                        NOT FOR PUBLICATION WITHOUT THE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-0735-16T3



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FARARHD H. GUNTER, a/k/a
SHAMILL ABDULLAH, ANTWAN
GUNTER, FARAHD GUNTER, FARHAD
GUNTER, FARRARHD GUNTER,
HAKIM GUNTER, SAMAD GUNTER,
SAMMAD GUNTER, FARHAD GUNTHRE,
FAROD JOHNSON, FARROD JONES,
and JAMAR WILLIAMS,

     Defendant-Appellant.
______________________________

              Submitted May 1, 2018 – Decided June 22, 2018

              Before Judges Moynihan and Natali.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              14-02-0285.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen P. Hunter, Assistant
              Deputy Public Defender, of counsel and on the
              brief).
            Esther Suarez, Hudson County Prosecutor,
            attorney for respondent (Svjetlana Tesic,
            Assistant Prosecutor, on the briefs).

            Appellant filed a pro se supplemental brief.

PER CURIAM

       Defendant Fararhd H. Gunter appeals from his convictions by

jury for first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1) (count one);1 first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1

(count three); second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b) (count four); second-degree possession of

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five);

second-degree armed robbery, N.J.S.A. 2C:15-1 (count nine); and

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count

ten), contending:

            POINT I

            THE   STATEMENT    OF   CO-DEFENDANT   HARRIS
            INCULPATING DEFENDANT WAS NOT IN FURTHERANCE
            OF THE CONSPIRACY AND SHOULD HAVE BEEN
            EXCLUDED ON DEFENSE COUNSEL'S OBJECTION. THE
            IMPROPER ADMISSION OF THIS BRUTON[2]-TYPE
            EVIDENCE DENIED DEFENDANT A FAIR TRIAL AND
            REQUIRES REVERSAL.



1
  The jury found defendant not guilty of murder – the indicted
charge – but found him guilty of the lesser-included charge of
aggravated manslaughter.
2
    Bruton v. United States, 391 U.S. 123 (1968).

                                  2                         A-0735-16T3
         POINT II

         WHILE THE DENIAL OF THE DEFENSE MOTION FOR
         SEVERANCE WAS REASONABLE, A SPECIFIC CHARGE
         TO THE JURY ON PROPENSITY, AS THE TRIAL COURT
         INITIALLY   STATED   WOULD  BE   GIVEN,   WAS
         NECESSARY.   WHEN THE TRIAL COURT FAILED TO
         GIVE ANY SUCH INSTRUCTION, THE DEFENDANT WAS
         DENIED DUE PROCESS AND A FAIR TRIAL.

         POINT III

         IT IS CRUEL AND UNUSUAL PUNISHMENT THAT A
         FELONY MURDER CONVICTION LEADS TO A GREATER
         SENTENCE THAN AGGRAVATED MANSLAUGHTER BECAUSE
         IT IS GROSSLY DISPROPORTIONATE AND IT SERVES
         NO LEGITIMATE PENOLOGICAL OBJECTIVE TO PUNISH
         A NEGLIGENT HOMICIDE MORE SEVERELY THAN A
         RECKLESS HOMICIDE.

         POINT IV

         THE SENTENCE WAS EXCESSIVE.

In his pro se brief, he adds:

         POINT I

         DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE
         HE WAS DENIED RIGHT TO CONFRONTATION WHEN THE
         STATE'S MAIN WITNESS GAVE A TESTIMONIAL
         STATEMENT AGAINST DEFENDANT MADE BY A NON-
         TESTIFYING CO-DEFENDANT IN VIOLATION OF THE
         SIXTH   AMENDMENT   TO  THE   UNITED   STATES
         CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF
         THE NEW JERSEY CONSTITUTION OF 1947.

         POINT II

         DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO
         THE STATE['S] USE OF IMPERMISSIBLY SUGGESTIVE
         OUT-OF-COURT IDENTIFICATION PROCEDURES ON THE
         LONE EYEWITNESS IN VIOLATION IN VIOLATION OF
         THE PROCEDURES SET FOR IN STATE V. HENDERSON,


                                3                        A-0735-16T3
           208 N.J. 208 (2011); THE U.S. CONSTITUTION AND
           THE N.J. CONSTITUTION.

