

      The prosecutor's comments did not imply that the codefendants had

already been convicted of sexual assault. The issues considered at the trial

warranted mention of the codefendants' acts. The codefendants were alleged to

have aided and abetted defendant in committing sexual penetration by using

physical force or coercion in connection with the charges in the first count of

the indictment. The codefendants' actions were also relevant to the State's


                                                                           A-2683-16T2
                                       18
contention that A.E. was physically helpless at the time of the assaults, and that

she refused to engage in sex with each one of them, especially in light of defense

counsel's summation regarding those issues. Although we see no reason for the

assistant prosecutor to have commented about the victim being stripped of her

dignity, her fleeting comments were not so egregious as to deprive defendant of

a fair trial. See Wakefield, 190 N.J. at 437-38.

      Furthermore, the court twice instructed the jury that counsel's comments

were not controlling. At the outset of the trial, the court instructed the jury that

"whatever is said in the opening statements" and summations is "not evidence

and you can't consider it as such." It reiterated that instruction after summations,

telling the jury they had to "rely solely on [their] understanding and [their]

recollection of the evidence."       Given the considerable leeway afforded

prosecutors in making opening and closing statements, and the court's repeated

instruction to the jury that the attorneys' remarks were not evidence, the

comments – to which no objection was raised – do not provide grounds for

reversal. See Echols, 199 N.J. at 361 (citing Ramseur, 106 N.J. at 323). The

balance of defendant's arguments – regarding the variance between the charges

to which the codefendants pleaded guilty and their actions as stated during the

trial – lack sufficient merit to warrant discussion here. R. 2:11-3(e)(2).


                                                                             A-2683-16T2
                                        19
      Another trial error alleged by defendant in Point III is the court's denial of

his request to impeach A.E.'s credibility with a prior inconsistent statement. The

State adduced A.E.'s testimony that, during a police-arranged consensual

intercept between her and defendant eight months after the assault, she lied

pursuant to police instruction when she told defendant she had a sexually

transmitted disease (STD). Defense counsel confirmed on cross-examination

that A.E. lied during the intercept about the STD. Counsel then attempted to

cross-examine A.E. about her testimony during defendant's juvenile waiver

hearing.7 At that 2013 hearing, A.E. was asked, "i[n] the consensual intercept

you mentioned that you had an STD[.] Did you have an STD?" A.E. answered

affirmatively.   The State objected to that question, arguing defendant was

prohibited from presenting evidence of the victim's sexual conduct pursuant to

the Rape Shield Law. N.J.S.A. 2C:14-7. At a mid-trial hearing,8 A.E. confirmed

the accuracy of the pertinent question and answer at the waiver hearing. When

asked, "[p]rior to September 4[], 2011, when this incident occurred, did you


7
   The record on appeal does not include the juvenile-waiver transcript, but the
trial court read the transcript into the record.
8
   The trial court noted the defense did not follow the dictates of the statute and
seek a pre-trial court order. N.J.S.A. 2C:14-7(a). The court held a hearing mid-
trial out of the presence of the jury after hearing initial arguments at sidebar.


                                                                            A-2683-16T2
                                       20
have the STD prior to this incident or after the incident?" A.E. answered,

"After."

      Following our Supreme Court's directive, we will defer to and uphold a

trial court's evidentiary ruling "absent a showing of an abuse of discretion, i.e.,

there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233

(2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An appellate court

applying this standard should not substitute its own judgment for that of the trial

court, unless 'the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484

(1997)).   That standard governs our analysis of the trial court's denial of

defendant's attempt to cross-examine A.E. about her statement at the waiver

hearing about she had an STD.

      Although the trial court did not determine that the evidence sought to be

introduced involved the victim's sexual conduct, there can be no argument that

issue – the contraction of a sexually transmitted disease – involved "conduct or

behavior relating to the sexual activities of the victim." N.J.S.A. 2C:14-7(f).

