                        NOT FOR PUBLICATION WITHOUT THE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-4193-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOHN F. TORNESE a/k/a JOHN
TORNESE, JR.,

        Defendant-Appellant.

_______________________________

              Submitted October 13, 2016 – Decided November 20, 2017

              Before Judges Simonelli and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,  Atlantic  County,
              Indictment Nos. 12-06-1334, 12-10-1546, and
              12-12-1137.

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

              Diane M. Ruberton, Acting Atlantic County
              Prosecutor, attorney for respondent (Brett
              Yore, Special Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

        The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
     Defendant John F. Tornese was charged in Atlantic County

Indictment No. 12-06-1334 with second-degree witness tampering,

N.J.S.A. 2C:28-5(a) (count one), and five counts of third-degree

terroristic threats, N.J.S.A. 2C:12-3(a) (counts two, three, four,

five, and six).    Defendant was also charged in two related single

count indictments from different jurisdictions, Bergen County

Indictment No. 12-10-1546 and Mercer County Indictment No. 12-12-

1137,   each   charging     defendant       with   third-degree   terroristic

threats, N.J.S.A. 2C:12-3(b).        The charges stemmed from defendant

threatening Mark Singer,1 a business associate from whom he had

purchased a pay phone business, and John Corigliano, another

business   associate    who    had   purchased      pay   phone   routes     from

defendant.     The charges also related to defendant threatening

Singer's two attorneys and an employee of one of the attorneys.

     On defendant's motion, the indictments were joined for trial,

pursuant to Rule 3:15-1(a).      Following a jury trial, defendant was

convicted on counts one, two and four of Indictment No. 12-06-1334

pertaining to Singer.       Defendant was also convicted of the lesser-

included     offense   of   harassment,       N.J.S.A.    2C:33-4,   a     petty

disorderly persons offense, on counts three, five and six of

Indictment No. 12-06-1334, as well as Indictment Nos. 12-10-1546


1
  Singer's name alternatively appears as Marc and Mark Singer at
various places in the record.

                                        2                                A-4193-14T2
and 12-12-1137 pertaining to Corigliano, Singer's two attorneys,

and the employee of one of the attorneys.

     Defendant   appeals   from   his    March   10,   2015    judgment    of

conviction arguing:

          POINT ONE

          THE PROSECUTOR'S COMMENTS DURING SUMMATION TO
          WHICH THE DEFENDANT OBJECTED WERE CLEARLY AND
          UNMISTAKABLY IMPROPER WHERE THE REMARKS
          SUBSTANTIALLY   PREJUDICED  THE   DEFENDANT'S
          FUNDAMENTAL RIGHT TO HAVE A JURY FAIRLY
          EVALUATE HIS GUILT BASED ON ONLY THE EVIDENCE
          ADMITTED.

          POINT TWO

          THE   DEFENDANT‘S   CONVICTION   OF   WITNESS
          TAMPERING SHOULD BE SET ASIDE WHERE THE STATE
          PRESENTED NO EVIDENCE THAT THE DEFENDANT WAS
          ARRESTED OR SERVED A COMPLAINT FOR CONDUCT
          AGAINST THE ALLEGED VICTIM PRIOR TO MARCH 21,
          2012.

After considering the arguments presented, in light of the record

and applicable law, we affirm.

                                        I.

     We recite the facts, taken from the record of the five-day

jury trial, during which the State produced sixteen witnesses,

eight of whom were law enforcement personnel.             Five witnesses

testified for the defense, including defendant.               Defendant, an

entrepreneur, was involved in civil litigation with Singer and

Corigliano related to contract disputes in their separate business


                                   3                                A-4193-14T2
dealings involving pay phones.            Around 2008, defendant sued Singer

and his corporation in Pennsylvania over Singer's sale of the pay

phone business to defendant.              Beginning in 2009, Charles Indyg

represented Singer's corporation in the lawsuit.                   Defendant, who

was also represented by counsel in the litigation, prevailed in

the lawsuit.         However, defendant was unable to collect on his

judgment     because    Singer's    corporation        filed     for     bankruptcy.

