                                 NOT FOR PUBLICATION WITHOUT THE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 o ther cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0358-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EUGENE R. CADY,

     Defendant-Appellant.
______________________________

                    Argued January 14, 2020 – Decided February 12, 2020

                    Before Judges Hoffman, Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 13-06-0597.

                    Alan Dexter Bowman argued the cause for appellant.

                    Michele C. Buckley, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Lyndsay V. Ruotolo, Acting Union
                    County Prosecutor, attorney; Frank L. Valdinoto,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Eugene Cady was tried before a jury and found guilty of first -

degree murder and other offenses, as charged in a Union County indictment.

Defendant appeals from the judgment of conviction entered by the trial court.

We affirm.

                                       I.

      In Indictment No. 13-06-0597, defendant was charged with the first-

degree murder of Kason Wilson, N.J.S.A. 2C:11-3(a)(1) and (2) (count one);

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count

two); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count three).

      The indictment stems from a shooting. On August 21, 2011, Officer

James Edgar of the Linden Police Department responded to the 900 block of

Union Street in Linden at approximately 10:50 p.m., after receiving a call of

possible gunshots. Upon arrival, Edgar observed a man dead in the street with

three bullet wounds. He recognized the man from the community as Kason

Wilson. Edgar also observed three spent shell casings, a spent projectile, and a

small amount of brain matter near the man's body in the street.

      We derive our facts from the testimony presented at trial. Earlier in the

night following a birthday party in Linden, defendant, a member of the Rollin


                                                                        A-0358-17T4
                                       2
30's Crips gang, took a nine-millimeter handgun from a closet in the apartment

where the party was held. He walked up to the victim on Union Street, shook

his hand, and asked, "[y]ou remember me?" before pulling out a gun and

shooting him three times—once in the chest and, as the victim fell to the ground,

twice in the back of the head.

       After the shooting, defendant and an individual known as Loco, a Crips

gang member and a subordinate of defendant, returned to the apartment.

Defendant told several individuals at the apartment that he walked up to the

victim on Union Street, and shook his hand, before stating, "[y]ou remember

me?"

       Following the incident, Dyanne Simons spoke to defendant in the

apartment.    She told defendant Wilson was killed around the corner, and

defendant answered, "[y]eah, I know. I did that." Another Rollin 30's Crips

member, Anthony Pearson, attended the birthday party. After defendant and

Loco left the apartment, Pearson heard two gunshots. Ultimately, defendant was

arrested on September 5, 2011.

       At trial, the State called Lieutenant Michael Sanford, a ballistics expert,

to testify. Sanford performed a "bullet identification" analysis and opined that

the bullet projectiles recovered next to Wilson's body correlated to a homicide


                                                                          A-0358-17T4
                                        3
in Elizabeth and came from the same gun. Defense counsel objected to Sanford's

testimony and requested a cautionary instruction to the jury regarding evidence

related to the firearm. The trial court provided a cautionary instruction to the

jury, which was not objected to by defense counsel. The clarifying instruction

stated:

            The witness testified that the firearm, he believes, was
            utilized in a prior homicide in Elizabeth, New Jersey.
            Mr. Cady is not being charged with that homicide. You
            are not to consider that aspect of the testimony in any
            regard as to the charges at issue in this case. The fact,
            that is the asserted fact that the firearm may have been
            utilized in a separate homicide, may be testified to in
            more proper context through additional witnesses, but I
            want you to know now there's no allegation and there
            will be no proofs offered in this case that Mr. Cady
            utilized that firearm in the Elizabeth homicide.

      Sergeant Gary Webb, who was employed by the Union County

Prosecutor's Office, was assigned to the Guns, Gangs, Drugs, and Violent

Crimes Task Force. Webb testified about the Rollin 30's Crips and the G -Shine

Bloods' gang activity, organization, and hierarchy. He confirmed defendant was

a member of the Rollin 30's Crips, and the victim "was believed to be the

highest-ranking G-Shine Blood on the street in Linden."

      The State also subpoenaed Milad Shenouda, a member of the Rollin 60's

Crips, to testify. In August of 2012, Shenouda and defendant shared a p rison


                                                                        A-0358-17T4
                                       4
cell at the Union County jail. Shenouda knew defendant as "Lil-490." Shenouda

testified that defendant informed him that he was a member of the Rollin 30's

Crips, and that he murdered Kason Wilson, a "G-Shine Blood," near the tracks

in Linden.

