                                NOT FOR PUBLICATION WITHOUT THE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-0400-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCIS BRACE, a/k/a
FRANCIS BRACE, JR.,
and JAZMEIR JACKSON,

     Defendant-Appellant.
___________________________

                    Submitted October 28, 2019 – Decided February 18, 2020

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 15-04-0352.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Richard Sparaco, Designated Counsel, on the
                    brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Ali Y. Ozbek, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      After trial with two codefendants, Gregory Oliver and Jahmad Green,

defendant Francis Brace appeals from his conviction by jury and sentence for

first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-

4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-

3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts

of second-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (counts two and nine); second-degree aggravated assault of Alaysia

Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree

attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-

3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count three). Both victims were shot in an early-morning incident

on August 31, 2014. The State alleged defendant and his codefendants shot at a

gold Ford Taurus from which shots were also fired. Burroughs was shot in the

head and pronounced dead on the sidewalk where he fell. Chambers, who was

seated in Brace's BMW in which he had earlier picked her up, was also shot in

the head; she survived her wound. Neither of the victims were the intended

targets of the shootings.

      On appeal, defendant argues:

            POINT I


                                                                       A-0400-17T4
                                      2
             THE     VERDICT      OF    AGGRAVATED
             MANSLAUGHTER WAS NOT SUPPORTED BY
             THE EVIDENCE AND SHOULD IN THE INTEREST
             OF JUSTICE BE SET ASIDE, AND DEFENDANT
             WAS DENIED EFFECTIVE ASSISTANCE OF
             COUNSEL DUE TO TRIAL COUNSEL'S FAILURE
             TO MOVE TO SET ASIDE THE VERDICT.

             POINT II

             DEFENDANT WAS DENIED THE RIGHT TO A
             FAIR TRIAL WHEN THE STATE PUBLISHED TO
             THE JURY A GRUESOME PHOTOGRAPH OF THE
             HOMICIDE VICTIM, PARTICULARLY WHERE
             THAT    EXHIBIT  WAS      LATER  RULED
             INADMISSIBLE UNDER N.J.R.E. 403.

             POINT III

             THE COURT ERRED IN WEIGHING THE
             AGGRAVATING SENTENCING FACTORS, AND
             THEREFORE THE SENTENCE OF [TWENTY-
             SEVEN] YEARS WAS MANIFESTLY EXCESSIVE.

             POINT IV

             THE COURT ERRED IN SENTENCING . . .
             DEFENDANT TO CONSECUTIVE SENTENCES BY
             MISAPPLYING THE GUIDELINES SET FORTH IN
             STATE V. YARBOUGH.1

For the reasons we now discuss, we affirm.

                                I.



1
    100 N.J. 627 (1985).
                                                       A-0400-17T4
                                      3
       Defendant moved for and was denied a directed verdict after the State

rested its case. Defendant now contends counsel was ineffective for failing to

renew the motion pursuant to Rule 3:18-2 following the guilty verdict because

the trial judge would have vacated his conviction for aggravated manslaughter

had the issue been presented. Specifically, defendant submits there was no

evidence he recklessly "caused" Burroughs's death within the strictures of

N.J.S.A. 2C:11-4(a)(1),2 and codefendant Oliver admitted to shooting




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

             Criminal     homicide           constitutes    aggravated
             manslaughter when:

                   (1) The actor recklessly causes death under
                   circumstances manifesting extreme indifference
                   to human life; or

                   (2) The actor causes the death of another person
                   while fleeing or attempting to elude a law
                   enforcement officer in violation of subsection b.
                   of N.J.S.[A.] 2C:29-2. Notwithstanding the
                   provision of any other law to the contrary, the
                   actor shall be strictly liable for a violation of this
                   paragraph upon proof of a violation of subsection
                   b. of N.J.S.[A.] 2C:29-2 which resulted in the
                   death of another person. As used in this
                   paragraph, "actor" shall not include a passenger
                   in a motor vehicle.
                                                                            A-0400-17T4
                                         4
Burroughs in the eye. Accordingly, defendant maintains this court should find

plain error and vacate his conviction of the manslaughter charge.