Darren Baldo represented Singer's corporation in the bankruptcy

proceeding     which    concluded    when     the     bankruptcy       petition      was

dismissed in October 2011.

         In 2010, defendant also sued Corigliano and his corporation

in   Pennsylvania      for   withholding      payment       on   their    pay     phone

contract. However, an arbitration clause in the contract prevented

defendant     from    litigating    the     dispute    in    court.      Corigliano

ultimately obtained a favorable arbitration decision in 2013.

However, defendant obtained a default judgment against Corigliano

in   a    defamation    lawsuit     based     on    Corigliano     informing         the

arbitrator about alleged threats defendant had made to Corigliano

and others.

         Taking matters into his own hands, through text messages and

phone calls, defendant threatened individuals connected with the

litigation, specifically Singer, Corigliano, Singer's attorneys,

Indyg and Baldo, and an employee of Indyg, Howard Beaumont.

                                          4                                     A-4193-14T2
Defendant also threatened Singer to prevent him from testifying

against him in connection with a criminal complaint Singer filed

against defendant when the threats started.               Using two prepaid

phones, defendant made the threats on September 6, 2011 and March

21, 2012.       The numbers were traced back to defendant from phone

records showing that the same numbers called his mother and the

law firms that represented him in the litigation on the same dates.

In addition, some of the witnesses recognized defendant's voice

and, during some of the calls, defendant actually identified

himself.

     As    to   the   specific   threats,   Singer,    who   was   previously

convicted of tax evasion in 1992, testified that on September 6,

2011, he received "four or five" phone calls from defendant,

threatening Singer and his family.          Singer recognized defendant's

voice from his distinctive stutter as well as from their business

dealings and the litigation.        According to Singer, defendant "was

irate and upset about the ongoing litigation in the bankruptcy

court[.]"        Defendant   threatened     to   "cut[]   [Singer's]     brake

lines[,]" and told Singer "[he] better back off the litigation,"

or otherwise "he would kill [him.]"              Because of these threats,

Singer stopped answering the phone, prompting defendant to send

Singer similar threatening text messages.             Singer was disturbed



                                      5                                A-4193-14T2
and alarmed by the threats, and filed a citizen's complaint with

the Brigantine Police Department a few days later.

     Singer testified further that, on March 21, 2012, he received

additional telephonic and text message threats from defendant.

Defendant told Singer not to "show up" to testify against him in

connection with the September 2011 citizen's complaint.     Defendant

threatened to "burn[] down [Singer's] house," and to "beat the

crap out of [you] faggots," referring to Singer and Robert Smith,

Singer's partner of twenty-seven years.   Defendant threatened to

tie up Smith and "make him watch as he cut off [Singer's] penis

and watch [Singer] bleed out[.]" Of the three text messages Singer

received from defendant on that date, the first stated "Singer,

you're a fucking . . . faggot, you're fucking dead."      The second

stated "I should kill you just because you're gay."       The third

stated "I'm going to kill you, your boyfriend and your lawyer, you

fucking    homo."            Singer     testified      he         felt

"intimidated[,]""terrified[,]" and "scared to death." He believed

that the threats could be carried out because "[y]ou see things

in the news all the time."     As a result, he went to the police

station a second time and filed another citizen's complaint.

     In addition to representing Singer in legal matters, Indyg

was a longtime friend of Singer and his business partner in

unrelated business ventures.    Indyg testified that on March 21,

                                 6                            A-4193-14T2
2012, at about 11:30 a.m., he received a text message stating

"that [he] was going to be dead" and threatened "to blow up [his]

office," "[his] house," and "[his] red pick[-]up truck[.]"                      Later

in the day, at around 1:00 p.m., Indyg received a phone call from

the same phone number reiterating the threats and "threatening to

kill [him]," "[his] [ten]-year-old daughter," and "[his] wife[.]"