     Two incidents in Jersey City during the evening of May 17,

2013, form the basis for the charges — indicted and tried together

— against defendant and codefendants Shawn Harris and Janice

Everett.   In the earlier incident, a twelve-year-old boy was shot

and killed and his father suffered a gunshot wound to his leg

during a robbery.     Later that evening, a victim was shot after he

followed and yelled at two men who had just robbed him and another

victim at gunpoint as the victims sat in a car.

                                   I

     Defendant challenges the admission of Harris's statement,

related by Everett.    During her trial testimony, Everett testified

that prior to the robberies, Harris – who was driving her car –

picked her up from her workplace.      Later that afternoon, they met

defendant, who she knew as "Slim," and the codefendants drove to

Jersey City.   Harris told Everett they were "going to take a run,"

which, based on Harris's prior explanation of the phrase, informed

her they were going to "rob somebody."

     Everett   said   she   remained   in   the   car   while   Harris   and

defendant committed the first robbery.       When the two men reentered

the car Harris said, "This idiot back here [meaning the rear-

seated defendant] did something stupid."


                                   4                                A-0735-16T3
       Defense counsel lodged a hearsay objection just prior to the

State's elicitation of Harris's statement.3                  When, at sidebar, the

State    argued     the       statement    was       admissible      as   that     of    a

coconspirator, defense counsel countered, "I don't think we even

get to that Judge, it certainly is more prejudicial than -- I

agree    with   [the      assistant       prosecutor]       that     [Harris]      is    a

coconspirator,      I    have    no   argument."          Notwithstanding        defense

counsel's seeming concession that the statement was admissible

under N.J.R.E. 803(b)(5),4 the judge recalled Everett's testimony

at the N.J.R.E. 104(c) hearing regarding the admissibility of

defendant's statements, and ruled

            [Everett] was there, . . . she knew it was
            going to be a robbery. This was an ongoing
            conspiracy, the statement was made it appears
            to be immediately after and during the
            f[l]ight from. And what I also understand is
            going to be . . . before another robbery
            occurs. So I find that the statement is made
            during the ongoing course of the conspiracy.

       Defendant,       for    the    first       time,   advances    that   Harris's

statement was inadmissible because it was not made in furtherance

of the conspiracy.        Our usual standard of review requires that we


3
    Harris did not testify.
4
  N.J.R.E. 803(b)(5) provides that the hearsay rule does not
exclude "[a] statement offered against a party which is . . . a
statement made at the time the party and the declarant were
participating in a plan to commit a crime or civil wrong and the
statement was made in furtherance of that plan."

                                              5                                  A-0735-16T3
grant    substantial    deference      to    the   trial   court's   evidentiary

rulings, State v. Morton, 155 N.J. 383, 453 (1998); State v.

McDougald, 120 N.J. 523, 577-78 (1990), and will reverse a trial

court's evidentiary rulings only where there is an abuse of

discretion, State v. Nelson, 173 N.J. 417, 470 (2002); State v.

Feaster, 156 N.J. 1, 82 (1998).             If in response to objection the

trial court did not analyze evidence under the applicable rules

of admissibility, our standard of review is plenary.                   See State

v. Lykes, 192 N.J. 519 (2007).              Where defendant failed to object

at trial and raises an evidentiary issue for the first time on

appeal, we apply the plain error standard of review.                 See R. 2:10-

2; State v. Hunt, 115 N.J. 330, 363 (1989); State v. Macon, 57

N.J. 325, 337-38 (1971).

     Requisite to admission as a coconspirator's statement under

N.J.R.E. 803(b)(5), is the State's proof that "(1) the statement

was 'made in furtherance of the conspiracy'; (2) the statement was

'made during the course of the conspiracy'; and (3) there is

'evidence, independent of the hearsay, of the existence of the

conspiracy and [the] defendant's relationship to it.'" State v.

Cagno,    211   N.J.   488,   529-30    (2012)     (alteration   in    original)




                                        6                                 A-0735-16T3
(quoting State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div.

1997)).5

     It is longstanding hornbook law that "where it appears that

two or more persons have conspired to commit an offense, everything

said, done, or written by one of them during the existence of the

conspiracy, and in the execution or furtherance of the common

purpose, is admissible in evidence against the others."           16 C.J.

§ 1283 (1918) (footnotes omitted); see State v. Seidman, 107 N.J.L.