The introduction of sexual-conduct evidence is allowed pursuant to the Rape

Shield Law

             only if it is "relevant and highly material, meets the
             requirements of subsections (c) and (d) of [the statute],"

                                                                           A-2683-16T2
                                        21
            and its probative value "substantially outweighs its
            collateral nature or the probability that its admission
            will create undue prejudice, confusion of the issues, or
            unwarranted invasion of the privacy of the victim."
            N.J.S.A. 2C:14-7(a). Under N.J.S.A. 2C:14-7(c) and
            (d), evidence of past sexual conduct is only relevant if
            "it is material to proving the source of semen,
            pregnancy or disease[,]" N.J.S.A. 2C:14-7(c), or "if it
            is probative of whether a reasonable person, knowing
            what the defendant knew at the time of the alleged
            offense, would have believed that the alleged victim
            freely and affirmatively" consented. N.J.S.A. 2C:14-
            7(d).

            [Perry, 225 N.J. at 234-35 (alterations in original)
            (footnotes omitted).]

      The trial court, in determining the admissibility of sexual-conduct

evidence, was required to follow a two-step analysis, first ascertaining if the

evidence was "relevant and necessary to resolve a material issue in light of the

other evidence that is available to address that issue." Id. at 236-37 (citing State

v. Garron, 177 N.J. 147, 172-73 (2003)). If the court deemed the evidence

relevant and necessary, it had to decide if the probative value of the evidence

"outweigh[ed] the prejudicial effect of the victim in the context of the Rape

Shield Law." Id. at 237 (citing State v. Budis, 125 N.J. 519, 532-34 (1991)).

      The trial court ruled that although the evidence was marginally relevant,

its probative value did not outweigh its prejudicial effect because there was no

evidence in the record from which the court could conclude that the victim was

                                                                            A-2683-16T2
                                        22
lying at the prior hearing when she said she had an STD. We see no abuse of

discretion in the court's decision.

      "The probative value of sexual conduct covered by N.J.S.A. 2C:14-7

'depends on clear proof that [the conduct] occurred, that [it is] relevant to a

material issue in the case, and that [it is] necessary to a defense.'" State v. J.A.C.,

210 N.J. 281, 300 (2012) (alterations in original) (quoting Budis, 125 N.J. at

533). The trial court's finding that A.E. had an STD is supported by competent

evidence. The court pointed to A.E.'s testimony during the mid-trial hearing

that she had the STD after the September 2011 incident. The court concluded

there was insufficient evidence that, when she testified at the waiver hearing in

2013, A.E. lied when she said she had an STD, and reasoned that she may not

have had an STD in 2012 during the intercept but contracted one before her 2013

testimony. In other words, although she admitted during the waiver hearing that

she had an STD, that testimony did not establish that she had an STD when the

intercept occurred.

      In determining the prejudicial impact of sexual-conduct evidence, courts

may consider "the trauma to the victim, the degree to which the evidence sought

to be admitted would invade the victim's privacy, the 'impact of a given ruling

on a victim reporting sexual abuse,' as well as the need to guard victims from


                                                                               A-2683-16T2
                                         23
excessive cross-examination and prevent undue jury confusion." Perry, 225 N.J.

at 237 (quoting J.A.C., 210 N.J. at 300). Even if A.E. had an STD, that evidence

did nothing to prove the central defense theories: the victim's awareness and

consent.9 As defense counsel admitted during the mid-trial hearing, the only

purpose in asking A.E. about her statement at the waiver hearing was "just to

put out an inconsistency to attack [A.E.'s] credibility."       A.E. had already

admitted that she lied to defendant when she told him during the intercept, at the

detective's behest, that she had an STD. Moreover, as the Perry Court observed,

questioning a sexual assault victim about sexual-conduct evidence contravenes

the Legislature's intent in enacting the rape Shield Law – to protecting a sexual

assault victim's privacy. 10 See Perry, 225 N.J at 244-46. Allowing the cross-


9
  Although the trial court found that the evidence was relevant, the basis for the
court's finding is not clear. We gather from the colloquy during the hearing on
this matter that the relevance found pertained to the victim's credibility. The
State did not file a cross-appeal so we leave that ruling undisturbed.
10
     The Court cited to several authorities:

              See Assemb. Judciary, Law and Pub. Safety Comm.,
              Statement to Assemb. Bill No. 677, at 1 (Jan. 20, 1994),
              as reprinted in N.J.S.A. 2C:12-7 (2013) ("It is in the
              public interest to protect the privacy of the victim, as
              opposed to allowing the defendant to freely examine the
              victim's past when the examination serves no material
              or relevant evidentiary or constitutional purpose."); see


                                                                          A-2683-16T2
                                         24
examination would have left the jury to speculate about the source of the STD,

and would have called into question A.E.'s sexual activities with others – an

unwarranted privacy invasion, especially considering the lack of clear proof that

she had an STD and the dubious value of that evidence to the defense. The court

properly proscribed defendant's cross-examination of A.E. regarding her

statement during the waiver hearing.