Although the caller did not identify himself, Indyg recognized the

voice as defendant's from having cross-examined defendant for over

two hours in the litigation of the contract dispute.                    Indyg was

alarmed by the threats, and "felt like [he] was in danger."

       After   receiving   the   text   message       and    phone    call,     Indyg

returned to his office.          His assistant, Beaumont, informed him

that he had received a series of calls that morning that were

essentially     "hang-ups."       According      to    Beaumont,      the      caller

eventually spoke during one of the calls, identified himself as

John   Tornese,   and   indicated    that   he    was       looking   for      Indyg.

Beaumont stated the caller yelled on the phone, using "a bunch of

expletives[.]" The caller warned Beaumont about being "involved"

with Singer and Indyg, and threatened to "kill" Beaumont, "blow

up" Indyg's red truck, and "set fire to the office."                   The caller

also told Beaumont to allow his call to go through to voicemail

so that he could leave a message for Indyg.                      Accompanied by

Beaumont, Indyg went to the Egg Harbor Township Police Department

                                        7                                     A-4193-14T2
and signed a citizen's complaint against defendant.                 Although

Indyg showed the police officer the text message from defendant

on his phone while filing the complaint, Indyg accidentally lost

the text by the time of trial.

      Baldo    testified    that,   initially,   in   September     2011,    an

individual identifying himself as defendant called his office and

threatened him to stop the bankruptcy litigation involving Singer.

He told Baldo to "fuck off" or he would "kill [him]," and "burn

[his] office down."        Baldo told defendant not to threaten him and

to have his (defendant's) attorney call his office to talk about

the case.     Then, Baldo hung up the phone.       On the morning of March

21, 2012, defendant called Baldo's office again and made even

worse threats.     According to Baldo, defendant threatened "to tie

[him] up[,]" "rape [his] wife," and "stick a knife in her ass

while [he] watched."        Baldo was extremely alarmed by the threats,

particularly those directed at his wife.

      Laura Crawford, Baldo's paralegal, had transferred the call

to Baldo because the caller claimed to be referred by a friend.

After she transferred the call, Baldo put the phone on speaker and

Crawford overheard the caller identify himself as defendant and

"yell[] threats" at Baldo.          Accompanied by Crawford, Baldo went

to   the   West   Windsor    Police   Department    to   file   a   citizen's

complaint.     While en route to the police station, Baldo received

                                      8                               A-4193-14T2
additional threatening calls from defendant on his cell phone and,

while at the police station, Baldo received similar threatening

text messages.

       Corigliano testified that at about 11:00 a.m., on September

6, 2011, he received a phone call threatening his life.                     Although

the    caller      stated   he    was     "calling   for    [defendant],"    as   the

conversation continued, Corigliano recognized defendant's voice

from his distinctive stutter, particularly with "the word you,

you, you, you, you."             Defendant threatened "to kill" Corigliano

if    he   did    not   "pay     him    right    away[.]"    Shortly     thereafter,

Corigliano received a text message with a similar threat.                    Alarmed

by the threats, Corigliano filed a report with the Fort Lee Police

Department.        The officer taking the report indicated that the text

message stated "you mess with the wrong fucker, you're going to

get it."

       Corigliano testified further that at about 11:30 a.m., on

March 21, 2012, he received another threatening phone call from a

telephone number with the same area code, but a different number

than the September 6, 2011 call.                  The caller identified himself

as    John       Tornese,   and        Corigliano    recognized    the    voice     as

defendant's. About forty-five minutes later, he received a similar

threat via text message.               About an hour later, while he was having

lunch with his friend, Steve Tellini, he received a phone call on

                                             9                               A-4193-14T2
his   cell   phone   from     the    same      number   as   the   earlier     call.

