                                NOT FOR PUBLICATION WITHOUT THE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-3481-15T3


STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

SEAN COURTER,

     Defendant-Appellant.
___________________________

                    Argued January 18, 2018 – Decided September 17, 2018

                    Before Judges Simonelli, Rothstadt and Gooden
                    Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 14-01-0314.

                    Charles J. Uliano argued the cause for appellant
                    (Chamlin, Rosen, Uliano & Witherington, attorneys;
                    Charles J. Uliano, of counsel and on the briefs; Andrew
                    T. Walsh, on the briefs).

                    Kayla E. Rowe, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Robert D. Laurino, Acting Essex
            County Prosecutor, attorney; Kayla E. Rowe, of
            counsel and on the brief).

PER CURIAM

      Following a jury trial, defendant Sean Courter, a former police officer,

was convicted of second-degree conspiracy to commit official misconduct,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2 (count one); second-degree official

misconduct, N.J.S.A. 2C:30-2 (count two); third-degree tampering with public

records or information, N.J.S.A. 2C:28-7(a)(2) (count three); fourth-degree

falsifying or tampering with records, N.J.S.A. 2C:21-4(a) (count four); and

fourth-degree false swearing, N.J.S.A. 2C:28-2 (count five).

      At sentencing, Judge Michael L. Ravin merged count one with count two

and sentenced Courter on count two to a five-year term of imprisonment with a

five-year period of parole ineligibility, and imposed a concurrent three-year term

on count three, and concurrent nine-month terms on counts four and five.

      On appeal, Courter raises the following contentions:

            Point I

            THE CONVICTION MUST BE OVERTURNED
            BECAUSE THE JURY VERDICT WAS AGAINST
            THE WEIGHT OF THE EVIDENCE.

            A.    STANDARD
            B.    CONSPIRACY
            C.    OFFICIAL MISCONDUCT

                                                                           A-3481-15T3
                                        2
            D.    UNDERLYING OFFENSES

            Point II

            THE CONVICTION MUST BE OVERTURNED DUE
            TO PROSECUTORIAL MISCONDUCT. (Not Raised
            Below).

            A.    APPEAL TO RACE
            B.    MISREPRESENTATION OF FACTS/LAW

            1.    ELUDING
            2.    SUFFICIENCY OF CRIMINAL CHARGES

            Point III

            THE CONVICTION MUST BE OVERTURNED
            BECAUSE THE FAILURE OF THE COURT TO
            CHARGE THE JURY AS TO THE REQUIREMENT
            TO COMPLY WITH AN OFFICER'S DIRECTION.
            (Not Raised Below).

            Point IV

            IMPROPER SENTENCE. (Not Raised Below).

We reject these contentions and affirm.

                           The Underlying Incident

      On June 7, 2012, Police Officers Sean Courter and Albert Sutterlin from

the Township of Bloomfield Police Department (BPD) responded to a home on

West Passaic Avenue on a report of a domestic violence incident between




                                                                       A-3481-15T3
                                          3
Marcus Jeter and his girlfriend, Ms. T. Killian. In his incident report, Courter

gave the following version of what happened:

            Responded to . . . West Passaic Ave. on a report of a
            Domestic. Upon arrival Officer Sutterlin and I rang the
            doorbell to the residence. While ringing the doorbell a
            black male, later identified as Mr. Marcus Jeter, stuck
            his head out the second floor window and stated, "Come
            and get me". A female, later identified as Ms. [T]
            Killian, then opened the front. While speaking with
            Ms. Killian, the girlfriend, she stated that her boyfriend,
            Mr. Jeter, just jumped out the back window. Officer
            Sutterlin and I heard an engine starting from the rear of
            the residence. A vehicle . . . came up the driveway at a
            high rate of speed. I stated to the driver, Mr. Jeter, to
            put the vehicle in park and give me his identification.
            Mr. Jeter ignored my order to put the vehicle in park
            and stated, "I did not do anything wrong". I spoke to
            Mr. Jeter through the front passenger side window,
            which was rolled down. As Mr. Jeter was speaking, I
            smelled a strong odor of an alcoholic beverage
            emanating from his breath and his eyes being
            bloodshot. In further observing the vehicle I observed
            the rear driver tire to be flat. I asked Mr. Jeter again to
            put the vehicle in park and give me his identification.
            Mr. Jeter refused and drove off at a high rate of speed,
            making a left onto West Passaic Ave. I ran to my
            vehicle and advised Central Communications and
            [Lieutenant Sean] Schwindt that I was pursuing this
            vehicle. I activated my emergency lights and sirens and
            was able to view Mr. Jeter's vehicle make a right onto
            Broad St. from West Passaic Ave. Upon reaching
            Broad St., I observed Mr. Jeter's vehicle make a right
            onto Parkway South. I was able to catch up to Mr.
            Jeter's vehicle on the Parkway South. I pulled behind
            Mr. Jeter's vehicle, who continued to drive on the
            Parkway South. At this time, I observed the driver-side

                                                                          A-3481-15T3
                                        4
rear tire to be sparking, due to that Mr. Jeter was driving
on the rim. After approximately 1,000 feet, Mr. Jeter's
vehicle became disabled, due to that the driver-side rear
rim was on its side. Mr. Jeter's vehicle came to rest at
mile marker 154.1 on the Parkway South. I exited my
vehicle with my handgun drawn on Mr. Jeter, who was
still in the vehicle with the engine running. I gave Mr.
Jeter multiple commands to shut off the vehicle and
show me his hands. Mr. Jeter refused and stated "Fuck
You, I did not do anything". Officer Sutterlin then
arrived on scene. At this time I proceeded to the drivers
side door and attempted to open it. The door was
locked. I again gave Mr. Jeter verbal commands to
open the door. Mr. Jeter refused and stated "Fuck You"
and then rolled up his driver side window. I advised
Central Communications that Mr. Jeter was refusing to
exit the vehicle. Officer Trinidad arrived on scene and
blocked Mr. Jeter's vehicle in from the front, due to that
Mr. Jeter refused to turn off his vehicle. I again gave
Mr. Jeter verbal commands to unlock the driver side
door and exit the vehicle. Mr. Jeter refused. I then used
my ASP, which is an expandable baton, to break Mr.
Jeter's driver side window. When the window was
broke, I gave Mr. Jeter verbal commands to open the
door. Mr. Jeter refused. While Officer Sutterlin and
Officer Trinidad stood by, I reached into the driver side
window and opened the door. While reaching into the
broken window, my left forearm was scraped by the
broken glass. I was able to open the door. I advised
Mr. Jeter to take off his seatbelt. Mr. Jeter refused. I
reached over Mr. Jeter and attempted to take off Mr.
Jeter's seatbelt. While attempting to take off Mr. Jeter's
seatbelt, Mr. Jeter began grabbing onto my holster in an
attempt to get my handgun. I advised Mr. Jeter multiple
times to stop resisting. Officer Trinidad, Officer
Sutterlin and I then attempted to take Mr. Jeter to the
ground, at which time Mr. Jeter struck Officer Trinidad
in the face with his fist. We were then able to take Mr.

