                                NOT FOR PUBLICATION WITHOUT THE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-2626-15T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANDY R. TORRES, a/k/a
ANDREW R. TORRES, and
ANDREW RUBIN TORRES,

     Defendant-Appellant.
______________________________

                   Argued January 30, 2019 – Decided March 4, 2019

                   Before Judges Koblitz, Ostrer and Currier.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Warren County, Indictment No. 13-02-0051.

                   Lauren S. Michaels, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Lauren S. Michaels, of
                   counsel and on the brief).

                   Jennifer E. Kmieciak, Deputy Attorney General, argued
                   the cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Jennifer E. Kmieciak, of counsel and
                   on the brief).
PER CURIAM

      Defendant Andy R. Torres appeals from his convictions after trial of

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

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

felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and third-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(c). During the jury trial, the court

dismissed a charge of third-degree tampering with a witness, his girlfriend

Alexis,1 N.J.S.A. 2C:28-5(a)(1), and defendant was acquitted of first-degree

murder, N.J.S.A. 2C:11-3(a)(1)(2). After the jury trial, he was convicted by the

court of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-

7(b)(1).   Defendant was sentenced to an aggregate term of forty-years

imprisonment, with eighty-five percent parole ineligibility under the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. We reject defendant's claims of

reversible trial errors and affirm the convictions, but remand for resentencing.

      Testimony at trial revealed the following. Several people heard a gunshot

at a BP gas station in Phillipsburg around midnight on January 5, 2012. Two



1
  We use first names when referring to Alexis and her brother, Zach, to avoid
confusion and preserve their anonymity.
                                                                         A-2626-15T2
                                        2
witnesses described "two white guys" running from the gas station wearing

similar jackets.

        Lieutenant Ralph Reppert of the Phillipsburg Police Department arrived

at the gas station, where he saw the attendant, lying in a pool of blood, shot once

through the thigh. He noticed a shotgun-style ammunition "wad" laying on the

ground near the attendant's booth. The attendant had a significant injury to his

right thigh, suffering damage to major blood vessels. He died on January 7,

2012.

        On January 11, 2012, the police located defendant and Alexis in a friend's

home in Pennsylvania. The friend testified that defendant and Alexis were

staying with her before the incident occurred. When the police arrived, she told

them about defendant's shotgun and led them to the kitchen closet where it was

located. She said that when she saw defendant put it there, she told "him to get

that out of my house, I didn't want that in my house." It was loaded with two

shells. Later testing revealed that it was functional. Defendant did not have a

firearms purchaser identification card. Co-defendant David Beagell was taken

into custody on January 25, 2012.

        After receiving information from the victim's family, an officer went to

pawn shops in Allentown looking for a twenty-two-carat gold wedding ring that


                                                                          A-2626-15T2
                                         3
belonged to the victim. The police found the victim's ring at a pawn shop a five-

minute walk from the home where defendant was staying. The pawn shop owner

testified that defendant pawned a ring on January 9, 2012.       The transaction

required defendant to show a photo identification and provide a signature, which

defendant did in his own name.

       After defendant was arrested, he waived his Miranda2 rights and gave a

statement regarding his involvement in the robbery and shooting. Defendant's

statement was recorded, and the DVD of his statement was admitted into

evidence and played for the jury.

       In his statement, defendant said he gave his shotgun to Beagell. When

they got into New Jersey, Beagell and Alexis's brother Zach stole a New Jersey

license plate and put it on the car so that no one would know that they were from

Pennsylvania. Defendant gave Beagell the shotgun and three shells; the shotgun

was not loaded when defendant gave it to Beagell. The two men went behind

the BP gas station while defendant and Alexis sat in the car.

       Alexis later drove up to the gas station and asked the gas attendant for

directions. Beagell and Zach came up from behind the attendant and Beagell



2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-2626-15T2
                                       4
put the shotgun up to his head and demanded money. The shotgun "literally

touched the freaking guy's head." Defendant was scared it was going to go off,

so he told Alexis to "get the fuck outta here." Alexis looked scared, but she

drove off.

      Defendant and Alexis drove around and saw Beagell and Zach in the

parking lot of another station and picked them up. Then they drove back to

Pennsylvania, where they divided the money from the robbery.