       Following a sixteen-day trial, a jury found defendant guilty on all counts.

The trial judge sentenced defendant to forty-two years of imprisonment subject

to a mandatory eighty-five percent period of parole ineligibility under the No

Early Release Act (NERA), N.J.S.A. 2C:43.7.2, for the murder conviction, and

to concurrent seven-year terms with forty-two months of parole ineligibility for

the weapons offenses.

       After the trial court sentenced defendant, he filed this appeal. 1 He presents

the following arguments for consideration:

             POINT I.

             THE TRIAL COURT ERRED IN ADMITTING AN
             UNRELIABLE EXPERT OPINION THAT THE
             THREE PROJECTILES RECOVERED HEREIN
             WERE FIRED FROM THE SAME WEAPON USED
             IN A PRIOR HOMICIDE IN ELIZABETH.

             a.     INTRODUCTION.

                    1.    THE INADMISSIBLE EVIDENCE.


1
    On October 11, 2017, defendant filed an amended notice of appeal.
                                                                             A-0358-17T4
                                          5
     2.      THE LACK OF FOUNDATION.

b.   THE "SAME GUN" EVIDENCE SHOULD
     HAVE BEEN EXCLUDED.

     1.      THE   UNRELIABLE     EXPERT
             EVIDENCE.

     2.      THE LAW AS TO RELEVANT
             EVIDENCE.

POINT II.

THE STATE'S PROFILING AND CONCOMITANT
ACCUSAL OF A BLACK FEMALE JUROR AS
HAVING IMPROPER CONTACT WITH ANOTHER
PERSON OUTSIDE THE COURTHOUSE DENIED
APPELLANT A FAIR TRIAL.

a.   PERTINENT FACTS.

b.   THE STATE'S UNEXPLAINED PROFILING
     OF JUROR [NUMBER SEVEN] VIOLATED
     DUE PROCESS AND RENDERED THE TRIAL
     UNFAIR.

     i.      BATSON v. KENTUCKY

     ii.     THE VERDICT SHOULD BE SET
             ASIDE   OR    A  REMAND
             ORDERED.

POINT III.

THE COURT ERRED IN PERMITTING THE VIDEO
OF THE INSIDE OF THE COUNTY JAIL TO BE
SHOWN TO THE JURORS.


                                           A-0358-17T4
                       6
            POINT IV.

            THE    PROSECUTOR'S COMMENTS   IN
            SUMMATION DENIED APPELLANT A FAIR
            TRIAL.

            a.    THE COMMENTS.

            b.    APPELLANT WAS DENIED A FAIR TRIAL.

            POINT V.

            THE COURT ERRED AS TO THE SCOPE OF THE
            GANG EVIDENCE WHICH IT ADMITTED.

      We reject these contentions and affirm.

                                       II.

      Defendant argues that the trial court abused its discretion by allowing

Sanford to testify concerning the bullet projectiles recovered in this case and

their correlation to a homicide in Elizabeth. Defendant further contends that

Sanford's expert opinion was unreliable, and "did not have a sufficient scientific

basis to produce uniform and reasonably reliable results to contribute materially

to the ascertainment of the truth[,]" citing State v. Torres, 183 N.J. 554, 568

(2005).

      When reviewing the admission or exclusion of evidence, we afford

"[c]onsiderable latitude" to a trial judge's determination, examining "the

decision for abuse of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015)

                                                                          A-0358-17T4
                                        7
(alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998); see also

State v. Jenewicz, 193 N.J. 440, 456 (2008) (stating "the abuse-of-discretion

standard" is applied "to a trial court's evidentiary rulings under Rule 702")).

Importantly, "[u]nder th[is] standard, an appellate court should not substitute its

own judgment for that of the trial court, unless 'the trial court's ruling was so

wide of the mark that a manifest denial of justice resulted.'" Kuropchak, 221

N.J. at 385-86 (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

      Expert testimony is admissible if it meets three criteria:

            (1) the intended testimony must concern a subject
            matter that is beyond the ken of the average juror;

            (2) the field testified to must be at a state of the art such
            that an expert's testimony could be sufficiently reliable;
            and

            (3) the witness must have sufficient expertise to offer
            the intended testimony.

            [State v. Henderson, 208 N.J. 208, 297 (2011) (quoting
            Jenewicz, 193 N.J. at 454).]