      In Point IV, defendant argues the trial court's jury instruction regarding

the physical force or coercion portion of aggravated sexual assault as charged in

count one of the indictment; and the court's failure to add an instruction

regarding the mental incapacity of the victim when it charged the jury on

aggravated sexual assault as alleged in count two. Defendant states in his merits



            also J.A.C., 210 N.J. at 297 ("It is clear from this series
            of amendments progressively strengthening N.J.S.A.
            2C:14-7, that the Legislature's policy is to direct the
            focus of sexual assault trials toward the alleged crime,
            and away from the lifestyle of the victim."); see also
            Garron, 177 N.J. at 165 ("The [Rape] Shield [Law] is
            intended to deter the unwarranted and unscrupulous
            foraging for character-assassination information about
            the victim. The Statute does not permit introduction of
            evidence of the victim's past sexual conduct to cast the
            victim as promiscuous or of low moral character.").

            [Perry, 225 N.J at 244-46.]



                                                                          A-2683-16T2
                                       25
brief that he requested the trial court to charge "the jury with the mentally

incapacitated definition" and withdrew the request "after the [c]ourt indicated

its unwillingness to honor said request because it did not see how it would assist

defendant and the State had not charged mentally incapacitated in the

indictment." He does not, however, cite to any portion of the record that

establishes his request, the court's declination or his withdrawal. See Spinks v.

Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008) (imposing a duty

on parties to refer to "specific parts of the record to support their argument" so

this court did not have to scour the record to find same (citing State v. Hild, 148

N.J. Super. 294, 296 (App. Div. 1977))). Indeed, at the charge conference on

November 3, 2016 defense counsel said she had no objection to the model jury

instructions for both counts.

        Inasmuch as defendant did not comply with Rule 1:7-2,11 our review is

plain error. R. 2:10-2. "A claim of deficiency in a jury charge to which no


11
     The Rule provides:

             For the purpose of reserving questions for review or
             appeal relating to rulings or orders of the court or
             instructions to the jury, a party, at the time the ruling or
             order is made or sought, shall make known to the court
             specifically the action which the party desires the court
             to take or the party's objection to the action taken and


                                                                            A-2683-16T2
                                         26
objection is interposed 'will not be considered unless it qualifies as plain error

. . . .'" State v. R.B., 183 N.J. 308, 321 (2005) (quoting State v. Hock, 54 N.J.

526, 538 (1969)). In this context, "plain error requires demonstration of '[l]egal

impropriety . . . prejudicially affecting the substantial rights of the defendant

sufficiently grievous to justify notice by the reviewing court and to convince the

court that of itself the error possessed a clear capacity to bring about an unjust

result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting

Jordan, 147 N.J. at 422). Defendant's failure to pose an objection to the jury

instructions "constitutes strong evidence that the error belatedly raised . . . was

actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div.

1999).

      Defendant argues that the instruction – which included the phrase, "[y]ou

should not speculate as to what the alleged victim thought or desired, or why




            the grounds therefor. Except as otherwise provided by
            [Rule] 1:7-5 and [Rule] 2:10-2 (plain error), no party
            may urge as error any portion of the charge to the jury
            or omissions therefrom unless objections are made
            thereto before the jury retires to consider its verdict, but
            opportunity shall be given to make the objection in
            open court, in the absence of the jury. A party shall only
            be prejudiced by the absence of an objection if there
            was an opportunity to object to a ruling, order or
            charge.
                                                                            A-2683-16T2
                                        27
she did not resist or protest," – "unfairly led the jury to believe that it could not

consider evidence that [A.E.] affirmatively said yes in consenting to sexual

activity with defendant." We decline to simply consider the abbreviated portion

of the charge set forth in defendant's merits brief. Our Supreme Court "has

repeatedly held that portions of a charge alleged to be erroneous cannot be dealt

with in isolation but the charge should be examined as a whole to determine its

overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "The test is to

examine the charge in its entirety, to ascertain whether it is either ambiguous

and misleading or fairly sets forth the controlling legal principles relevant to the

facts of the case." State v. Labrutto, 114 N.J. 187, 204 (1989).