      Defendant denied that he shot the gas station attendant. He claimed that

he did not even know that the attendant had been shot until the next day when

Beagell's girlfriend showed him a news article on her cell phone. He did not

know where his shotgun was, but thought Beagell still had it, and he denied that

the shotgun found was his. He also claimed he did not know anything about the

attendant's missing ring.

      The State then called Alexis, who took the stand and testified that

defendant was her boyfriend. They were living together in January of 2012. She

started testifying about being at her mother's house with defendant on January

4, 2012, but then refused to testify further stating: "Listen, I can't do this. I

can't. I don't want to. Take it back."




                                                                        A-2626-15T2
                                         5
      At sidebar, the court and counsel had an extensive discussion on how to

proceed. Ultimately, the court decided to adjourn Alexis's testimony to allow

her an opportunity to consult with counsel.

      The next day, the court advised Alexis of the consequences of her

continued refusal to testify. When she was subsequently questioned by counsel,

Alexis stated: "I don't want to testify," and "I don't want my plea." When asked

by the court what she meant, Alexis stated, "I don't want to cooperate with the

State." Alexis also stated that she made the decision not to testify on her own

after speaking with counsel, and that her decision was not "influenced in any

way by any threat or promise or inducement by any person, [defendant], or

anybody else."

      The court advised the prosecution to call the State's next witness "without

further comment or without any comment to the jury as to what we've been doing

this morning other than resolving legal issues." Defense counsel did not object

or request any curative instruction.

      Beagell testified for the State as part of a plea deal; the murder and felony

murder charges against him were dismissed in exchange for his testimony

against defendant. He had jumped out of a third-floor window of the house




                                                                          A-2626-15T2
                                        6
when the police came and arrested defendant and Alexis on January 11, 2012.

Beagell was not arrested until January 25, 2012.

       Beagell testified to the following. On the evening of January 4, 2012,

Beagell was in his room drinking alcohol and smoking marijuana when Zach

said that defendant and Alexis wanted to rob a house or a gas station. Defendant

said he needed to pick up his shotgun and some clothes.

       They then drove to the BP gas station in Phillipsburg and parked across

the street. Alexis drove over to the gas station and asked the attendant for

directions. While she was talking to the attendant, defendant and Zach "came

up on the guy" from behind. Defendant pointed the shotgun at the attendant's

head. Beagell "bugged out" and told Alexis "to hit the gas and go." Alexis

drove off.

       Defendant had the shotgun when he returned to the car. He took the shell

out of the shotgun and said: "I shot the mother fucker."         Defendant said

something like: "I just shot him in his leg. It's going to be all right." Beagell

also noticed that "[defendant] had a ring on his hand," which defendant said he

took from the gas station attendant.

      After the State rested, defendant moved for a judgment of acquittal on the

witness tampering charge, as well as a mistrial. The State did not object to the


                                                                        A-2626-15T2
                                       7
dismissal of the witness tampering charge and the court entered a judgment of

acquittal, but denied the motion for a mistrial.

        Defendant testified in his defense that he was not involved in the planning

of the robbery, and did not travel to the BP gas station with Beagell, Zach and

Alexis. He claimed that he first learned of the robbery later that afternoon when

he went looking for Alexis. Zach and Beagell "were both arguing amongst

themselves, really loud, violently, about blaming each other for shooting the

man."

        The following Sunday, Alexis and Zach's mother:

             pulled me into another room with Alexis and starting
             [sic] speaking to me, asking me for my assistance,
             because she felt that if things were to arise to a point
             with the police involvement that [Beagell] would blame
             her son, [Zach,] so she asked me to help . . . . And she
             told me pretty much what I was to say in order to make
             sure that Zach wouldn't be in trouble.

She told defendant to tell the police that he was present during the robbery and

had witnessed Beagell with the shotgun.

        Defendant testified that he had lied to the police. The statement he gave

implicating himself in the crimes was false. He said he could not remember "a

lot of things" because he was "extremely high at the time." He admitted that the




                                                                          A-2626-15T2
                                         8
shotgun in evidence was his, but claimed that it belonged to both him and Zach,

and he did not know if it was used in the robbery.