      When considering proffered expert testimony, the trial court exercises

discretion in determining "[t]he necessity for, or propriety of, the admission of

expert testimony, and the competence of such testimony . . . ." State v. Zola,

112 N.J. 384, 414 (1988). "The qualifications of an expert and the admissibility

of opinion or similar expert testimony are matters left to the discretion of the

                                                                            A-0358-17T4
                                         8
trial court." State v. McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011) (citing

Torres, 183 N.J. at 572; State v. Summers, 176 N.J. 306, 312 (2003)). "The

party offering the evidence has the burden of proof to establish its admissibility."

Torres, 183 N.J. at 567.

            The proponent of expert testimony must demonstrate
            that it would "enhance the knowledge and
            understanding of lay jurors with respect to other
            testimony of a special nature normally outside of the
            usual lay sphere." State v. Kelly, 97 N.J. 178, 209
            (1984) (quoting State v. Griffin, 120 N.J. Super. 13, 20,
            (App. Div. 1972)). In addition, the proponent must
            demonstrate that the expert's testimony would be
            reliable. Ibid.

            [State v. J.Q., 252 N.J. Super. 11, 25 (App. Div. 1991).]

      Defendant points to Sanford's testimony on cross-examination in support

of his argument that the State failed to show that Sanford is reliable:

            Q.   The last indication is that acquisition of a weapon
            was used to discharge cartridges is indispensable to the
            comparative effort you were asked to undertake?

            A.     No.

            Q.     What did you mean when you said that?

            A.     I mean that, although I can opine that the
            projectiles were fired from the same weapon and the
            cartridge cases were fired from the same weapon,
            without having a subject weapon you cannot positively
            confirm that they were the same weapon firing cartridge
            cases and projectiles.

                                                                            A-0358-17T4
                                         9
             Q.    Okay.
                   ....

             Q.    So it's fair to say that scientifically you can't
             make a definitive statement with respect to the
             projectiles and the cartridges in this case, in those two
             instances, whether or not they compare?

             A.    I can have opinions on that, but I do not—they're
             not scientific opinions.

             Q.     You can't say to a degree of scientific certainty
             that's the case, correct?

             A.    Correct.

      Here, the judge issued a cautionary instruction to the jury advising them

how they could consider Sanford's testimony.         Moreover, defense counsel

agreed to the cautionary instruction. The judge properly informed the jury that

defendant was not being charged with the prior homicide, and that they were not

to consider the prior homicide with respect to the current charges against

defendant.

      We also consider whether the trial judge's admission of Sanford's

testimony "was sufficiently prejudicial to have [had] the capacity to bring abou t

an unjust result." State v. Thompson, 405 N.J. Super. 76, 81 (App. Div. 2009).

Put differently, Sanford's testimony must be analyzed under the harmless error




                                                                          A-0358-17T4
                                       10
standard. See Ragusa v. Lau, 233 N.J. Super. 84, 89 (App. Div. 1989), rev'd on

other grounds, 199 N.J. 276 (1990).

      Under Rule 2:10-2, "[a]ny error or omission shall be disregarded . . .

unless it is of such a nature as to have been clearly capable of producing an

unjust result . . . ." This court must determine "whether in all the circumstances

there [i]s a reasonable doubt as to whether the error denied a fair trial and a fair

decision on the merits . . . ." State v. Macon, 57 N.J. 325, 338 (1971); see also

Thompson, 405 N.J. Super. at 81 ("Even if the State elicits improper expert

testimony during a criminal trial, a reversal of the defendant's conviction is

required only if that testimony was sufficiently prejudicial to have the capacity

to bring about an unjust result.").

      "The harmless error standard requires that there be some degree of

possibility that [the error] led to an unjust result. The possibility must be real,

one sufficient to raise a reasonable doubt as to whether [it] led the jury to a

verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26

(2012) (alterations in original) (internal quotation marks omitted).

      As the trial court recognized, Sanford's testimony about the firearm used

in the two homicides was foundation for Webb's testimony about gang activity

between the Rollin 30's Crips and the G-Shine Bloods. In light of the proofs in


                                                                            A-0358-17T4
                                        11
this case, which included defendant's admission of the shooting to several

individuals, there cannot be "a reasonable doubt" that defendant was convicted

as a result of "a fair trial and a fair decision on the merits." See Macon, 57 N.J.

at 338. Because defendant cannot demonstrate that Sanford's testimony about

ballistics "led the jury to a verdict it otherwise might not have reached," the trial

judge's admission of Sanford's testimony was harmless error and does not

warrant reversal.