       When instructing the jury on the first count, the trial court did not deviate

from the model charge. That charge, particularly the portion omitted from

defendant's merits brief, instructed the jury on how a victim may express consent

to a sexual act. The jury was not precluded from considering whether the victim

consented to sexual penetration by defendant; in fact, it was instructed to

consider whether she consented. The charge on the first count accurately set

forth the law that was applicable to the facts of this case.




                                                                             A-2683-16T2
                                        28
      Whether defense counsel made or withdrew a request for the judge to add

the definition of "mentally incapacitated," there was no rational basis to include

that instruction. The applicable statute, N.J.S.A. 2C:14-2(a)(7), provides:

                   An actor is guilty of aggravated sexual
                   assault if he commits an act of sexual
                   penetration with another person . . . whom
                   the actor knew or should have known was
                   physically helpless . . . or mentally
                   incapacitated, or had a mental disease or
                   defect which rendered the victim
                   temporarily or permanently incapable of
                   understanding the nature of his conduct,
                   including, but not limited to, being
                   incapable of providing consent.

      The indictment alleged only that defendant sexually penetrated the victim

who he knew or should have known was physically helpless. The proofs of

A.E.'s voluntary consumption of alcohol and her intoxicated state were offered

to prove that she met the definition of physically helpless: a "condition in which

a person is unconscious or is physically unable to flee or is physically unable to

communicate unwillingness to act." N.J.S.A. 2C:14-1(g). It would have been

inappropriate for defendant to face an aggravated sexual assault charge alleging

he penetrated a victim who he knew or should have known was mentally

incapacitated in that the State offered no proof that A.E. met that definition:

            "Mentally incapacitated" means that condition in which
            a person is rendered temporarily incapable of

                                                                           A-2683-16T2
                                       29
            understanding or controlling his conduct due to the
            influence of a narcotic, anesthetic, intoxicant, or other
            substance administered to that person without his prior
            knowledge or consent, or due to any other act
            committed upon that person which rendered that person
            incapable of appraising or controlling his conduct.

            [N.J.S.A. 2C:14-1(i).]

There was no evidence that A.E. ingested any substance without her knowledge

or consent, or under any situation of which she did not have knowledge and

control. Even if requested by defendant, a jury instruction on that element, of

which there was no proof, would have been improper and confusing to the jury.

      Defendant argues the trial court erred in denying his motion for a new trial

which was based on the State's failure to preserve text messages between A.E.

and defendant on the day of the consensual intercept and its failure to provide

defendant with discovery of text messages it did record.

      A.E. made two consensual-intercept calls to defendant.            When A.E.

attempted to elicit from defendant what occurred during the assault, he told her

that he would prefer to text her because he was in a car with other people and

did not "want to put all [her] business out" by talking in front of them. After the

two exchanged texts, a second call was completed. Although both calls were

recorded and turned over to defense counsel, photographs taken by police of text



                                                                           A-2683-16T2
                                       30
messages sent by defendant between the first and second calls were not. The

photographed texts read:

             "we trained you"

             "um but you ain't like tyrec you was off me and dequan"

             "me tyrec dequan"

             "I though you was up honestly bcuz you was talking 2
             me but idk they ain't think you was passed out either
             tho I think"

             "Nah I ain't do that maybe dequan or tyrec did"

             "what's sup"

      Defendant claims the Morristown Police Department and Morris County

Prosecutor's Office copied text messages from A.E.'s phone and "purposely and

inexplicably selected only portions of the text messages to preserve as evidence .

The missing unrecorded text messages by defendant may have contained

potentially exculpatory statements," and the State's bad-faith failure to preserve

that evidence violated his due process rights, citing Illinois v. Fisher, 540 U.S.