      Claims of ineffective assistance of counsel are not typically reviewed on

direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely

decline to entertain ineffective-assistance-of-counsel claims on direct appeal

because those claims 'involve allegations and evidence that lie outside the trial

record.'" (quoting State v. Preciose, 129 N.J. 451, 460 (1992))). "However,

when the trial itself provides an adequately developed record upon which to

evaluate defendant's claims, appellate courts may consider the issue on direct

appeal." State v. Castagna, 187 N.J. 293, 313 (2006).

      As the record in this case reveals, defendant's counsel moved for a

judgment of acquittal, R. 3:18-1, after the State rested. The trial judge denied

the motion. If counsel had moved under Rule 3:18-2, the trial judge would have

applied the same standard

            as that which applies when a motion for acquittal is
            made at the close of the State's case or at the end of the
            entire case. The trial judge must decide whether the
            evidence is sufficient to warrant a conviction. More
            specifically, the trial judge must determine whether the
            evidence, viewed in its entirety, be it direct or
            circumstantial, and giving the State the benefit of all of
            its favorable testimony as well as all of the favorable
            inferences which reasonably could be drawn therefrom,
            is sufficient to enable a jury to find that the State's

                                                                         A-0400-17T4
                                        5
            charge has been established beyond a reasonable doubt.
            On such a motion the trial judge is not concerned with
            the worth, nature or extent (beyond a scintilla) of the
            evidence, but only with its existence, viewed most
            favorably to the State.

            [State v. Kluber, 130 N.J. Super. 336, 341-42 (App.
            Div. 1974) (citations omitted).]

      Under that lens, the record also reveals sufficient evidence to support a

jury's finding that the State proved beyond a reasonable doubt that defendant

was guilty of aggravated manslaughter as Oliver's accomplice. A person is an

accomplice of another if: "[w]ith the purpose of promoting or facilitating the

commission of the offense; he (a) [s]olicits such other person to commit it; [or]

(b) [a]ids or agrees or attempts to aid such other person in planning or

committing it." N.J.S.A. 2C:2-6(c)(1).3

      Bianca Reeves testified at trial that she, defendant, Oliver, Chambers and

another woman named Aniya were "riding around" in defendant's BMW when

they were fired upon. She further testified as to her perceptions that evening.

Defendant and Oliver "called [their] friends and they left" with the five or more

friends who came to the codefendants' location. Later, after defendant called



3
  The statute also provides a third avenue of accomplice liability, not applicable
here: "(c) [h]aving a legal duty to prevent the commission of the offense, fails
to make proper effort so to do." N.J.S.A. 2C:2-6(c)(1).
                                                                          A-0400-17T4
                                        6
for his car to be brought to him, Chambers drove it to a location at which

defendant, Oliver and "a lot of other people" congregated. About five or ten

minutes after Oliver used the keys to access the BMW's trunk, Reeves heard

gunshots. After the shooting ended, Reeves discovered Chambers had been shot.

Defendant, upon seeing Chambers, said, "I can't believe these dumb[-]ass

niggers shot her her fucking head." 4 Defendant left with his friends.

      During their investigation of the shootings, Paterson police detectives

twice interviewed Jocelyn Suggs. Video recordings of both interviews—the

first, four days after the shooting and the second on December 3, 2014—were

admitted into evidence and played for the jury. 5 In the statements, Suggs

explained to the detectives that a large crowd of people had congregated in the

area around a parked BMW in which Chambers sat prior to the shooting. Suggs

was warned there was going to be a shooting. She placed defendant at the scene,

at the side of the BMW, and described defendant as Chambers's boyfriend.