                                                              A-3481-15T3
                            5
            Jeter to the ground. While on the ground Mr. Jeter put
            his hands underneath his body in an attempt not to be
            handcuffed. I advised Mr. Jeter multiple times to stop
            resisting and give me his hands. Officer Trinidad and I
            were able to handcuff Mr. Jeter. Mr. Jeter was then
            placed into patrol vehicle 4.

            [(Emphasis added).]

Courter also filled out a "Bloomfield Police Department DVD Discovery Form,"

which indicated that both his and Trinidad's patrol vehicles were equipped with

video cameras, the cameras were on during the incident, and the hard drives

were removed from the patrol vehicles after the incident and placed into

evidence.

      In his incident report, Sutterlin gave the following version of the incident:

            Responded to . . . West Passaic Avenue on a report of a
            [d]omestic. Upon arrival, Mr. Jeter opened an upstairs
            window and yelled: "Come and get me!" This officer
            then rang the doorbell until Ms. Killian responded. Ms.
            Killian stated that she just wanted Mr. Jeter to leave for
            the evening and that when she had gone to the door, Mr.
            Jeter jumped out the back window. Mr. Jeter was
            stopped at the end of the driveway as he was trying to
            leave. Officer Courter requested Mr. Jeter's license and
            at this time, Mr. Jeter sped off, south on West Passaic
            Avenue. Mr. Jeter turned right onto Broad Street into
            the McDonald's [p]arking lot and then onto Garden
            State Parkway South. At mile marker 154.1, Mr. Jeter
            pulled over because his left rear tire had gone flat and
            the rim had broken. Mr. Jeter was ordered out of his
            vehicle and at this time, Mr. Jeter locked all the doors
            and rolled up all windows, refusing to come out. At

                                                                            A-3481-15T3
                                        6
             this time, Lieutenant Schwindt acknowledged to use all
             necessary force to effect an arrest. At this time, the
             driver's window was broken. Mr. Jeter refused to take
             off his seat belt and while Officer Courter was reaching
             over him, Mr. Jeter attempted to gain control of Officer
             Courter's firearm. Mr. Jeter was then extricated from
             the vehicle and ordered to the ground. At this time, Mr.
             Jeter refused to submit to arrest and necessary force was
             used to effect an arrest.

             [(Emphasis added).]

                       Criminal Charges Filed Against Jeter

      On June 7, 2012, Courter signed complaint warrants against Jeter charging

him with second-degree eluding, N.J.S.A. 2C:20-2B; third-degree resisting

arrest, N.J.S.A. 2C:29-2(a)(3)(a); second-degree attempting to disarm a police

officer, N.J.S.A. 2C:12-11(a); and obstructing administration of law or other

governmental function, a disorderly persons offence, N.J.S.A. 2C:29-1(a).1

      On September 19, 2012, a grand jury indicted Jeter for second-degree

eluding, N.J.S.A. 2C:29-2(b); second-degree attempting to disarm a police

officer, N.J.S.A. 2C:12-11(a); third-degree aggravated assault on a law




1
   Courter also issued motor vehicle summonses to Jeter for driving while license
suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; refusal to submit to an
alcohol test, N.J.S.A. 39:4-50.2; driving while intoxicated, N.J.S.A. 39:4-50; failure to
comply with directions of officers, N.J.S.A. 39:4-57; driving while intoxicated 1000 feet
from a school, N.J.S.A. 39:4-50.6; and creating risk of an accident, N.J.S.A. 39:4-56.
                                                                                  A-3481-15T3
                                           7
enforcement officer acting in the performance of his duties, N.J.S.A. 2C:12 -

1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).

                       The Internal Affairs Investigation

      Prior to his indictment, on June 12, 2012, Jeter filed a complaint against

Trinidad and Courter with the Essex County Prosecutor's Office (ECPO),

alleging they physically assaulted him. Jeter asserted that the officers turned on

their police lights indicating for him to pull over, he pulled over, and "the cops

approached [his] vehicle . . . beat him up and arrested him, never informing him

why he was pulled over." He also alleged that a police vehicle crashed into the

front of his vehicle. In response to Jeter's complaint, the ECPO contacted the

BPD's Internal Affairs Division (IAD), which began an investigation.

      In an interview with Lieutenant Michael J. Cofone of the IAD, Jeter said

that he stopped his vehicle on the Garden State Parkway South after he saw the

police lights and his tire started smoking. Once he stopped, he saw police

officers on both sides of his vehicle pointing their guns at him saying "get the

fuck out of the car." As soon as he saw their weapons, he put his hands up and

complied with their instructions to turn off his vehicle. At that point, a police

vehicle (driven by Trinidad) came from Garden State Parkway North and

crashed into the front of his vehicle. After the officer on the left side of his


                                                                            A-3481-15T3
                                        8
vehicle broke his window, the officers "opened his door and punched him in the

face, he was caught off guard, the [o]fficers . . . tried to take off his seatbelt and

'elbowed [him] in the face two times.'" After the officers removed his seatbelt,

"they slammed [him] to the ground . . . handcuffed [him,] . . . patted [him] down

and put [him] in the police car." During the encounter he asked to call his

lawyer. As a result of the incident, he suffered a sprained wrist and cuts and

bruises on his left arm, right arm, wrist, chest, and face.

      Cofone obtained Courter's and Sutterlin's incident reports, the video

recording from only Courter's patrol vehicle, and radio and telephone

recordings. He consulted with Detective Andrew Zachares and was told the

video recording from Trinidad's patrol vehicle was not available.