                                        III.

      Defendant further asserts the State's profiling and concomitant accusal of

a black female juror having improper contact with another person outside of the

courtroom denied him a fair trial. During the trial, the judge informed the parties

that "[i]t was brought to [his] attention last evening that an individual who was

a spectator yesterday, who is also known as a Rollin 30's Crips member,

approached one of the jurors and had a conversation" during a lunch break. The

judge further stated that he was concerned that "this juror did not report any such

contact."

      The trial judge proceeded to voir dire juror seven, a black woman. The

following exchange ensued:

             THE COURT: Yesterday I gave the jury a longer lunch
             period, an hour [fifteen] minutes.

                                                                             A-0358-17T4
                                        12
JUROR NO. [SEVEN]: Right.

THE COURT: And you and your colleagues, as I've
noted repeatedly, have been remarkably prompt–which
I really appreciate. I feel–I hope you feel, and your
fellow jurors feel that I'm prompt as well.

JUROR NO. [SEVEN]: Right.

THE COURT: You were substantially late yesterday.

JUROR NO. [SEVEN]: Uh-huh.

THE COURT: And I thought about it at the time,
should I bring this to your attention, should I question
you, but I didn't want to embarrass you.

JUROR NO. [SEVEN]: Okay.

      ....

THE COURT: It was brought to my attention that
somebody approached you during the lunch hour.

JUROR NO. [SEVEN]: No. No one approached me.

THE COURT: That you had a conversation with
somebody who had been in the courtroom as an
observer for a number of minutes.

JUROR NO. [SEVEN]: No.

THE COURT: Let me ask you this: [w]ere you outside–
were you outside this building during the lunch hour?
Did you leave the building for the lunch hour?

JUROR NO. [SEVEN]: Yes.


                                                           A-0358-17T4
                          13
THE COURT: Were you on the front veranda area?

JUROR NO. [SEVEN]: No, I was in the pizza parlor
with my colleagues.

THE COURT: So are you indicating to me that nobody–
that you had no conversation with anybody that was not
a juror during your–during the entirety of the lunch
hour?

JUROR NO. [SEVEN]: Yes, I am.

THE COURT: Okay. I'm going to ask–[are] there any
additional questions from the lawyers?

[DEFENSE COUNSEL]: No, [Y]our [H]onor.

THE COURT: I'm going to wait for a moment.

[PROSECUTOR]: I guess the only other question is
. . . when you returned from lunch did you walk through
the main front door?

JUROR NO. [SEVEN]: I went to the rear, found out the
rear was not open, I had to go around the front.

THE COURT: Were you with your fellow jurors then?

JUROR NO. [SEVEN]: Not at that time. I was by
myself.

THE COURT: How come you were by yourself?

JUROR NO. [SEVEN]: I had to give my son my vehicle
because I had to pick up my child, so there was no way
to pick up my daughter so he had to come get the
vehicle from me, and I had to somehow get it to him
and hurry up back.

                                                          A-0358-17T4
                         14
            THE COURT: So when you were coming in the front
            of this building, you're telling me you had no
            communication with anybody else?

            JUROR NO. [SEVEN]: No, I came through the guard
            entrance. The guard, basically, he took my belongings.
            My earrings kept going off, for some reason, and I was
            trying to hide my juror badge. He said, "Take your juror
            badge off." I took it off. There was a young man he was
            talking to that was in front of me, but no, I never talked
            to anyone.

      The judge then interviewed a white juror. Defendant asserts that juror

number seven was falsely identified because she is black, and the "process of

interfering with her dignity and composure rendered the trial unfair because of

its unknown affect."

      We apply an abuse of discretion standard to the trial court's determinations

regarding claims of juror taint. State v. R.D., 169 N.J. 551, 559-60 (2001). The

Sixth Amendment to the United States Constitution and Article I, paragraph 10

of the New Jersey Constitution guarantee criminal defendants the right to an

impartial jury during trial. Id. at 557. Criminal defendants are "entitled to a

jury that is free of outside influences and [that] will decide the case according

to the evidence and arguments presented in court in the course of the criminal

trial itself." State v. Williams, 93 N.J. 39, 60 (1983).