Someone retrieved a gun from the BMW's interior. The first shots were fired



4
  The trial transcript indicates Reeves twice repeated the double "her" used in
her quotes of defendant.
5
   The statements were admitted as inconsistent statements under N.J.R.E.
803(a)(1), per the trial judge's ruling after conducting a hearing pursuant to State
v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), aff'd, 121 N.J. 1 (1990).
                                                                            A-0400-17T4
                                         7
from the gold Taurus as it drove by the group gathered near the BMW. Suggs

observed defendant return fire with the smaller of the guns used. She told

detectives an individual named Jahmad was at the scene, and that she heard him

state that he had a gun. Suggs also told detectives a week or two after the

shooting, she heard Oliver state that he "shot him in the eyeball."

      Under those circumstances, where the evidence suggests defendant and

Oliver had been together all evening, been shot at, left with "friends" and were

together when fired upon a second time, whereafter defendant was seen firing a

gun, and Oliver also admitted shooting Burroughs in the eye during the gunfight,

there was sufficient evidence for the jury to find beyond a reasonable doubt that

defendant either solicited Oliver to shoot Burroughs, or aided or agreed or

attempted to aid him in planning or committing aggravated manslaughter, or

both. We thus determine a motion presented pursuant to Rule 3:18-2 would

have been denied.

      As such, defense counsel was not ineffective under the dual-pronged test

formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). Because there

was enough evidence presented to thwart a Rule 3:18-2 motion, defendant

cannot establish his counsel "made errors so serious that counsel was not


                                                                         A-0400-17T4
                                        8
functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," ibid.

(quoting Strickland, 466 U.S. at 687), especially considering that defendant

must overcome the "'strong presumption' that counsel exercised 'reasonable

professional    judgment'   and    'sound     trial   strategy'   in   fulfilling   his

responsibilities," Hess, 207 N.J. at 147 (quoting Strickland, 466 U.S. at 689-90).

For the same reason, defendant cannot demonstrate the second prong:                   "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Castagna, 187 N.J. at 315 (quoting

Strickland, 466 U.S. at 694). We discern no reason to set aside the jury's verdict.

                                        II.

       Defendant next contends he was denied the right to a fair trial because a

color6 crime scene photograph depicting Burroughs, lying dead in a pool of

blood, was twice shown to the jury, and because the prosecutor later told the

jury in summation that Burroughs "died in a halo, a bloody halo of his own

blood." The photo, which apparently was shown on a screen visible to the jury,

was identified by two officers who each testified that it depicted Burroughs as

they found him at the scene. None of the defense counsel objected when the

photo was displayed to the jury during each officer's testimony. Only when the


6
    The record contains only a black and white copy of the photograph.
                                                                               A-0400-17T4
                                        9
State moved the photo into evidence with numerous other exhibits, did all three

defense counsel object. The trial judge ruled the photo inadmissible because the

prejudice it engendered outweighed its probative value.

      Defendant argues the display of the "gruesome" photo was unduly

prejudicial and deprived defendant of a fair trial because it served no purpose

other than to inflame the jury's passion. According to defendant, this error was

especially prejudicial because of the alleged dearth of evidence supporting his

conviction.

      Because no objection was made, we will not reverse unless the error was

"clearly capable of producing an unjust result," R. 2:10-2; that is, unless there

is a "reasonable doubt as to whether the error led the jury to a result it otherwise

might not have reached," State v. Macon, 57 N.J. 325, 336 (1971). We do not

perceive that to be the case.

      The record reveals the photo was briefly displayed during each officer's

testimony before the prosecutor moved on to another exhibit. The first officer

testified the photo depicted "the male that we found on the corner who was shot";

and confirmed that the condition of the man in the photo was as the officer found

him. When the second officer was shown the photo, he was asked, "Is this what




                                                                            A-0400-17T4
                                        10
Mr. Burroughs looked like when you arrived at the scene?"                 He simply

responded affirmatively.