      Cofone     instructed   Trinidad,    Courter,    and    Sutterlin   to   submit

administrative reports of the incident. In his administrative report, Trinidad

stated:

             On Thursday June 07, 2012[,] at approximately 00[:]14
             hours[,] I was in marked unit #4 patrolling in my zone.
             Officer Sutterlin and Officer Courter received a call . .
             . that there was a domestic [violence incident] in
             progress at . . . West Passaic Avenue. I was originally
             dispatched by [C]ommunications[,] then I was told to
             disregard and resume patrol in my zone. Several
             minutes     later    Officer    Courter     relayed    to
             Communications that [Jeter] . . . had fled the scene at a
             high rate of speed. . . . At this time I advised Central

                                                                               A-3481-15T3
                                          9
that I would be making my way to the scene. I activated
my emergency over head lights and sirens and began
making my way to the scene when I heard Officer
Courter's next transmission that [Jeter] . . . had gotten
onto Parkway South and [Courter] continued the
pursuit until [Jeter] finally pulled over at mile marker
154.1. I asked Central for authorization to go onto
Parkway North so that I could expedite my arrival to
assist Officer[s] Courter and . . . Sutterlin. Lieutenant
Schwindt gave the approval and I took Parkway North
to the motor vehicle stop. When I reached their
location[,] I carefully crossed the black top median
yielding to traffic. When I saw that no traffic was
coming[,] I drove across [with the] lights and sirens still
activated and parked my vehicle . . . bumper to bumper
with . . . [Jeter's] vehicle so that he would not attempt
to flee or use his vehicle as [a] weapon . . . . When I
exited my vehicle[,] I observed Officer[s] Courter and
. . . Sutterlin giving multiple commands . . . to [Jeter]
to "[e]xit the vehicle . . . ." I immediately began giving
verbal commands to . . . [Jeter] to "[e]xit the vehicle . .
. [as he was] under arrest[.]" [Jeter] . . . .refused
multiple verbal commands from Officer Courter and
myself. At this time I verbally advised . . . [Jeter] that
if he did not exit the vehicle we were going to breach
the window to effect the arrest. [Jeter] . . . ignored my
commands again stating[,] . . . "Fuck off![] I didn't do
shit man[.]" Officer Courter then attempted to open the
driver side door but the door was locked. Officer
Courter then used his asp (expandable baton) and
successfully breached the window. Multiple verbal
commands were given to . . . [Jeter] to unlock the door
and exit his vehicle, [but] he refused. Officer Courter
reached into the driver side window and opened the
door. Officer Courter ordered . . . [Jeter] to take off his
seat belt and exit the vehicle. [Jeter] . . . refused to
comply. Officer Courter reached over . . . [Jeter] to take
off his seat belt, at which time I observed . . . [Jeter]

                                                              A-3481-15T3
                           10
      grabbing Officer Courter[']s service weapon which he
      had holstered on his right hip. Officer Courter yelled[,]
      . . . "He's grabbing my gun . . . [.]" Officer Courter gave
      . . . [Jeter] multiple[] commands to let go of his gun and
      stop resisting. At that moment I was in fear for my
      partner[']s life and[] my own. Officer Sutterlin and I
      proceeded to grab . . . Jeter's hands off [of] Officer
      Courter's gun. Officer Courter was able to remove
      [Jeter's] seatbelt . . . . [When] attempting to extradite
      . . . [Jeter] from the vehicle, [Jeter] struck me in the face
      with a closed fist. After struggling with [Jeter,] we
      finally managed to take him to the ground. On the
      ground . . . [Jeter] continued flailing his arms and then
      plac[ed] his hands underneath his body. I ordered him
      to . . . [s]top resisting . . . [and g]ive me [his] hands[.]"
      And he refused. After struggling with . . . Jeter we
      finally were able to grab his hands and place him under
      arrest.

      [(Emphasis added).]

Courter's administrative report mirrored his incident report, and he added:

      I had to reach over Mr. Jeter[] to remove his seatbelt,
      but as I was reaching over Mr. Jeter began grabbing
      onto my holster attempting to remove my handgun. I
      was scared from my life. I stated he is going for my
      gun.       Officer Trinidad and Officer Sutterlin
      immediately came to my aid and restrained Mr. Jeter's
      hands from removing my handgun. Mr. Jeter continued
      to resist our efforts to arrest him. We stated multiple
      times to stop resisting. Mr. Jeter continued to flail his
      arms and body in an attempt not to be removed from the
      vehicle.

      [(Emphasis added).]



                                                                      A-3481-15T3
                                  11
      Sutterlin provided more details of the incident in his administrative report,

and added the following:

            At this time, Officer Courter stated that Mr. Jeter was
            attempting to take Officer Courter's weapon. At this
            time, this officer and Officer Trinidad reached in to
            assist Officer Courter and extricate Mr. Jeter during
            which time Mr. Jeter struck Officer Trinidad in the face.
            Mr. Jeter was ordered several times to stop resisting,
            but Mr. Jeter continued to fight with the officers. Mr.
            Jeter was brought to the ground and continued to resist
            by putting his hands underneath his body.

            [(Emphasis added).]

      Cofone found that Jeter's conduct and behavior precipitated the event, he

lacked credibility, was uncooperative, actively resisted the officers' attempt to

arrest him, attempted to grab Courter's weapon, and punched Trinidad in the

face. Cofone exonerated the officers, concluding the incident occurred, but the

officers' actions were justified, legal, and proper. On August 1, 2012, Cofone

notified Jeter that the investigation indicate[d] that the officers followed the

appropriate department policies and procedures.

      On April 3, 2013, the case was reopened after Michael Morris of the ECPO

notified Cofone of the existence of the video recording from Trinidad's patrol

vehicle, which showed a very different account of the incident than what




                                                                            A-3481-15T3
                                       12
Trinidad, Courter and Sutterlin had reported. In his investigation report, Cofone

stated:

                   Chief Goul, Sgt. Sierchio and I reviewed the
            recording; the recording provides an almost
            unobstructed view of the passenger compartment of Mr.
            Jeter's vehicle. Trinidad responds from the GSP north
            bound side, crosses the grass median and the south
            bound lanes of traffic and strikes Mr. Jeter's vehicle at
            appx. 10-12 mph, Jeter immediately raises his hands;
            Trinidad exits his vehicle and runs around the
            passenger side of Jeter's vehicle. P.O. Courter can be
            seen at the driver side of [Jeter's] vehicle striking his
            window with an object, the window appears to then
            explode, and Courter then clears the broken glass from
            the window area. Courter then leans into the passenger
            compartment and opens the driver side door. As this
            occurs Jeter's hands remain up, Courter then appears to
            grab Jeter's left hand/arm as Jeter's right arm is still
            raised and remains [raised]. Jeter then leans toward the
            passenger side and his left arm becomes free and he
            raises his left arm along with his right arm; both of his
            hands remain raised the entire time. Courter is in the
            passenger compartment of [Jeter's] vehicle. Even when
            Courter appears to grab Jeter in a bear hug both of
            [Jeter's] hands remain raised; at no time can Jeter be
            seen grabbing in any area of Courter[']s body as his
            hands remain raised at the vehicle[']s passenger
            compartment roof. At no time does either P.O. Trinidad
            or P.O. Sutterlin enter the passenger compartment;
            additionally Trinidad does not appear on camera after
            he runs from his vehicle to Jeter's [vehicle] subsequent
            to his arrival at the scene. While Courter was leaning
            in the passenger compartment Sutterlin appears at the
            passenger side window and appears to strike the
            passenger side window but it does not break, he then
            walks to the rear of Jeter's vehicle and is not seen again.