                                                                          A-0358-17T4
                                       15
      "The securing and preservation of an impartial jury goes to the very

essence of a fair trial." Ibid. "[If] during the course of the trial it becomes

apparent that a juror may have been exposed to extraneous information, the trial

court must act swiftly to overcome any potential bias and to expose factors

impinging on the juror's impartiality." R.D., 169 N.J. at 557-58 (citing State v.

Bey, 112 N.J. 45, 83-84 (1988)).

      Our Supreme Court recognizes that "the trial court is in the best position

to determine whether the jury has been tainted." R.D., 169 N.J. at 559. The trial

judge must "consider the gravity of the extraneous information in relation to the

case, the demeanor and credibility of the juror or jurors who were exposed to

the extraneous information, and the overall impact of the matter on the fairness

of the proceedings." Ibid. The trial judge has the discretion to grant a new trial

based on juror taint. Id. at 558.

      In the instant matter, we find no basis to second-guess the trial judge's

handling of the jury issue. After learning of the reported incident, the judge

promptly conducted a voir dire of the relevant jurors. Nothing in the record

indicates that juror number seven or any other juror felt intimidated, and they

were otherwise able to decide the matter in a fair and impartial manner.




                                                                          A-0358-17T4
                                       16
Accordingly, we find no abuse of the trial judge's discretion in allowing juror

number seven to continue on the case.

      Defendant also cites to a litany of cases involving racial profiling, State

v. Lee, 190 N.J. 270 (2007), peremptory strikes, Batson v. Kentucky, 476 U.S.

79 (1986), and other discriminatory practices, Swain v. Alabama, 380 U.S. 202

(1965). There is no evidence of a racial motive, discriminatory practice, or

discriminatory effect based upon our careful review of the record. Here, juror

number seven was interrogated in a respectful way regarding a mistakenly

perceived incident. As such, defendant has not shown any prejudice or undue

consequence.

                                        IV.

      Next, defendant argues that the trial judge erred by permitting the jury to

view a short video of defendant speaking with the State's witness, Anthony

Pearson, at the county jail during the trial. There was no audio, only video. The

audio was presented to support the claim of witness tampering. The State

contended that defendant attempted to persuade Pearson not to testify.

      Defendant argues that the soundless video has no probative value and the

conditions of the penal facility resulted in prejudice and undue influence on the

jurors, referring to it as the "foreboding belly and bowels of a correctional


                                                                         A-0358-17T4
                                      17
facility." Defendant further posits that, "[t]he nature of an inmate's existence in

the institution and concomitant survival is immediately a source of provoked

speculation," and that "[c]learly, all of the jurors were influenced by the

conditions in a penal facility regardless of the cautionary instruction or other

masking tools applied."

      In support of this argument, defendant relies on cases involving instances

where a defendant was required to appear before a jury in prison garb and/or

restraints. See State v. Artwell, 177 N.J. 526, 539 (2003) (finding the practice

of producing witnesses in prison garb prior to the decision did not advance an

essential state interest and reversing the defendant's conviction). Defendant

argues the depiction of the jail created the impression that the inmates, including

himself, were all guilty and dangerous, and that as a result, the risk of undue

prejudice outweighed the probative value of the video under Rule 403.

      Artwell involved a witness appearing in court in prison garb, at the

instruction of the State. Id. at 531. There is no analog here, as the video was

offered by the State as evidence of witness tampering. Furthermore, the trial

judge conducted a Rule 404(b) hearing relative to defendant's attempt to

persuade Pearson not to testify.




                                                                           A-0358-17T4
                                       18
      Additionally, the judge properly conducted an analysis pursuant to State

v. Cofield, 127 N.J. 328 (1992). In determining the analysis required by Rule

404(b), the Cofield Court provided four factors to be considered:

            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.

            [127 N.J. at 338.]

      The judge determined that defendant's request to convince Pearson not to

testify was relevant to a material issue (prong one), and the testimony and

accompanying evidence was clear, convincing, and probative (prongs three and

four).2 The trial judge considered the video and testimony elicited at the hearing.

The video showed that the conversation lasted for over four minutes, during

which defendant would periodically get up and return to the cell, while "looking



2
  The second Cofield prong, that the evidence be reasonably close in time and
close in kind, was irrelevant, as the incident took place while defendant was
incarcerated during the trial and the issue involved the witness the State planned
to have testify.
                                                                           A-0358-17T4
                                       19
to make sure that he was able to speak in private . . . ." Because the trial judge's

findings are supported by sufficient credible evidence in the record, and a

limiting instruction was given to the jury, we conclude the court's decision to

admit the video was not a mistaken exercise of discretion.