      During an in-chambers colloquy among counsel and the judge prior to the

redirect examination of the first officer, the judge commented, "[w]ith regard to

the pictures that were published, . . . my . . . assumption that . . . if I didn't hear

any objection, which means you're fine with them. And do me a favor. If there

are pictures that are going to be published . . . just make sure you guys are all in

agreement." The prosecutor responded that he spoke to defense counsel about

the photographs in advance and "told them if you're going to have any objection

to publish[ing] them[,] . . . let me know."

      We also discern that in the judge's final jury charge, when discussing "the

evidence that [the jury] may consider in judging the facts of this case," he told

the jury that the term, evidence, included "any exhibits that have been admitted

into evidence," and that "any exhibit that has not been admitted into evidenc e

cannot be given to you in the jury room even though it may have been marked

for identification. Only those items admitted into evidence can be given to you."

The jury is presumed to have followed that instruction. See State v. Loftin, 146

N.J. 295, 390 (1996) ("That the jury will follow the instructions given is

presumed.").


                                                                               A-0400-17T4
                                         11
      Under those circumstances, the brief display of the photo, albeit twice,

was not clearly capable of causing an unjust result, leading the jury to an

outcome it might not have otherwise reached.

      Further, the prosecutor's remarks were untethered to the photograph.

Although defendant ascribes the prosecutor's description to the photo, the

prosecutor did not mention it. We also note the prosecutor's statement could

have been fair comment on the first officer's testimony that, upon arrival at the

crime scene, he "saw a male down on the sidewalk bleeding heavily." He

described the victim's condition as "laying face up on the sidewalk bleeding

from his head."     "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). "Generally, if no

objection was made to the improper remarks, the remarks will not be deemed

prejudicial." Id. at 83.

      We, therefore, find meritless defendant's contention that he was deprived

of a fair trial because the photo was twice displayed.

                                       III.

      Defendant was sentenced to a twenty-year prison term, subject to an

eighty-five percent period of parole ineligibility pursuant to the No Early


                                                                         A-0400-17T4
                                      12
Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of

aggravated manslaughter; a seven-year concurrent term for unlawful possession

of a weapon; and a consecutive seven-year sentence, also subject to a NERA

parole ineligibility period, for aggravated assault.

      The trial judge applied aggravating factors one, three, six and nine,

N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), to all counts, and applied aggravating

factor two, N.J.S.A. 2C:44-1(a)(2), separately, to the aggravated assault charge.

      The court attributed "medium weight" to aggravating factor one, "[t]he

nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), noting the

shots were fired at a moving target—the Taurus—in the dark in a residential

neighborhood, when numerous young people congregated.                   The judge

concluded: "the senseless nature of the shooting and the fact that . . . defendants

fled the scene . . . leads this [c]ourt to find that the aggravated manslaughter and

the aggravated assault were committed in a depraved manner."

      With respect to the aggravated assault of Chambers, the court attributed

"somewhat low weight" to aggravating factor two, "[t]he gravity and seriousness

of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), due to the severity of

the injury she suffered. The judge acknowledged defendant remained on the




                                                                            A-0400-17T4
                                        13
scene to ensure paramedics were called, but also noted defendant fled the scene

before they arrived.

      The judge gave "medium weight" to aggravating factor three, "[t]he risk

that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3),

recognizing defendant had accumulated a criminal record consisting of six prior

arrests, two municipal court convictions and a felony conviction, as well as

defendant's lack of employment history and substance abuse. The judge also

noted various witnesses mentioned defendant's affiliation with a local street

gang;7 but acknowledged he did not have any:               "independent evidence or

substantial evidence as to the extent of . . . defendant's involvement[.]"

Accordingly, the judge gave "minimum to low weight" to defendant's gang

affiliation in his analysis of aggravating factor three.

      Defendant argues the judge improperly found aggravating factor one,

because the jury—in acquitting defendant of murder and attempted murder, but

convicting on the lesser-included charges—concluded the injuries to Burroughs

and Chambers were unintentional; and "there was no intentional infliction of

any additional pain or suffering." Defendant also asserts the trial judge should



7
   A pretrial ruling barred the prosecutor from mentioning defendant's gang
affiliation at trial.
                                                                            A-0400-17T4
                                        14
not have considered evidence of gang affiliation because the judge

acknowledged a lack of independent evidence of defendant's gang involvement.