                                                                          A-3481-15T3
                                       13
            At no time does Jeter appear to punch Trinidad in the
            face.

                  Chief Goul, Sgt. Sierchio and I viewed the
            recording several more times and did not view any
            attempt by Jeter to grab Courter in any way and at no
            time can Jeter be seen punching Trinidad. At no time
            do Sutterlin and Trinidad appear in the passenger
            compartment of Jeter's vehicle. There is no struggle by
            Trinidad or Sutterlin to remove Jeter's "hands" from
            Courter's weapon. At no time during the recorded
            events of this incident does a Supervisor respond to the
            scene of Jeter's arrest.

            [(Emphasis added).]

      Cofone concluded from his review of the video that Courter lied in his two

reports by falsely reporting: Jeter grabbed his gun; Trinidad and Sutterlin came

to his aid and restrained Jeter's hands from removing the gun; Jeter flailed his

arms and body "when in reality Jeter ha[d] his hands up in a gesture of surrender

the entire time[;]" and Jeter struck Trinidad in the face with a closed fist. Cofone

noted the video showed that Jeter's hands remained up as Courter pulled him

from his vehicle, and Courter pulled him from the vehicle and threw him to the

ground in one motion.

      Cofone concluded that Trinidad lied in his administrative report about

Jeter's actions and that Jeter physically assaulted him. Cofone noted the video

showed that after Jeter was handcuffed and secured, Trinidad picked him up and


                                                                             A-3481-15T3
                                        14
threw him onto the front passenger hood of Trinidad's patrol vehicle so hard that

Jeter's feet came off the ground. The video also showed that Trinidad punched

Jeter so hard in the head that his punch careened off Jeter and struck Courter in

the face. Cofone also concluded that Sutterlin lied in his two reports that: Jeter

tried to take Courter's gun; he and Trinidad assisted Courter; Jeter punched

Trinidad in the face; and Jeter struggled.

      Following an investigation by the ECPO, all charges against Jeter were

dismissed. Specifically, the ECPO found from its review of the video recording

from Trinidad's patrol vehicle "that [Jeter's] car was not in [the] sight line [of

Courter's patrol vehicle] until shortly before [Jeter's] car was disabled and pulled

to the shoulder of the [Garden State Parkway]. Therefore it would be impossible

to impute to [Jeter] the knowledge that he was being pursued by police. For this

reason the charge of [e]luding should be dismissed."

                               The State's Evidence

      Trinidad, Courter and Sutterlin were subsequently criminally charged.

Sutterlin pled guilty to fourth-degree falsifying or tampering with records and

agreed to testify against Trinidad and Courter.

      Sutterlin testified that Trinidad and Courter were waiting for him at police

headquarters when he returned there one or two hours after the incident. He


                                                                             A-3481-15T3
                                        15
asked them what happened in order to provide a correct sequence of events, they

told him what happened and what to write, and he wrote what they said in his

report.   Courter told Sutterlin that Jeter grabbed for his gun, but Sutte rlin

admitted he did not see this or see Jeter strike Trinidad. He admitted that he

spoke to Trinidad and Courter several times about the incident before writing

his administrative report to make sure he had the correct sequence of events. He

also admitted his two reports were false, he knew they were false, he did not

write them himself, and he was aided or helped by Trinidad and Courter.

      Jeter testified that he did not elude the police, resist arrest, attempt to

disarm Courter, or hit Trinidad. The video recording from Trinidad's patrol

vehicle, which was played several times to the jury, corroborated Jeter's

testimony and showed his hands were raised in a surrender gesture, and Trinidad

assaulted him.

                                       I.

      Courter contends in Point I that the jury verdict was against the weight of

the evidence; however, he did not file a motion for a new trial on this issue.

"[T]he issue of whether a jury verdict was against the weight of the evidence

shall not be cognizable on appeal unless a motion for a new trial on that ground

was made in the trial court." R. 2:10-1. While this court need not entertain a


                                                                          A-3481-15T3
                                      16
weight of the evidence argument in the absence of a new trial motion, it may

nevertheless choose to do so in the interest of justice. State v. Smith, 262 N.J.

Super. 487, 511 (App. Div. 1993); Pressler & Veriero, Current N.J. Court Rules,

cmt. 3 on R. 2:10-1 (2018). We address this issue in the interests of justice and

for the sake of completeness.

      "In considering whether a jury verdict was against the weight of the

evidence, our task is to decide whether 'it clearly appears that there was a

miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512

(App. Div. 1993) (quoting R. 2:10-1). We "must sift through the evidence 'to

determine whether any trier of fact could rationally have found beyond a

reasonable doubt that the essential elements of the crime were present.'" Ibid.

(quoting State v. Carter, 91 N.J. 86, 96 (1982)). However, "[we] may not

overturn the verdict 'merely because [we] might have found otherwise upon the

same evidence.'" Ibid. (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App.

Div. 1985)). "[Our] intervention is warranted only to correct an 'injustice

resulting from a plain and obvious failure of the jury to perform its function.'"

Ibid. (quoting Johnson, 203 N.J. Super. at 134). "Where the jury's verdict was

grounded on its assessment of witness credibility, a reviewing court may not

intercede, absent clear evidence on the face of the record that the jury was


                                                                          A-3481-15T3
                                      17
mistaken or prejudiced." Ibid. (citing State v. Haines, 20 N.J. 438, 446-47

(1956)). Applying these standards, we discern no reason to grant Courter a new

trial.

                     Conspiracy to Commit Official Misconduct

         N.J.S.A. 2C:5-2(a) provides:

               A person is guilty of conspiracy with another person or
               persons to commit a crime if with the purpose of
               promoting or facilitating its commission he:

               (1) Agrees with such other person or persons that
               they or one or more of them will engage in conduct
               which constitutes such crime or an attempt or
               solicitation to commit such crime; or

               (2) Agrees to aid such other person or persons in the
               planning or commission of such crime or of an attempt
               or solicitation to commit such crime.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy

charge." State v. Samuels, 189 N.J. 236, 245 (2007). "It is the agreement that is

pivotal." Id. at 246.