Corigliano asked Tellini to answer the phone for him so that he

would have a witness.         Tellini complied and heard a man screaming

obscenities and threats.         Specifically, the caller threatened that

he was going to burn down Corigliano's house.                      Tellini drove

Corigliano to the Fort Lee Police Department to file a citizen's

complaint. The officer taking the report recorded the text message

as stating "I'm going to kill you."

      Defendant testified and acknowledged that "[he] stutter[ed]."

However, defendant denied the allegations and any connection to

the phone numbers in question.              Defendant claimed that he became

aware of the allegations in September 2011, when he received the

criminal     complaint   in    the    mail     and   consulted     his   attorney.

According to defendant, when he went to court to answer the

complaint, Baldo, Singer and Indyg "tried to bully [him]" to get

him to "drop all [his] civil charges" and threatened him with

"jail" if he did not.             Two character witnesses testified on

defendant's    behalf    about      his   reputation     for   peacefulness       and

honesty in the community.

      Defendant's motion for a judgment of acquittal, pursuant to

Rule 3:18-1, made at the close of the State's case, was denied,

as was defendant's motion for a new trial, pursuant to Rule 3:20-

1, made after the verdict was rendered.                 On February 20, 2015,

                                          10                                 A-4193-14T2
defendant was sentenced in the third-degree range, N.J.S.A. 2C:44-

1(f)(2), to a three-year term of imprisonment on count one of

Indictment No. 12-06-1334.       Counts two and four of Indictment No.

12-06-1334 were merged into count one, and fines and penalties

only were imposed for the harassment convictions.             This appeal

followed.

                                         II.

     Defendant   argues   that    the     prosecutor's   comments    during

summation were improper, and "the trial court's instruction did

not cure the prejudicial nature of the prosecutor's comments."

Specifically,    defendant   argues        the   prosecutor    improperly

"referenced the defendant's failure to obtain certain evidence

that would have likely exonerated him" and "attempted to bolster

the credibility of the two lawyers who testified on behalf of the

State."   According to defendant, "[c]oupled with the prosecutor's

comment that the defendant's character witness had nothing to say

about the facts of the case, these two clearly and unmistakably

improper remarks were fatal to the State's prosecution of the

defendant."

     While prosecutors are entitled to zealously argue the merits

of the State's case, State v. Smith, 212 N.J. 365, 403 (2012),

cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558

(2013), they occupy a special position in our system of criminal

                                    11                              A-4193-14T2
justice.      State   v.    Daniels,   182    N.J.   80,    96    (2004).         "[A]

prosecutor must refrain from improper methods that result in a

wrongful conviction, and is obligated to use legitimate means to

bring about a just conviction."             Ibid. (quoting State v. Smith,

167 N.J. 158, 177 (2001)).

    In     considering     accusations      of   improper    comments       by    the

prosecuting attorney, we examine whether defense counsel made a

timely objection, whether the prosecuting attorney withdrew the

remarks,    and   whether    the    judge    acted   promptly       and    provided

appropriate instructions.          Smith, supra, 212 N.J. at 403.            We are

also mindful that a prosecutor may vigorously rebut specific

arguments made by defense counsel.            State v. R.B., 183 N.J. 308,

329-32 (2005).

    "Our task is to consider the 'fair import' of the State's

summation in its entirety."          State v. Jackson, 211 N.J. 394, 409

(2012) (quoting State v. Wakefield, 190 N.J. 397, 457 (2007),

cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817

(2008)).      "Whether      particular      prosecutorial        efforts    can    be

tolerated as vigorous advocacy or must be condemned as misconduct

is often a difficult determination to make.                 In every instance,

the performance must be evaluated in the context of the entire

trial[.]"    State v. Negron, 355 N.J. Super. 556, 576 (App. Div.

2002).      Even if the prosecutor exceeds the bounds of proper

                                       12                                   A-4193-14T2
conduct, "[a] finding of prosecutorial misconduct does not end a

reviewing court's inquiry because, in order to justify reversal,

the misconduct must have been 'so egregious that it deprived the

defendant of a fair trial.'"             Smith, supra, 167 N.J. at 181

(quoting State v. Frost, 158 N.J. 76, 83 (1999)).           Such is not the

case here.