544 (2004) (per curiam) and Arizona v. Youngblood, 488 U.S. 1 (1988) (per

curiam).12


12
   In Fisher, the United States Supreme Court held that the failure to preserve
potentially useful evidence – as opposed to exculpatory evidence – which might


                                                                          A-2683-16T2
                                       31
      Defendant also contends the State's failure to provide the recorded text

messages in discovery was a Brady violation,13 inasmuch as defendant's text –

in which he told A.E. he "thought [she] was up honestly bcuz [she] was talking

2 [him,]" and that he did not think she was passed out – could have been used to

buttress his trial testimony on direct examination after the assistant prosecutor

cross-examined him on portions of his intercepted statement in which he

ostensibly admitted he thought A.E. was passed out.

      A motion for a new trial is addressed to the sound discretion of the trial

court, and we do not lightly interfere with the exercise of that discretion. State

v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). We will not reverse the

decision "unless it clearly appears that there was a miscarriage of justice under

the law." State v. Afanador, 134 N.J. 162, 178 (1993) (quoting R. 2:10-1).

      First addressing the texts defendant alleges were not preserved, the record

does not support that they were potentially useful or exculpatory. Indeed, there

is no proof of the contents of any non-preserved texts. Defendant contends only




exonerate a defendant does not violate due process unless the defendant "can
show bad faith on the part of the police." Fisher, 540 U.S. 547-48 (emphasis
omitted) (quoting Youngblood, 488 U.S. at 58).
13
   Brady v. Maryland, 373 U.S. 83 (1963) (holding the prosecution's suppression
of material, exculpatory evidence violates a defendant's due process rights).
                                                                          A-2683-16T2
                                       32
that the "missing unrecorded text messages by defendant may have contained

potentially exculpatory statements."     (emphasis added).     Further, defendant

posits only that the State's failure to preserve all of defendant's texts deprived

him of the opportunity to "enhanc[e] and rehabilitat[e] his credibility," which he

says was sullied by his use of "obscenities and detailed graphic sexually charged

language" during the second intercepted call, in contrast to his "clean, concise

and unequivocal" language in the text responses the police did record. He

continues, "it can easily be inferred" A.E. or the police "implored him via text

to tell them everything that occurred in graphic detail without regard for

niceties," and that the police prompted his use of the language used during the

second call. By failing to preserve all of the text messages, he argues, "the State

deprived defendant of the fair chance to present a complete and meaningful

defense thereby, unfairly slanting the case in their favor in violation of

defendant's constitutional rights."

      First, defendant offers no proof from which an inference can be drawn that

the language he used in the intercept was not his.        His argument that the

unpreserved texts were free from salacious language is based on a bald assertion.

Further, defendant could have made his point using the six texts that were




                                                                           A-2683-16T2
                                       33
provided, although the significance of such a ploy is of dubious materiality to

his defense.

      Nor has defendant met his burden of proving the State failed in bad faith

to preserve the texts. See State v. Mustaro, 411 N.J. Super. 91, 103 (App. Div.

2009) (holding if a defendant can show only that lost evidence was potentially

useful or exculpatory, a due process violation can be shown by "establishing that

the evidence was destroyed in bad faith"). Defendant argues there was "no

plausible reason why law enforcement preserved some, but neglected to preserve

other portions of defendant's text messages other than that it sought to deprive

defendant of their exculpatory value." Defendant neither offers nor points to

any evidence that establishes a bad faith reason why the police photographed

only six text messages. The detective who photographed those texts did not

memorialize his actions in a report. The messages were not used by the State;

the assistant prosecutor denied knowledge of them. Moreover, defendant had

knowledge of the contents of the texts he sent and received. As the trial court

found, defendant was "best equipped to indicate what they contained" and

defendant did not submit a certification regarding the contents of the

unpreserved texts.




                                                                         A-2683-16T2
                                      34
      Turning next to the State's failure to turn over the six texts, we recognize

the Due Process Clause obligates prosecutors to disclose evidence favorable to

the defense of which they have actual or constructive knowledge. State v.