      He said he did not actually know who shot the victim, but he believed at

the time that Beagell "was the type of guy" who would have done so. "He came

across as that type of person." He admitted pawning a ring for $81, but claimed

he did not know whether the ring in evidence was the ring he had pawned.

Alexis had given him "a bunch of jewelry that week" to pawn.

      Defendant raises the following issues on appeal:

            POINT I: THE COURT ABUSED ITS DISCRETION
            IN DENYING TORRES' MOTION TO SEVER THE
            WITNESS-TAMPERING CHARGE, EMPLOYING
            THE WRONG TEST AND FAILING TO APPLY AN
            N.J.R.E. 404(B) ANALYSIS. THEN, ONCE HIS CO-
            DEFENDANT/GIRLFRIEND         REFUSED      TO
            TESTIFY, AND THE TAMPERING CHARGE WAS
            DISMISSED, THE COURT WAS REQUIRED TO
            DECLARE       THE    REQUESTED    MISTRIAL.
            ALTERNATIVELY, THE JUDGE'S FAILURE TO
            INSTRUCT THE JURY REGARDING HOW, IF AT
            ALL,     IT    COULD   CONSIDER    ALEXIS'S
            TESTIMONY AND BREAKDOWN, AND THE
            DISMISSED CHARGE, IN ITS CONSIDERATION
            OF THE REMAINING CHARGES WAS PLAIN
            ERROR.

            A.  THE DENIAL OF THE TAMPERING CHARGE
            DEPRIVED TORRES OF A FAIR TRIAL.

            B.  ONCE THE TAMPERING CHARGE WAS
            DISMISSED, THE COURT WAS OBLIGATED TO

                                                                       A-2626-15T2
                                       9
DECLARE A MISTRIAL; THE FAILURE TO DO SO
DENIED TORRES A FAIR TRIAL.

C.  THE FAILURE TO PROVIDE THE JURY ANY
GUIDANCE ABOUT ALEXIS' EMOTIONAL
BREAKDOWN AND HER TESTIMONY WAS
PLAIN ERROR THAT DENIED TORRES A FAIR
TRIAL.

POINT II: TORRES' TRIAL WAS INFECTED WITH
IMPROPER      OTHER-CRIMES       EVIDENCE
INCLUDING THAT DEFENDANT: WAS ON
PROBATION AT THE TIME OF THE OFFENSE;
HAD PREVIOUSLY COMMITTED A BAD ACT
INVOLVING SOMEONE'S DAUGHTER WHO HAD
BEEN LEFT AT HOME; AND HAD CHOKED HIS
CO-DEFENDANT GIRLFRIEND, WHO WAS A
STATE WITNESS.

POINT III: THE COURT'S REFUSAL TO HAVE
THE    CO-DEFENDANT/GIRLFRIEND,   WITH
WHOM THE STATE ALLEGED DEFENDANT HAD
TAMPERED AS A WITNESS, TESTIFY IN
CIVILIAN CLOTHES VIOLATED THE SUPREME
COURT'S MANDATE IN STATE v. KUCHERA.

POINT IV:  THE PROSECUTOR COMMITTED
PROSECUTORIAL     MISCONDUCT       AND
VIOLATED      TORRES'     RIGHT     TO
CONFRONTATION BY REFERRING IN HIS
OPENING STATEMENT TO THE EXISTENCE OF A
NON-TESTIFYING ANONYMOUS INFORMANT
WHO ALLEGEDLY IMPLICATED TORRES.

POINT V: THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED TORRES A
FAIR TRIAL.


                                            A-2626-15T2
                   10
            POINT VI: A REMAND FOR RESENTENCING IS
            REQUIRED BECAUSE THE JUDGE ERRED IN
            FINDING AND WEIGHING AGGRAVATING AND
            MITIGATING    FACTORS,  AND   IMPOSED
            DUPLICATE MONETARY PENALTIES.

                                        I.

      In point I of his brief, defendant contends that the trial court erred in its

handling of the witness tampering charge by denying his motion to sever the

witness tampering charge, denying his request for a mistrial after the tampering

charge was dismissed, and failing "to provide the jury any guidance about

Alexis' emotional breakdown and her testimony."