         "A conspiracy conviction does not turn on 'doing the act, nor effecting the

purpose for which the conspiracy is formed, nor in attempting to do them, nor

in inciting others to do them, but in the forming of the scheme or agreement [.]"

State v. Ball, 141 N.J. 142, 178 (1995) (alteration in original) (quoting State v.

Carbone, 10 N.J. 329, 337 (1952)). Likewise, "mere knowledge, acquiescence,

                                                                             A-3481-15T3
                                         18
or approval of the substantive offense without an agreement to cooperate, is not

enough to establish one as a participant in a conspiracy." State v. Abrams, 256

N.J. Super. 390, 410 (App. Div. 1992). "It is the agreement that is pivotal."

Samuels, 189 N.J. at 246.

      In determining whether the scheme or agreement was formed, "[j]uries are

routinely instructed that they may draw logical inferences from the evidence

presented to them and that circumstantial evidence is of as equal weight as direct

evidence. Courts have regularly held that conspiracy may be proven through

circumstantial evidence." State v. Cagno, 211 N.J. 488, 512 (2012). However,

"[t]here must be intentional participation with the purpose of furthering the goal

of committing the crime." Cannel, New Jersey Criminal Code Annotated, cmt.

5 on N.J.S.A. 2C:5-2 (2010). Further, the essential elements of conspiracy must

be evaluated in terms of the underlying offense. Samuels, 189 N.J. at 246-47.

      Courter argues the State failed to prove the elements of conspiracy, as

there was no evidence that he and Trinidad entered into an agreement between

themselves or with Sutterlin to falsify their reports.

      Contrary to this argument, there was sufficient evidence on which the jury

could rationally have found beyond a reasonable doubt that Courter formed an

agreement with Trinidad and Sutterlin to falsify their police reports. Sutterlin


                                                                           A-3481-15T3
                                        19
testified that Courter and Trinidad were waiting for him at police headquarters

when he returned after the incident and told him what happened and what to

write in his incident report. Sutterlin also testified that he spoke with Courter

and Trinidad several times before writing his administrative report to make sure

he had the sequence of events correct. From this evidence, the jury could

reasonably infer that the officers conspired to falsify their reports in order to

exonerate Courter and Trinidad of any wrongdoing toward Jeter and substantiate

the false criminal charges brought against him.

      In addition, the three officers' reports provided sufficient circumstantial

evidence on which the jury could rationally have found beyond a reasonable

doubt that Courter conspired with Trinidad and Sutterlin to falsify their police

reports. The version of events contained in the officers' reports are strikingly

similar. They use substantially the same language in describing the events, and

they reported a substantially similar sequence of events not seen on the video

recording from Trinidad's patrol vehicle. Thus, Sutterlin's testimony, the police

reports, and the video recording from Trinidad's patrol vehicle could lead a

reasonable jury to logically infer that Courter conspired with Trinidad and

Sutterlin to falsify their reports.




                                                                          A-3481-15T3
                                      20
                             Official Misconduct

      N.J.S.A. 2C:30-2 provides, in pertinent part:

            A public servant is guilty of official misconduct when,
            with purpose to obtain a benefit for himself or another
            or to injure or to deprive another of a benefit:

            a.    He commits an act relating to his office but
            constituting an unauthorized exercise of his official
            functions, knowing that such act is unauthorized or he
            is committing such act in an unauthorized manner[.]

Courter conceded he was a public servant and that the act in question related to

his public office. Thus, the State had to prove beyond a reasonable doubt that

he committed an act relating to his office knowing it was unauthorized or

committed the act in an unauthorized manner knowing the manner was

unauthorized, and whether his purpose in so acting was to benefit himself or

another or to injure or deprive another of a benefit. See Model Jury Charges

(Criminal), "Official Misconduct (N.J.S.A. 2C:30-2)" (2006).

      "The commission of the act . . . must constitute an unauthorized exercise

of [the public servant's] official functions. The public servant must know that

the act . . . was unauthorized or that the act . . . was done in an unauthorized

manner." Ibid.

                  An act is "unauthorized" if it is committed in
            breach of some prescribed duty of the public servant’s
            office.    This duty must be official and non-

                                                                          A-3481-15T3
                                      21
            discretionary, imposed upon the public servant by law
            (such as statute, municipal charter or ordinance) or
            clearly inherent in the nature of his/her office. The duty
            to act must be so clear that the public servant is on
            notice as to the standards that he/she must meet. In
            other words, the failure to act must be more than a
            failure to exhibit good judgment. In addition, the State
            must prove that (defendant) knew of the existence of
            his/her non-discretionary duty to act prior to the
            incident in question. Not every unauthorized act
            committed by a public servant rises to the level of
            official misconduct; an unauthorized act amounts to
            official misconduct only if the public servant knew at
            the time that his/her conduct was unauthorized and
            unlawful.
            [Ibid.]

"Benefit means a gain or advantage, or anything regarded by the beneficiary as

a gain or advantage, including a pecuniary benefit or a benefit to any other

person or entity in whose welfare he/she is interested." Ibid. The benefit does

not have to be pecuniary, but could amount to enjoyment or self-gratification.

State v. Quezada, 402 N.J. Super. 277, 285 (App. Div. 2008).

      Here, there was sufficient evidence on which a reasonable jury could find

beyond a reasonable doubt that Courter committed an act relating to his office

knowing it was unauthorized or committed the act in an unauthorized manner

knowing the manner was unauthorized. The jury found him guilty beyond a

reasonable doubt of the underlying acts of tampering with public records,



                                                                         A-3481-15T3
                                       22
falsifying or tampering with records, and false swearing, all of which are

unauthorized criminal acts relating to his office.

      In addition, Courter admitted at trial he was "aware that [the BPD] has

rules and regulations that specify that, 'No employee shall falsify any official

report'?[,]" which included "to enter, or to cause to be entered any inaccurate, or

false, or improper, information." For him to argue there was no evidence he

knowingly or willfully acted in an unauthorized manner in falsifying his police

reports and the complaint warrants defies logic.