      Here, the challenged comments were responsive to defense

counsel's    specific   arguments   during      her   summation.     Defense

counsel zealously attacked the credibility of the two lawyers, who

testified for the State about being victimized by defendant's

threats.    The prosecuting attorney responded:

                 I want you to focus on this, though. Why
            would two lawyers risk their license if this
            is all an attempt to get [defendant]?     Why
            would they risk their careers, their license?
            What was their reward? What were they going
            to get out of it? That they all had motive.

      Defense counsel also criticized law enforcement's handling

of citizen complaints.       She referred to the testimony of Officer

Lancaster,    the   police   officer     who   processed   Indyg's   citizen

complaint and characterized such complaints as a "he said-she said

complaint."    In addition, defense counsel explicitly criticized

the   investigation     conducted        by    the    prosecutor's    office

investigator and explained that it was defendant's investigation,

rather than the State's, that resulted in the acquisition of the


                                    13                               A-4193-14T2
phone records which the State then "used . . . to build a case

against   [defendant.]"      In   response,       the   prosecuting   attorney

stated:

                 Now, there was also talk about police
            procedure in the prosecutor's office.      You
            heard testimony from my investigator about
            when she was involved in the case and what had
            already been done. Came in much later, and
            for the most part, what evidence would you
            obtain that was not already out there by the
            time our office got the file. If the voice
            mails weren't there when Lancaster or whoever
            else did the investigation on the 6th of that
            week or whenever they did it, it's 2011, they
            don't exist in 2014. The phones are out there.
            We got the phones.       This case is about
            paperwork, and you've been presented with a
            ton of it, and we all have the paperwork. Now
            mind you, the records, the phone records were
            acquired by his attorney, same attorney who
            could have expanded the search and got a full
            set of records. Why didn't they do that?

    Defense     counsel    objected    to       the   prosecuting   attorney's

comments.     She   also   objected        to   the   prosecuting   attorney's

"reference that the character witness didn't testify factually."

After a colloquy with counsel, the judge gave a strong curative

instruction, stating:

            [L]adies and gentlemen of the jury, before I
            give you my charge, I'm just going to give you
            some additional instructions on how to
            consider . . . closing statements . . . . You
            may have heard a reference by the State
            regarding defense counsel obtaining phone
            records and could have obtained additional
            phone records, I remind you now and I'll
            remind you again in my final charge that the

                                      14                               A-4193-14T2
           defense has no obligation in the case to come
           forward with any evidence, and to the extent
           that you might believe that they had some
           duty, you're to disregard those comments, and
           the defense, of course, has no obligation to
           produce or provide anything to the State.

                You heard also a reference to the
           licensing of lawyers and what that may mean
           to somebody by way of having a motive or
           otherwise, that was argument by the State.
           You may consider it for whatever purpose you
           may wish to, but there's no evidence in the
           case about lawyers and lawyer licensing and
           having any bearing on the facts in this case.

                And finally you heard some closing
           remarks regarding Mr. Ramos who testified. He
           was called by the defense as a character
           witness. He . . . was not providing factual
           information about the allegations in the case,
           and I'll give you an instruction in just a few
           minutes on how to treat character testimony
           as a special type of testimony and it has
           special rules and when you're considering Mr.
           Ramos testimony, however it was referred to
           by [the prosecuting attorney] or [defense
           counsel], you should consider his testimony
           only under the instructions that I'll give you
           in just a few minutes.

The judge reiterated the instructions in the final jury charge.

We presume the jury understood and followed those instructions.

Smith, supra, 212 N.J. at 409.