Nelson, 155 N.J. 487, 498 (1998) (citing Calley v. Callaway, 519 F.2d 184, 223

(5th Cir.1975)). The obligation extends to evidence relevant to guilt or to

punishment, Brady, 373 U.S. at 87, and to evidence that can be used to impeach

the State's witnesses, United States v. Bagley, 473 U.S. 667, 676 (1985); see

also State v. Knight, 145 N.J. 233, 245-46 (1996) (discussing both types of

evidence). Where such evidence is withheld, a defendant is entitled to relief "if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different."        State v.

Marshall, 148 N.J. 89, 156 (1997) (quoting Knight, 145 N.J. at 246).            "A

'reasonable probability' is one that is 'sufficient to undermine confidence in the

outcome.'" State v. Martini, 160 N.J. 248, 269 (1999) (quoting Bagley, 473 U.S.

at 682). It is not necessary for the defendant to prove that the trial prosecutor

acted in bad faith. Brady, 373 U.S. at 87. Even when that prosecutor is ignorant

of the facts, if they are known to the police, then knowledge is imputed to the

prosecutor. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); see also Nelson,

155 N.J. at 498 (holding the Brady discovery rule applies to information of


                                                                          A-2683-16T2
                                       35
which the State is actually or constructively aware, and agreeing with the

Whitley Court's ruling that "[t]he individual prosecutor has a duty to learn of

any favorable evidence known to others acting on the government's behalf,

including the police" (quoting Whitley, 514 U.S. at 437)).

      Notwithstanding that the assistant prosecutor may not have been aware

that the photographs of the six texts were in the State's file, they were. They

should have been turned over with the other discovery to defendant's criminal -

trial counsel. But we again recognize that defendant had knowledge of his own

texts and could have supplied that information, or at least disclosed their

existence, to his trial counsel.

      We agree, nonetheless, with the trial court that disclosure and admission

of the texts would not have impacted the trial result. The trial court found the

evidence cumulative. Defendant's text about his belief that the victim was not

passed out echoed defendant's trial testimony and defense that A.E. consented

and was not physically helpless. Even if defendant established that the text was

admissible as a prior consistent statement used to rebut the assistant prosecutor's

charge of recent fabrication, see Biunno, Weissbard & Zegas, Current N.J. Rules

of Evidence, cmt. 3 on N.J.R.E. 607 (2018), defendant has not met his burden

of showing a reasonable probability that that single text would have changed the


                                                                           A-2683-16T2
                                       36
trial result, Mustaro, 411 N.J. Super. at 101. We also note that the judge gave

an adverse inference charge regarding the State's failure to preserve the text.

      We determine defendant's argument that, but for the Brady violation, he

would not have testified to be without sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(2). He offers no legal basis to justify admission of

the text if he did not testify.

      In denying defendant's new trial motion, the trial court applied the

prescriptions of Rule 3:20-1 which provides in part:

             The trial judge on defendant's motion may grant the
             defendant a new trial if required in the interest of
             justice. . . . The trial judge shall not . . . set aside the
             verdict of the jury as against the weight of the evidence
             unless, having given due regard to the opportunity of
             the jury to pass upon the credibility of the witnesses, it
             clearly and convincingly appears that there was a
             manifest denial of justice under the law.

We see no reason to disturb that ruling.

      We see no merit in defendant's argument that a new trial was required

because the verdict was against the weight of the evidence. An appellate court

will not reverse the trial court's ruling on whether a jury verdict was against the

weight of the evidence "unless it clearly appears that there was a miscarriage of

justice under the law." R. 2:10-1; Afanador, 134 N.J. at 178. We will not disturb

a jury verdict "[u]nless no reasonable jury could have reached [that] verdict

                                                                            A-2683-16T2
                                        37
. . . ." Afanador, 134 N.J. at 178; see also State v. Jackson, 211 N.J. 394, 413-

14 (2012) (noting that if "any trier of fact could rationally have found beyond a

reasonable doubt that the essential elements of the crime were present[,]" there

is no "miscarriage of justice" (quoting Afanador, 134 N.J. at 178)). The jury's

verdict on all counts could have rested on A.E.'s testimony alone if they fou nd

her credible.

      Affirmed.




                                                                         A-2683-16T2
                                      38