      There also was sufficient evidence on which a reasonable jury could find

beyond a reasonable doubt that Courter's purpose in committing the

unauthorized acts was to benefit himself or another or injure or deprive Jeter of

a benefit. The jury could logically infer from the evidence that Courter had the

purpose to benefit himself and Trinidad by hiding their unlawful misconduct to

protect them from forfeiture of their jobs and pensions and from potential

liability for assaulting Jeter. They were initially exonerated of assaulting Jeter

and, but for discovery of the video recording from Trinidad's patrol vehicle,

would have remained police officers while Jeter faced serious criminal charges

and a potential prison term for crimes he did not commit.

                            The Underlying Offenses


                                                                            A-3481-15T3
                                       23
      N.J.S.A. 2C:28-7(a) (tampering with public records or information),

provides in pertinent part:

            A person commits an offense [of tampering with public
            records or information] if he:

            (1) Knowingly makes a false entry in, or false
            alteration of, any record, document or thing belonging
            to, or received or kept by, the government for
            information or record, or required by law to be kept by
            others for information of the government;

            (2) Makes, presents, offers for filing, or uses any
            record, document or thing knowing it to be false, and
            with purpose that it be taken as a genuine part of
            information or records referred to in paragraph (1); or

            (3) Purposely and unlawfully destroys, conceals,
            removes, mutilates, or otherwise impairs the verity or
            availability of any such record, document or thing.

            [(Emphasis added).]

      N.J.S.A. 2C:21-4(a) (falsifying or tampering with records), provides, in

pertinent part, that "a person commits a crime of the fourth degree if he falsifies,

destroys, removes, conceals any writing or record, or utters any writing or record

knowing that it contains a false statement or information, with purpose to

deceive or injure anyone or to conceal any wrongdoing." (Emphasis added).

      N.J.S.A. 2C:28-2(a) (false swearing), provides, in pertinent part, that "[a]

person who makes a false statement under oath or equivalent affirmation, or


                                                                             A-3481-15T3
                                        24
swears or affirms the truth of such a statement previously made, when he does

not believe the statement to be true, is guilty of a crime of the fourth degree."

(Emphasis added). "To establish a defendant's guilt under N.J.S.A. 2C:28-2(a),

the State must prove that a particular statement was false and not believed by

the defendant to be true." State v. Bzura, 261 N.J. Super. 602, 610 (App. Div.

1993). To be convicted under N.J.S.A. 2C:28-2(a), "the false swearing [must

be] willful and intentional." State v. Angelo's Motor Sales, Inc., 125 N.J. Super.

200, 206 (App. Div. 1973) (holding that to be convicted under N.J.S.A. 2C:28-

2(a), "the false swearing [must be] willful and intentional"). All three crimes

required Courter to knowingly make a false statement.

      Courter argues there was no evidence he knowingly made false statements

in his reports and the complaint warrants. He posits the statements were based

on what he perceived to be a true and accurate representation of his recollection

of the events in question, and the video recording from Trinidad's patrol vehicle

did not definitively prove he did not believe what he wrote in his reports.

      Contrary to this argument, there was sufficient evidence on which a

reasonable jury could find Courter guilty beyond a reasonable doubt of all three

crimes. Sutterlin's testimony, along with all of the police reports and video

recording from Trinidad's patrol vehicle show Courter's version of events was


                                                                              A-3481-15T3
                                       25
false, but he included that version in his reports and falsely charged Jeter based

on that version.    The jury viewed the video recording several times and

apparently found it did not support Courter's claim that he believed Jeter grabbed

onto his holster in an attempt to get his handgun, and that Jeter assaulted

Trinidad and resisted arrest.

      As previously noted, Courter admitted he was aware of the BPD's rules

and regulations prohibiting employees from falsifying an official report,

including entering inaccurate, false, or improper information.       In addition,

Sutterlin testified he knew the events in his reports did not occur, but put them

in the reports because Courter and Trinidad told him what to write, which could

lead a jury to logically infer Courter also knew the reports and complaint

warrants were false.

      Moreover, the video recording from Trinidad's patrol vehicle showed Jeter

had his hands up for the entirety of the incident, except for a few seconds when

Courter and Trinidad tried to extract him from the vehicle. The video did not

show Jeter punching Trinidad in the face, reaching for Courter's holster, or

resisting arrest, which could further lead a jury to logically infer that Courter

knew his reports and complaint warrants were false, but put these facts in them




                                                                           A-3481-15T3
                                       26
nonetheless and falsely charged Jeter with several crimes and motor vehicle

offenses he did not commit.

      Furthermore, although Courter testified he did not know if it was Jeter

who grabbed his holster, he nevertheless charged him with third-degree

attempting to disarm a police officer. He admitted that if he was not sure

whether Jeter tried to grab his gun, he would have had to clarify that in his

complaint warrants, inform his superiors, and withdraw the complaints, none of

which he did. The evidence in this case was more than sufficient for the jury to

find Courter guilty of the underlying offenses beyond a reasonable doubt.

                                          II.

                                          A.

      On direct examination, Jeter referenced the high profile police brutality

cases involving Amadou Diallo, Rodney King, and Sean Bell to explain why he

did not exit his vehicle when ordered to exit and kept his hands raised. Jeter

testified:

             So, as I was saying before, I grew up in a society where,
             you know, you watch these, uh, these situations with
             police brutality – you watch the Sean Bells, the
             Amadou Diallos, the Rodney Kings, the Oscar and
             Fruitvale Stations, and . . . I can testify that I'm a victim
             of that. I can say that this is my testimony.



                                                                             A-3481-15T3
                                         27
Courter's counsel withdrew his objection to this testimony, and Judge Ravin

gave a limiting instruction that the jury could only use this testimony if it found

it was relevant to Jeter's state of mind in acting the way he acted. Counsel cross-

examined Jeter on this testimony.

      Judge Ravin later gave another limiting instruction to the jury that

"[w]hatever the three attorneys say to you in giving their summations, it's not

evidence. The evidence came from the witness stand, by testimony and anything

I admitted into evidence." Prior to summations, the judge again instructed the

attorneys to only make comments about Jeter's testimony if it went to state of

mind, to which Courter did not object. Judge Ravin then instructed the jury:

            Likewise, it's been agreed, based on Mr. Jeter's
            testimony, that, if either side wants to talk about his
            testimony concerning Rodney King, or Mr. Diallo, or
            any of those cases, that each side may comment on it
            only insofar as his testimony went to his state of mind
            at the time in question, should the jury find that that is
            material, and all parties find that his state of mind is
            material.

During summation, the prosecutor made two brief comments about Jeter's

testimony. The first was:

            But [Jeter] figures, he knows, and he told you, "I grew
            up in a society in which, this type of situation, you have
            to be very careful, because, if I make any gestures, and
            it's interpreted the wrong way, I'm going to be shot."
            That's what Marcus told you.