                             A.     Motion to Sever

      Defendant argues that the trial court did not conduct the proper analysis

under N.J.R.E. 404(b) before denying his severance motion. According to

defendant, "[t]he tampering charge fails both the third and fourth prongs" of the

test established in State v. Cofield, 127 N.J. 328, 338 (1992).

      Any error in failing to sever was harmless because no evidence of witness

tampering was presented to the jury, and the claim was ultimately dismissed.

While defendant argues that he was prejudiced by the prosecutor's reference to

Alexis's anticipated testimony in his opening statement, the prosecutor's remarks

are not evidence to be considered by the jury, and the jury was so instructed .


                                                                          A-2626-15T2
                                       11
The jury is presumed to have understood and followed that instruction. State v.

Feaster, 156 N.J. 1, 65 (1998); see also State v. T.J.M., 220 N.J. 220, 237 (2015)

(appellate courts "act on the belief and expectation that jurors will follow the

instructions given them by the court").

                            B.    Motion for Mistrial

      Next, defendant contends that the court erred by failing to grant a mistrial

after Alexis refused to testify and the witness tampering charge was dismissed .

He argues that "[t]he allegation that [he] tampered with Alexis as a witness

infected the entire trial." First, he claims he was prejudiced by the prosecutor's

reference to Alexis's anticipated testimony in his opening statement. Second,

"Alexis's display in front of the jury, and the tampering accusations that hung

over the entire trial, dismissal notwithstanding, denied him the opportunity to

have the jury fairly evaluate [his] viable defense." According to him, "if [he]

could have presented his defense without the implication that he had threatened

or otherwise tampered with Alexis, there is a reasonable probability that they

would have believed this testimony, or concluded that a reasonable doubt

existed."

      "A mistrial is an extraordinary remedy" that should be employed "[o]nly

when there has been an obvious failure of justice . . . ." State v. Mance, 300 N.J.


                                                                          A-2626-15T2
                                       12
Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant

of a mistrial depends on the specific facts of the case and the sound discretion

of the court." State v. Allah, 170 N.J. 269, 280 (2002). When "the court has an

appropriate alternative course of action" it should deny the request. Id. at 281.

The decision to grant or deny a mistrial is within the trial court 's "sound

discretion" and "will not be reversed absent a clear showing of prejudice to

defendant." State v. Provoid, 110 N.J. Super. 547, 558 (App. Div. 1970).

      During his opening statement, the prosecutor said: "Now the charges, as

you heard, also include witness tampering, and you're going to he ar testimony

from Alexis . . . that after this [the robbery and shooting] happened [defendant]

went reaching out to her, asking her to change her testimony and change her

statement, and that ladies and gentlemen, establishes witness tampering."

      A prosecutor may state in his opening facts he intends in good faith to

prove by competent evidence, and the "[f]ailure of proof to meet expectations is

not cause for reversal 'unless allegations . . . are completely unsupported by the

evidence and there is a showing of prejudice to the defendant and bad faith by

the prosecutor.'" State v. McAllister, 41 N.J. 342, 351 (1964) (quoting State v.

Hipplewith, 33 N.J. 300, 309 (1960)); see also State v. Burns, 192 N.J. 312, 333-

34 (2006) (in determining whether a witness's refusal to testify at trial unduly


                                                                         A-2626-15T2
                                       13
prejudiced a criminal defendant, a reviewing court should consider whether

there was any misconduct or improper motive in prosecutor's decision to call

witness).

      Here, the court correctly pointed out that the prosecutor acted in good faith

by commenting on the expected testimony of Alexis in his opening statement

and by calling her to the stand. Alexis's failure to testify as expected was

through no fault of the State, and the prosecutor reasonably expected Alexis to

honor the terms of her plea agreement.          Additionally, the court properly

determined that any alleged prejudice from the prosecutor's opening remarks

would be sufficiently remedied by a curative instruction reminding the jury that

the prosecutor's remarks are not evidence to be considered by them in their

deliberations.

        C.       Failure to Provide, Sua Sponte, an Additional Instruction

      Finally, defendant argues for the first time on appeal that the court's failure

to provide the jury any guidance about Alexis's "emotional breakdown and her

testimony" was plain error.