204, 206-07 (Sup. Ct. 1931), aff'd sub nom., State v. Fischman,

108 N.J.L. 550 (E. & A. 1931).            Although post-conspiratorial

statements   are   not   admissible   against   a   defendant,   State   v.

Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991), a conspiracy

may extend beyond the actual commission of a crime when the

conspirators make statements to enlist false alibi witnesses,

conceal weapons, or flee to avoid apprehension, State v. Savage,

172 N.J. 374, 403 (2002).     Even statements relating to past events

that "serve some current purpose, such as to promote cohesiveness,

provide reassurance to a co-conspirator, or prompt one not a member

of the conspiracy to respond in a way that furthers the goals of




5
 The trial judge's brief sidebar ruling addressed only the second
of the three factors. Defendant argues only that the first factor
was not established.

                                      7                           A-0735-16T3
the conspiracy" may be deemed to be in furtherance of a conspiracy.

Taccetta, 301 N.J. Super. at 253.

       The   record      supports    that       Harris's    statement      to    Everett

related to the ongoing crime.              Harris and defendant fled from the

murder-robbery scene directly to Everett's car.                        There Everett –

knowing the men were going to commit a robbery — waited in the

driver's seat.           Startled when the men entered the vehicle, she

noted Harris was "shaking and sweating and he looked angry." After

Harris told Everett that defendant "did something stupid," Everett

"panicked and . . . asked what happened."                       Defendant then said,

"I    shot   'em."        Everett   smelled       gunpowder      and    turned    toward

defendant and saw a gun in his lap.                  Defendant then said, "They

wouldn't give it up"; and "he'll live."                   Harris then told Everett

to drive.         When she stopped at a light, Harris made her move to

the rear seat, and he drove.6

       Harris's      statement      was    part    of     the    post-murder-robbery

events.      The recount by Harris and defendant brought Everett up

to speed on what transpired, including defendant's fatal actions,

and   led    to    her   driving    them    from    the    scene,      furthering     the



6
  The same course was followed after the second robbery when
Everett drove the men from the scene for a short distance; she
then switched seats and Harris drove.



                                            8                                    A-0735-16T3
conspiracy by avoiding detection or apprehension.7              See Hunt, 115

N.J.   at   342,   367     (holding    co-conspirator's   statement    to     his

girlfriend    that       the   defendant     killed   someone   was   made     in

furtherance of and during the course of the conspiracy because the

co-conspirator sought his girlfriend's "help in disposing of the

evidence of the murder").

       We reject defendant's contention that Harris's statement was

akin   to   the    "idle    chatter"    deemed   inadmissible   in    State    v.

Farthing, 331 N.J. Super. 58, 84 (App. Div. 2000).              The statement

in issue was not made to someone unrelated to the crime, and it

was not an after-the-fact narration, but part of the conversation

among the participants during flight from the crime.

       We find no error in the admission of Harris's statement

pursuant to N.J.R.E. 803(b)(5).8              In light of our holding, we

determine that defendant's arguments in Point I of his pro se




7
 Although the trial judge mentioned the second robbery during his
ruling, we see no evidence that the second robbery had been
discussed or planned; and certainly no evidence that Harris's
statement furthered that robbery.
8
  Even if the challenged testimony was erroneously admitted, the
error was harmless, see Macon, 57 N.J. at 337-38; R. 2:10-2, in
light of statements made by defendant.      Harris's statement did
not, as did defendant's, indicate what defendant did. Defendant's
admissions abated any prejudice caused by the admission of Harris's
statement.

                                         9                              A-0735-16T3
brief are without sufficient merit to warrant discussion in a

written opinion.      R. 2:11-3(e)(2).

                                      II

       Defendant    concedes   the   trial    court     correctly   denied   his

motion for relief from the joinder of both incidents, but contends

he was denied a fair trial because the court failed to give a

"propensity" jury instruction, one that was never requested by

defense counsel.      There is no merit to his contention.

       We review errors in a jury instruction not raised at the time

of   trial    for   "legal   impropriety     in   the   charge   prejudicially

affecting the substantial rights of the defendant and sufficiently

grievous to justify notice by the reviewing court and to convince

the court that of itself the error possessed a clear capacity to

bring about an unjust result."         State v. Hock, 54 N.J. 526, 538

(1969).      Plain error is reversible if it is "clearly capable of

producing an unjust result."          R. 2:10-2; see Hunt, 115 N.J. at

363.