                                        V.

      Defendant further argues that remarks the prosecutor made in summation

denied him a fair trial. We disagree.

      The record shows that during the prosecutor's summation, the jury was

told "[d]efendant was arraigned, he should have pled guilty . . . ." The judge

sustained defense counsel's objection and immediately instructed the jury that

"it's an individual's constitutional right to go to trial. The State has the burden

of proof . . . [and] the burden never shifts to the [d]efense." Defense counsel

also objected to the prosecutor's characterization of defendant's interaction with

Shenouda, a Crips member from Elizabeth, because the intended message was

to "go back to [your] boys . . . [and] tell them, [I am] not a man to be toyed with

. . . ."   The trial judge sustained the objection raised by defense counsel.

Defendant also asserts the prosecutor's last comment that "defendant is a stone-

cold-blooded assassin," was improper.




                                                                            A-0358-17T4
                                        20
      Prosecutors are "expected to make vigorous and forceful" summations,

and they "are afforded considerable leeway" so long as their remarks are tethered

to the evidence presented and the reasonable inferences to be drawn therefrom.

State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Harris, 141 N.J. 525, 559

(1995); State v. Williams, 113 N.J. 393, 447 (1988)). However, prosecutors

may "not make inaccurate legal or factual assertions during a trial and . . . must

confine their comments to evidence revealed during the trial and reasonable

inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178

(2001) (citing Frost, 158 N.J. at 86; State v. Marks, 201 N.J. Super. 514, 534

(App. Div. 1985)).

      In determining whether to reverse a conviction for prosecutorial

misconduct, including improper remarks during summation, an appellate court

must decide whether "the prosecutor's misconduct was so egregious that it

deprived the defendant of a fair trial." Frost, 158 N.J. at 83 (citing State v.

Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).

On appeal, we must consider whether the defendant objected to the remarks,

"whether the remarks were withdrawn[,]" and "whether the court ordered the

remarks stricken from the record and instructed the jury to disregard them."

Ibid. (citing State v. Marshall, 123 N.J. 1, 153 (1991); Ramseur, 106 N.J. at 322-


                                                                          A-0358-17T4
                                       21
23; State v. G.S., 278 N.J. Super. 151, 173 (App. Div. 1994), rev'd on other

grounds, 145 N.J. 460 (1996); State v. Ribalta, 277 N.J. Super. 277, 294 (App.

Div. 1994)).

      The decision whether to issue a curative instruction "is one that is

peculiarly within the competence of the trial judge, who has the feel of the case

and is best equipped to gauge the effect of a prejudicial comment on the jury in

the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). Generally, a

curative instruction eliminates prejudice if it instructs jurors to disregard a

specific statement and is "accomplished without delay." State v. Vallejo, 198

N.J. 122, 134-35 (2009). "The adequacy of a curative instruction necessarily

focuses on the capacity of the offending evidence to lead to a verdict that could

not otherwise be justly reached." Winter, 96 N.J. at 647.

      The judge found the prosecutor's comment about defendant's exchange

with Shenouda was inappropriate but noted the prosecutor may suggest to the

jury that an inference could be drawn from the evidence in the record. We are

satisfied the comments were not so egregious to deprive defendant of a fair trial.

                                       VI.

      Lastly, defendant argues the trial judge erred by not performing the Rule

403 analysis required for admission of gang-related evidence of motive.


                                                                          A-0358-17T4
                                       22
Defendant does not dispute that gang-related evidence is admissible and helpful

to juries under Torres, 183 N.J. at 574-77. However, defendant claims that "the

jury was inundated with evidence of proclivity and foul character."

      The trial judge qualified the gang-related evidence with a specific

instruction to the jury: "you may not decide that just because [d]efenda nt is a

member of a street gang or that the decedent was a member of a street gang,

. . . [d]efendant must be guilty of the present crimes. I have admitted this

evidence only to help you decide the specific question of motive."

      The gang-related evidence was introduced as background information to

assist the jury in determining motive. Based upon our review of the record, the

evidence was not elicited, as defendant seems to imply, to associate defendant

with other homicides. We discern no abuse of discretion and defer to the trial

judge's evidentiary ruling here as to the gang-related evidence.

      Affirmed.




                                                                        A-0358-17T4
                                      23