In addition, defendant argues the judge misapplied State v. Carey, 232 N.J.

Super. 553 (App. Div. 1989), in considering evidence of gang affiliation that

was not admitted at trial.

      Applying a deferential standard of review to the judge's sentencing

determination, we find no error in the judge's identification and balance of the

"aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State

v. Lawless, 214 N.J. 594, 606 (2013)).

      Recognizing the judge's application of aggravating factor one "must be

based on factors other than the death of the victim and the circumstances

essential to support a finding that the defendant has acted with extreme

indifference to human life," State v. Fuentes, 217 N.J. 57, 76 (2014), we

conclude the judge properly analyzed facts that went beyond the essential

elements of the crime. Multiple shots were fired in the dark at a moving target

in a residential neighborhood in an area populated by numerous bystanders. This

combination of facts transcends the requisite basis for reckless indifference and

buttresses the application of aggravating factor one.         Defendant placed


                                                                         A-0400-17T4
                                      15
numerous people at risk of bodily injury or death by wantonly and repeatedly

firing. See Lawless, 214 N.J. at 609-10 ("[C]ourts applying aggravating factor

one focus on the gravity of the defendant's conduct, considering both its impact

on its immediate victim and the overall circumstances surrounding the criminal

event.").

      We determine the remainder of defendant's sentencing arguments to be

without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We note only that the judge credited the testimony of several witnesses about

defendant's involvement in a local gang, and who "testified that [the] shooting

was a retaliation and a response to gang activity," in finding defendant's gang

affiliation. See State v. Smith, 262 N.J. Super. 487, 530 (App. Div. 1993)

("[S]entencing judges may consider material that otherwise would not be

admissible at trial, as long as it is relevant and trustworthy."). The judge

attributed only "minimum to low weight" to that affiliation because there was

no evidence establishing the extent of defendant's involvement. Further, the

presentence report contained the following:       "During the course of the

investigation detectives ascertained that members of a local street gang named

'Brick Squad' were involved in this incident. Two members of the gang; Francis

Brace AKA Fat Fat and Jahmad Green . . . were identified as suspects."


                                                                        A-0400-17T4
                                      16
Moreover, defendant's lengthy record alone warranted the "medium weight" the

judge attributed to aggravating factor three.

      Finally, the judge properly applied the Yarbough8 factors in imposing a

consecutive sentence for the aggravated assault of Chambers. As the judge

noted, Burroughs and Chambers were in "two separate locations" when they

were shot; Chambers was seated inside the BMW, and Burroughs was shot "on

the sidewalk some ways away." Accordingly, the judge concluded, "[t]o issue




8
   In Yarbough, 100 N.J. at 644, the Court delineated factors upon which a
sentencing court should focus in determining whether a sentence should run
concurrent or consecutive:

            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous.


                                                                      A-0400-17T4
                                       17
concurrent sentences would not adequately take into account the distinct nature

of the two harms inflicted by these defendants."

      "[A] trial court has the discretion to impose consecutive sentences in cases

where . . . the only factor supporting consecutive sentencing is multiple victims."

State v. Molina, 168 N.J. 436, 442 (2001). "Although that principle resonates

most clearly in cases in which a perpetrator intentionally targets multiple victims

. . . it also applies to cases in which, as here, the defendant does not intend to

harm multiple victims but it is foreseeable that his or her reckless conduct will

result in multiple victims." State v. Carey, 168 N.J. 413, 429 (2001).

      We perceive no violation of the sentencing guidelines; the aggravating

and mitigating factors found by the judge were based upon credible evidence in

the record; and the sentence imposed for these multiple crimes is not "clearly

unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70

(quoting State v. Roth, 95 N.J. 334, 365 (1984)).

      Affirmed.




                                                                           A-0400-17T4
                                       18