     Next, defendant argues that the jury's verdict on the witness

tampering count "was against the weight of the evidence and should

be set aside."     In ruling on defendant's new trial motion, the

judge   rejected   this   argument,   determining   that   there   was    no


                                  15                               A-4193-14T2
"manifest denial of justice[.]"      According to the judge, the

verdict was based on "credibility" assessments and "the quantum

of evidence[,]" both of which were "jury questions."       The judge

explained:

           [T]he jury had the ability to assess the
           credibility of Marc Singer in particular, to
           sift through the evidence and to decide who
           was being forthcoming. . . . [B]ased on the
           testimony . . . , it does appear that Mr.
           Singer's testimony, while it didn't flow as
           chronologically or clearly as it might have
           done, did provide the jury with enough
           evidence in which to convict based on the
           telephone call that he received that he
           believed that he was being threatened to back
           off from litigation and not to continue with
           his proceedings that involved the defendant.

     In considering whether a guilty verdict was against the weight

of the evidence produced at trial under Rule 3:20-1, "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.) (quoting R. 2:10-1), certif. denied, 134 N.J. 476

(1993).   "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)).           Our

"objective is not to second-guess the jury but to correct [an]

injustice that would result from an obvious jury error."       State

v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied,

                                16                           A-4193-14T2
151 N.J. 470 (1997) (citation omitted).      We do not evaluate the

evidence and determine anew how we might have decided the issues.

     Applying   these   standards,   we   conclude   that    the     State

presented sufficient proofs to establish beyond a reasonable doubt

that defendant was guilty of witness tampering.      To prove witness

tampering, the State was required to prove that "believing that

an official proceeding or investigation is pending or about to be

instituted[,]" defendant "knowingly engages in conduct which a

reasonable person would believe would cause a witness" to:

          (1) Testify or inform falsely;

          (2) Withhold any      testimony,    information,
          document or thing;

          (3) Elude legal process summoning          him    to
          testify or supply evidence;

          (4) Absent himself from any proceeding or
          investigation to which he has been legally
          summoned; or

          (5)   Otherwise obstruct, delay, prevent or
          impede    an    official    proceeding   or
          investigation.

          Witness tampering . . . is a crime of the
          second degree if the actor employs force or
          threat of force. Otherwise it is a crime of
          the third degree.

          [N.J.S.A. 2C:28-5(a).]

     Witness tampering "is committed only when a defendant acts

believing an official proceeding has been or is about to be


                                17                                 A-4193-14T2
instituted."   State v. D.A., 191 N.J. 158, 170 (2007).   "Although

there could be a case in which a defendant actually expresses his

belief in the pendency of official action at the time of a

tampering offense, . . . such a scenario would be unusual."     Ibid.

"Therefore, the proofs in a tampering case will ordinarily be

circumstantial[,]" and "evidence that defendant was aware of facts

that would lead a reasonable person to believe that an official

action was pending or about to be instituted" will be necessary

"to establish the requisite state of mind."    Ibid.

     "For example, if a defendant in a tampering case has been

arrested or has been served with a complaint . . . , he will

satisfy the requirement of a belief that an official proceeding

is pending because a reasonable person would hold that belief

based on the facts."    Id. at 170-71.      "The same is true if a

defendant encourages a witness, who he knows has been called to

testify . . . to elude the legal process of which he is aware,

N.J.S.A. 2C:28-5(a)(3), or absents himself from a proceeding or

investigation to which he has been summoned, N.J.S.A. 2C:28-

5(a)(4)."   D.A., supra, 191 N.J. at 171.

     Here, there was ample evidence showing that defendant was

aware of a pending official proceeding when he contacted Singer

on March 21, 2012.   Indeed, defendant admitted being aware of the

pending criminal complaint filed by Singer in September 2011, and

                                18                            A-4193-14T2
Singer testified that he construed defendant's threat not to "show

up" to refer to Singer's anticipated testimony in connection with

the September 2011 complaint.   Therefore, the trial judge properly

denied defendant's motion for a new trial and we reject defendant's

contention to the contrary.

     Affirmed.




                                19                          A-4193-14T2