                                                                            A-3481-15T3
                                       28
                  And he's afraid. He's afraid for his life.

The second was: "[Jeter's] been sitting passively the whole time, and the only

reason he didn't get out of the car was because he was afraid to get shot, but his

hands have been up the whole time."

      Courter argues for the first time on appeal in Point II that his conviction

must be overturned because the prosecutor's summation comments improperly

appealed to race to justify or excuse Jeter's failure to comply with the orders of

the police.

      When a defendant raises prosecutorial misconduct for the first time on

appeal, this court need only be concerned with "whether the remarks, if

improper, substantially prejudiced the defendant['s] fundamental right to have

the jury fairly evaluate the merits of [his or her] defense, and thus had a clear

capacity to bring about an unjust result." State v. Johnson (Johnson I), 31 N.J.

489, 510 (1960). Even where a prosecutor has been guilty of misconduct,

reversal of a defendant's conviction is not necessary unless the conduct was so

egregious that it deprived the defendant of a fair trial. State v. Wakefield, 190

N.J. 397, 437 (2007). "Thus, '[t]o justify reversal, the prosecutor's conduct must

have been clearly and unmistakably improper, and must have substantially

prejudiced defendant's fundamental right to have a jury fairly evaluate the merits

                                                                           A-3481-15T3
                                       29
of his defense.'" Id. at 438 (quoting State v. Papasavvas, 163 N.J. 525, 625

(2000)). To reverse for plain error, we must determine whether there is a real

possibility the error led to an unjust result, that is, one "sufficient to raise a

reasonable doubt as to whether [it] led the jury to a result it otherwise might not

have reached." State v. Ross, 229 N.J. 389, 407 (2017) (quoting State v.

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

      "Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." State v. Frost, 158 N.J. 76, 82 (1999). If no objection is made to

the remarks, they will generally not be deemed prejudicial. Ibid. Failure to

object indicates that defense counsel did not consider the comments improper at

the time they were made, and failure to object also deprives the court of the

"opportunity to take curative action." Id. at 84.

      A prosecutor must "confine [his or her] comments to evidence revealed

during the trial and reasonable inferences to be drawn from that evidence . . .

[I]f a prosecutor's arguments are based on the facts of the case and reasonable

inferences therefrom, what is said in discussing them, 'by way of comment,

denunciation or appeal, will afford no ground for reversal.'" State v. Smith

(Smith II), 167 N.J. 158, 178 (2001) (quoting Johnson I, 31 N.J. at 510.


                                                                            A-3481-15T3
                                       30
Prosecutors are permitted to "respond to an issue or argument raised by defense

counsel." State v. Johnson (Johnson III), 287 N.J. Super. 247, 266 (App. Div.

1996).

      "Summations must be 'fair and courteous, grounded in the evidence, and

free from any "potential to cause injustice.'"      Risko v. Thompson Muller

Automotive Group, Inc., 206 N.J. 506, 522 (2011) (quoting Jackowitz v. Lang,

408 N.J. Super. 495, 505 (App. Div. 2009)). However, "[p]rosecutors are

permitted 'to make vigorous and forceful closing arguments to juries.'" State v.

Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (quoting State v.

Timmendequas, 161 N.J. 515, 587 (1999)). "Nevertheless, prosecutors must

limit their remarks to the evidence . . . and refrain from unfairly inflaming the

jury." Ibid. (citations omitted). "Where they cross the line beyond fair advocacy

and comment, and have the ability or 'capacity' to improperly influence the jury's

'ultimate decision making,' the trial judge must take action." Risko, 206 N.J. at

522 (quoting Bender v. Adelson, 187 N.J. 411, 416 (2006)).

      "In reviewing closing arguments, we look, not to isolated remarks, but to

the summation as a whole." Atwater, 400 N.J. Super. at 335. If "[t]he comments

were only a small portion of a summation which was largely devoted to a fair

review of the evidence" and if "the trial court fully instructed the jury that its


                                                                           A-3481-15T3
                                       31
verdict should be based solely on the evidence and that summations by counsel

were not to be considered as evidence[,]" then the comments would not be so

inflammatory as to deny defendant a fair trial. State v. Tirone, 64 N.J. 222, 229

(1974). To the contrary, if the comments on summation are not based on the

evidence presented at trial, the comments may constitute reversible error. See

State v. Coyle, 119 N.J. 194, 220-21 (1990).

      We discern no error, let alone plain error, in the prosecutor's summation

comments. The comments were within the parameters set by Judge Ravin and

agreed to by the parties before summations, as they went to Jeter's state of mind.

The prosecutor avoided mentioning the names of the other high profile cases or

excessively focusing on Jeter's state of mind. Looking at the summation as a

whole, the two comments were a brief five sentences within the context of a

fifty-page summation. The comments did not appeal to race or inflame the jury

and were in no way unduly prejudicial to Courter. The comments do not

constitute plain error of prosecutorial misconduct warranting reversal.

                                      B.(1)

      Courter argues for the first time on appeal that his conviction must be

overturned because on summation the prosecutor misrepresented the facts and




                                                                           A-3481-15T3
                                       32
law regarding the elements of eluding and the vehicular pursuit policy. We

disagree.

                                     Eluding

      Courter argues the prosecutor improperly led the jury to believe that Jeter

did not commit the offense of eluding and Courter was not justified in pursuing

him. He posits that Jeter committed the crime of eluding, as there was no dispute

he knew Courter was a police officer and Courter ordered him to stop his vehicle.

He also posits his pursuit was justified because he noticed alcohol on Jeter's

breath and Jeter's car had a flat tire and was in an unsafe condition to drive.

      Courter's argument lacks merit. First, this case was not about Jeter eluding

the police or the police engaging in an improper pursuit. It was about three

officers conspiring to lie in order to cover up their wrongdoing and substantiate

the false criminal charges brought against Jeter.

      Nonetheless, it was not improper for the State to argue the issues of

eluding. N.J.S.A. 2C:29-2(b) provides:

            Any person, while operating a motor vehicle on any
            street or highway in this State or any vessel . . . who
            knowingly flees or attempts to elude any police or law
            enforcement officer after having received any signal
            from such officer to bring the vehicle or vessel to a full
            stop commits a crime of the third degree; except that, a
            person is guilty of a crime of the second degree if the


                                                                            A-3481-15T3
                                       33
             flight or attempt to elude creates a risk of death or
             injury to any person[.]