       In determining the severance motion, the trial court analyzed

"whether the evidence from one offense would have been admissible

N.J.R.E. 404(b)[9] evidence in the trial of the other offense,


9
  The four factors considered in determining admissibility under
N.J.R.E. 404(b) are:



                                     10                                A-0735-16T3
because '[i]f the evidence would be admissible at both trials,

then . . . a defendant will not suffer any more prejudice in a

joint trial than he would in separate trials.'" State v. Sterling,

215 N.J. 65, 98 (2013) (second and third alterations in original)

(quoting State v. Chenique-Puey, 145 N.J. 334, 341 (1996)).        It

is true that admission of evidence pursuant to N.J.R.E. 404(b)

requires that a jury instruction be given by the trial court to

"explain precisely the permitted and prohibited purposes of the

evidence, with sufficient reference to the factual context of the

case to enable the jury to comprehend and appreciate the fine

distinction to which it is required to adhere."   State v. Cofield,

127 N.J. 328, 341 (1992) (quoting State v. Stevens, 115 N.J. 289,

304 (1989)).   But defendant conflates the court's consideration

of the Cofield factors used in determining the severance motion

with the necessity for a jury instruction once other-crime evidence



          1. The evidence of the other crime must be
          admissible as relevant to a material issue;

          2. It must be similar in kind and reasonably
          close in time to the offense charged;

          3. The evidence of the other crime must be
          clear and convincing; and

          4. The probative value of the evidence must
          not be outweighed by its apparent prejudice.

          [State v. Cofield, 127 N.J. 328, 338 (1992)].

                               11                           A-0735-16T3
is admitted after an analysis under the same factors.                  Although

the judge applied the Cofield test in determining the severance

issue, evidence was not admitted under N.J.R.E. 404(b).                          No

limiting instruction was therefore required.

                                     III

     Defendant raises for the first time that "[i]t is cruel and

unusual punishment that a felony murder conviction leads to a

greater    sentence    than    aggravated   manslaughter       because     it    is

grossly disproportionate and it serves no legitimate penological

objective to punish a negligent homicide more severely than a

reckless homicide."       We determine defendant's comparison of the

sentence for felony murder to that for a "negligent homicide" to

be without sufficient merit to warrant discussion in a written

opinion.     R. 2:11-3(e)(2).     We add only the following comments.

     New Jersey's Criminal Code does not recognize "negligent

homicide."10        Further,   defendant    did    not   commit   a   negligent

homicide.      The jury convicted him of aggravated manslaughter so

it   found     he    recklessly   caused     the    victim's      death     under

circumstances manifesting extreme indifference to human life.

N.J.S.A. 2C:11-4(a).


10
  N.J.S.A. 2C:11-2(a) provides "[a] person is guilty of criminal
homicide if he purposely, knowingly, recklessly or" by driving a
vehicle or vessel recklessly, causes a homicide.    See N.J.S.A.
2C:11-5.

                                     12                                   A-0735-16T3
     Moreover,    defendant   is    mixing   apples   and   oranges    in

attempting to compare a sentence for aggravated manslaughter to a

sentence for murder.      "Felony murder is an absolute-liability

crime because the actor need not have contemplated or consciously

risked the victim's death."        State v. McClain, 263 N.J. Super.

488, 491-92 (App. Div. 1993) (citing State v. Martin, 119 N.J. 2,

20 (1990)).      The State need only prove the defendant's mental

state for the underlying felony set forth in N.J.S.A. 2C:11-

3(a)(3), State v. Darby, 200 N.J. Super. 327, 330-32 (App. Div.

1984); not the defendant's mental state for the homicide – which

the Legislature deemed a murder, not a manslaughter.