      During the charge conference, defense counsel requested that the court

instruct the jury that the witness tampering charge "is no longer available for




                                                                             A-2626-15T2
                                        14
their consideration" and that "defendant has, in fact, been acquitted of witness

tampering." In doing so, he argued:

            I think in the context of this case, with the appearance
            of [Alexis] and her partial testimony and the State's
            opening to the effect that the defendant, at least by the
            State's theory, had done something to dissuade [Alexis]
            from testifying, the only way to undo -- I'm not sure it
            does undo it totally -- but the only way to begin to undo
            that prejudice is to tell the jury that the [c]ourt has
            acquitted [defendant] of [witness tampering].

      The court agreed and told the jury: "Now, the fact that I have entered a

judgment of acquittal, in other words, found Mr. Torres not guilty of that charge

as a matter of law, should not influence you or become a part of your discussion

or decision making on the balance of the charges."

      Because defendant did not object below, this issue is reviewed for plain

error, and reversal is unwarranted unless the error was "of such a nature as to

have been clearly capable of producing an unjust result." R. 2:10-2. Plain error

in the context of a jury charge is "[l]egal impropriety in the charge prejudicially

affecting the substantial rights of the defendant 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. Jordan, 147

N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). No

further instruction was needed here.

                                                                          A-2626-15T2
                                       15
                                       II.

      In point II of his brief, defendant contends that the court erred by denying

his mistrial requests related to the improper admission of other bad-acts

evidence. He argues that evidence "had no legitimate purpose and served only

to suggest that [he] had a propensity for criminality and violence."

                   A.      Reference to Defendant's Probation

      Detective Cruz testified about his involvement in the investigation. Cruz

volunteered: "Well, Mr. Torres had an outstanding probation[.]"

      Defense counsel immediately requested a mistrial.          The prosecutor

represented to the court that he had advised Cruz that he should not mention any

outstanding warrants. The court found Cruz's mention of probation was an

"innocent error." The court ruled that a mistrial was not necessary and that a

curative instruction was sufficient to alleviate the alleged prejudice. Defense

counsel "strongly" objected to any such instruction, arguing that it would only

"enhance the testimony."

      "[A] trial is not a perfectly scripted and choreographed theatrical

presentation; rather, it is an extemporaneous production whose course is often

unpredictable given the vagaries of the human condition." State v. Yough, 208

N.J. 385, 397 (2011).       "Attorneys will sometimes pose inartfully crafted


                                                                         A-2626-15T2
                                       16
questions, and even the most precise question may bring an unexpected response

from a witness." Ibid. A mistrial should only be granted "to prevent an obvious

failure of justice," and the decision to grant a mistrial is entrusted to the "sound

discretion of the trial court." State v. Smith, 224 N.J. 36, 47 (2016) (quoting

State v. Harvey, 151 N.J. 117, 205 (1997)). "[A]n appellate court will not

disturb a trial court's ruling on a motion for a mistrial, absent an abuse of

discretion that results in a manifest injustice." Harvey, 151 N.J. at 205.

      We do not find reversible error regarding the comment made by Detective

Cruz. The trial court had the "feel of the case" and was in the best position "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).

                            B.     Redaction Mistake

      In part of his statement to police, defendant said:

            I give the fucking gun to Dave, cause he's showed me
            guns that he's had before. He had a fucking .357 snub
            nose, the only reason I know that is because he fucking
            gave me every detail about it, it was chrome or black
            (INAUDIBLE) . . . he had a .45, like I don't fuck with
            guns, I don't like guns. I like to fight. I gave him the
            gun. We left. We went back to Michelle's house for a
            little bit, hung out. Everyone smoked, calmed down or
            whatever. I didn't wanna go at first, I really didn't. I
            don't like breaking into people's houses, because I used
            to do that when I was young and I was living in Las
            Vegas.

                                                                           A-2626-15T2
                                        17
            [Detective]: M-hm.

            [Defendant]: And when I did that, the people left their
            daughter home and ever since then I refused to do that
            shit. We go to fucking Jersey. Me and my fucking
            girlfriend are sitting in this fucking car. I'm telling her,
            yo, let's just fucking leave. If they wanna fucking sit
            here, let 'em sit here. The gun's not under my name.
            It's fucking illegal. If they get caught they get caught.
            She's like no, that's my little brother. And I understand
            that.