"[E]luding consists simply of 'knowingly' fleeing or attempting to elude a law

enforcement officer by motor vehicle after receiving a signal to stop." State v.

Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001).

             The "attendant circumstances" of eluding under
             [N.J.S.A.] 2C:29-2b are that the defendant must "hav[e]
             received [a] signal . . . to bring the vehicle . . . to a full
             stop" and the person giving the signal must have been
             a "police or law enforcement officer." The "forbidden
             conduct" is "flee[ing] or attempt[ing] to elude." The
             material elements of eluding do not include any
             required "result" of such conduct.

             [Id. at 507 (alteration in original).]

      It also was not improper for the State to argue the vehicular pursuit policy.

The New Jersey Vehicle Pursuit Policy provides that a police officer may start

a pursuit:

             a.    When the officer reasonably believes that the
             violator has committed an offense of the first or second
             degree, or an offense enumerated in Appendix A of this
             policy, or
             b.    When a police officer reasonably believes that
             the violator poses an immediate threat to the safety of
             the public or other police officers.

             [Robert Ramsey, 25 New Jersey Practice, § 19:3 (4th
             ed. 2009).]



                                                                              A-3481-15T3
                                          34
Appendix A provides the following enumerated offenses: vehicular homicide,

N.J.S.A. 2C:11-5; aggravated assault, N.J.S.A. 2C:12-1(b); criminal restraint,

N.J.S.A. 2C:13-2; aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a);

arson, N.J.S.A. 2C:17-1(b); burglary, N.J.S.A. 2C:18-2; automobile theft,

N.J.S.A. 2C:20-2; theft by extortion, N.J.S.A. 2C:20-5; escape, N.J.S.A. 2C:29-

5; and manufacturing, distributing or dispensing of controlled dangerous

substances, N.J.S.A. 2C:35-(5)b.

      The issue of eluding was directly related to the timeline of events and the

charges brought against Courter.     One of the charges was false swearing

stemming from the criminal charges Courter brought against Jeter, including

eluding. Thus, it was necessary for the State to discuss whether there was

evidentiary support for the charges to which Courter swore. In addition, the

prosecutor did not misrepresent the elements of eluding, as the prosecutor

directly quoted the offense as stated in the complaint warrants Courter signed.

Moreover, Courter raised the argument that Jeter eluded to further his defense

that he committed no wrongdoing and properly charged Jeter with eluding. The

prosecutor's comments properly responded to this argument.

      It was not improper for the prosecutor to comment on the vehicular pursuit

policy, as it helped contextualize the timeline of events and was relevant to


                                                                          A-3481-15T3
                                      35
whether Courter charging Jeter with obstructing the administration of law or

other governmental function constituted false swearing. In addition, even if we

found it was improper to discuss eluding or the vehicular pursuit policy, it would

not constitute plain error warranting reversal.

                                      B.(2)

      Courter argues for the first time on appeal that his conviction must be

overturned because on summation the prosecutor misrepresented the facts and

law regarding the sufficiency of the criminal charges filed against Jeter. He

posits that the prosecutor made misrepresentations to the jury "that material facts

were omitted from the criminal charges filed against Jeter, thereby creating an

inference that the charges were fraudulent," which were clearly capable of

producing an unjust result.

      Rule 3:2-1(a) provides that "[t]he complaint shall be a written statement

of the essential facts constituting the offense charges made on a form approved

by the Administrative Director of the Courts[.]"         "In criminal matters, a

complaint is supposed to inform a defendant of the charges he must defend

against." State v. Salzman, 228 N.J. Super. 109, 114 (App. Div. 1987). "The

complaint must contain enough information to enable the accused to defend

himself and avoid the risk of successive prosecutions from the same


                                                                            A-3481-15T3
                                       36
transgressions." Ibid. "Due process requires that the charging instrument not

only inform a defendant respecting the nature of the charge, but it must also

inform an accused of how many charges he or she faces and when they

occurred." Ibid.

      As Courter argues, there is no requirement that all of the facts of a case

must be included in the complaint.      However, the sufficiency of the criminal

charges was at issue in this case due to the allegations of false swearing. Thus,

it was proper for the prosecutor to argue that Courter omitted pertinent facts of

the case, such as Jeter's alleged intoxication.

      However, even if we found it was improper for the prosecutor to discuss

this issue, it was only a small portion of the State's argument that would not have

changed the jury's verdict. Thus, we conclude it does not amount to reversible

error under the plain error standard, as it would not mislead a jury.

                                        III.

      In Point III, Courter contends for the first time on appeal that his

conviction must be overturned because Judge Ravin failed to charge the jury

that Jeter had an affirmative duty to comply with a police officer's direction both

at Killian's residence and on the Garden State Parkway. He posits that this

produced an unjust result because the omission of this charge lead to the


                                                                            A-3481-15T3
                                        37
compounding of the misconduct regarding the prosecutor's appeal to race, as

well as the mistaken impression that Jeter's failure to comply with the officers'

directions was justified or excused.

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

review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under that

standard, we disregard any alleged error 'unless it is of such a nature as to have

been clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).

"The mere possibility of an unjust result is not enough. To warrant reversal . . .

an error at trial must be sufficient to raise 'a reasonable doubt . . . as to whether

the error led the jury to a result it otherwise might not have reached.'" Ibid.

(alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

      It is unclear how a jury charge as to the requirement to comply with an

officer's direction would have impacted the jury's decision. Rather, it would

have confused the jury as to the law pertinent to the charges against Courter.

Courter was not charged with assault, only of tampering with records, falsifying

records, false swearing, official misconduct, and conspiracy to commit official

misconduct. Judge Ravin instructed the jury as to each of these offenses. The

judge meticulously discussed each element of each offense and explained that

the jury must find each element beyond a reasonable doubt. Thus, the judge


                                                                              A-3481-15T3
                                        38
gave the appropriate and proper jury charges relevant to this trial. See State v.

Baum, 224 N.J. 147, 158-59 (2016). The jury charge Courter requests for the

first time on appeal had no bearing on the jury's determination of the charged

offenses and did not lead to an unjust result.

                                        IV.

      In Point IV, Courter argues, and the State agrees, that his conviction on

the underlying offenses should have merged with his conviction for official

misconduct. Accordingly, we remand for resentencing to merge counts one,

three, four, and five with count two.

      Courter's conviction and sentence on count two are affirmed. This matter

is remanded for resentencing to merge counts one, three, four, and five with

count two.




                                                                          A-3481-15T3
                                        39