     We have previously held the mandated imposition of a minimum

period of thirty years parole ineligibility for felony murder

violates neither the Federal nor New Jersey constitutions,        State

v. Johnson, 206 N.J. Super. 341, 349 (App. Div. 1985), holding:

               It is firmly settled that the broad power
          to declare what shall constitute criminal
          conduct and to fix both the maximum and
          minimum terms of imprisonment for such conduct
          has been committed by the people of this State
          to the legislative, rather than to the
          judicial branch of government. State v.
          Hampton, 61 N.J. 250, 273 (1972). See also
          State v. Smith, 58 N.J. 202, 211 (1971). The
          fact that our Legislature has provided a more
          severe punishment for criminal acts than the
          courts approve is no grounds for judicial
          interference, unless a constitutional or other
          prohibition against such punishment has been
          violated. In making this determination, our

                                   13                           A-0735-16T3
            Supreme Court in State v. Hampton, expressed
            the view that "courts consider whether the
            nature of the criticized punishment is such
            as to shock the general conscience and to
            violate principles of fundamental fairness;
            whether comparison shows the punishment to be
            grossly disproportionate to the offense, and
            whether the punishment goes beyond what is
            necessary to accomplish any legitimate penal
            aim." 61 N.J. at 273-[]74. Thus, "[a]bsent
            such a showing[,] the judiciary must respect
            the legislative will." Id. at 274.

            [Johnson, 206 N.J. Super.       at   343   (second
            alteration in original).]

Defendant has made no such showing.

                                    IV

    Defendant asserts his life sentence for felony murder is

excessive   because   the   judge   improperly   focused   "on   generally

deterring society's ills by sending a message that the [c]ourt

will not tolerate these kinds of crimes, as opposed to a specific

deterrence of defendant," and "found that defendant's lack of

remorse was a significant factor."       We are unpersuaded.

    Contrary    to    defendant's   one-sided    interpretation    of   the

sentencing judge's remarks, the record shows the judge addressed

both of the "two 'interrelated but distinguishable concepts,'

[incorporated in deterrence under N.J.S.A. 2C:44-1(a)(9)], the

sentence's 'general deterrent effect on the public [and] its

personal deterrent effect on the defendant.'"          State v. Fuentes,

217 N.J. 57, 79 (2014) (second alteration in original) (quoting

                                    14                             A-0735-16T3
State v. Jarbath, 114 N.J. 394, 405 (1989)).         As acknowledged by

defendant in his merits brief, the judge observed

           there's truly something wrong with our society
           when a father can't stand on the street and
           throw a ball back and forth with his son and
           hang out with his friends. There's something
           wrong with our society when a couple guys
           can't hang out with their friends on the
           street corner on a nice evening without being
           victimized.

He harkened to those comments when, in finding that the need to

deter defendant was "overwhelming in this case," he said: "Because

something is wrong when somebody like you can go out and victimize

innocent people that are standing out doing absolutely nothing

wrong." The judge pointed to the criminal acts defendant committed

in both incidents, thereby addressing a specific need to deter in

addition   to   the   general   need    that   defendant   concedes   was

established.

     And contrary to defendant's contention, the judge's comments

on defendant's remorse did not address aggravating factors; rather

he – as was required — addressed defense counsel's advancement of

remorse as a mitigating factor.        See State v. Blackmon, 202 N.J.

283, 297 (2010) ("[M]itigating factors that are suggested in the

record, or are called to the court's attention, ordinarily should

be considered and either embraced or rejected on the record.").




                                  15                             A-0735-16T3
                                         V

       Defendant in his pro se brief argues for a new trial because

the    State    introduced    at   trial      what   he    now   claims   was    an

impermissibly suggestive out-of-court identification by Curtis

Small who selected defendant's photograph from a six-photo array

which "had pictures that were of poor quality, so much so that

Small could not tell the accurate skin complexion of the subject."

Defendant contends the "[t]rial [c]ourt was mandated to conduct a

Wade[11]   hearing"   to     determine       the   admissibility     of   Small's

identification.

       Defendant    never    pursued     a    motion      to   suppress   Small's

identification.       Although there is mention in the record that

defendant filed a pro se motion to suppress,12 and defense counsel

advised the court at the pretrial conference13 that he would file

such a motion and accompanying brief, we do not see that one was

filed despite the judge's scheduling order for briefs and oral

argument.      As such, we decline to consider this issue that was not

presented to the trial court.          State v. Robinson, 200 N.J. 1, 19

(2009).


11
     United States v. Wade, 388 U.S. 218 (1967).
12
  The record on appeal contains neither a copy of the pro se motion
nor the array shown to Small.
13
     R. 3:9-1(f).

                                       16                                 A-0735-16T3
Affirmed.




            17   A-0735-16T3