            [(emphasis added).]

      The court ruled that the two emphasized sections would be redacted.

When defendant's statement was played for the jury, however, only the first

emphasized portion was redacted. The second portion, "and when I did that, the

people left their daughter home and ever since then I refused to do that shit,"

was inadvertently left in and heard by the jury. Defense counsel immediately

moved for a mistrial. In denying defendant's application, the court explained

that the second statement standing alone "makes no sense" and thus, although

mistakenly left in by the State, is not a mistake "of sufficient magnitude" to

result in a mistrial. The court did not abuse its discretion by failing to declare a

mistrial under these circumstances.

            C.    The Prosecutor's Cross-Examination of Defendant



                                                                           A-2626-15T2
                                        18
      During his direct testimony, defendant said that he lied to police about his

involvement in the armed robbery because he "loved Alexis." On cross-

examination, the prosecutor asked, "You loved Alexis so much you tried to

choke her, right, right after this happened?" and defendant answered, "No ."

Defense counsel immediately objected, stating "that's false," and that "it should

never have been introduced into this case." At sidebar, defendant requested a

mistrial, arguing that the question was "totally improper."

      The prosecutor responded that, during his statement to the police,

defendant said, "I just fought with my girlfriend. Okay. I literally just put my

hands on her. I didn't punch her or anything, but I did grip her up." The court

sustained the objection, but denied a mistrial, advising counsel that it would tell

the jury that defendant's objection was sustained. It then instructed the jury that

the objection was sustained.

      The court then told the prosecutor that he could proceed with the cross -

examination, but requested that he "rephrase the question." Defendant explained

that he did put his hands on Alexis, but "[n]ot in the manner you're speaking."

He said he put his hands "on her shoulders" and "gripped them . . . [h]ard enough

to grab her attention."




                                                                          A-2626-15T2
                                       19
      "If [a criminal defendant] takes the stand and testifies in his own defense

his credibility may be impeached and his testimony assailed like that of any

other witness . . . ." Brown v. United States, 356 U.S. 148, 154–56 (1958)

(quoting Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)).

      Defendant had the opportunity to explain fully what happened and was

not unduly prejudiced by the question on cross-examination. Defendant denied

that he choked Alexis, and the court sustained defense counsel's objection to the

prosecutor's original question. The trial court did not err in denying defendant's

motion for mistrial. See State v. LaBrutto, 114 N.J. 187, 207 (1989) ("motions

for mistrial based on misconduct should be granted only where manifest

injustice would otherwise result"); see also State v. Ribalta, 277 N.J. Super. 277,

291 (App. Div. 1994) ("A mistrial is an extraordinary remedy and should be

resorted to only to prevent an obvious failure of justice.").

                                        III.

      In point III of his brief, defendant contends the court erred by permitting

Alexis, a State witness, to testify in prison garb. Prior to Alexis taking the stand,

the court informed counsel that she was wearing prison garb. Defense counsel

objected and requested that she be permitted to testify in civilian clothes,

arguing "her appearance in prison garb might engender sympathy for her."


                                                                            A-2626-15T2
                                        20
      The court did commit error by permitting Alexis to testify in prison garb ,

but not reversible error. Our Supreme Court has held that to preserve a criminal

defendant's constitutionally protected right to a fair trial, "a trial court may not

require a defendant's witness to appear at trial in prison garb." State v. Artwell,

177 N.J. 526, 533, 539 (2003) (referring to U.S. Const. amends. V, VI, and XIV;

N.J. Const. art. I, ¶ 10)).

      In State v. Kuchera, 198 N.J. 482, 485-86 (2009) our Supreme Court

determined that witnesses for both parties should not testify in prison garb . The

Kuchera Court, however, acknowledged that there may be exceptions to that

general rule:

             Finally, whether a witness testifies wearing prison garb
             will be subject to review under the abuse of discretion
             standard and will be gauged as whether it constitutes
             harmless error, that is, whether the error "'is of such a
             nature as to have been clearly capable of producing an
             unjust result.'" State v. Castagna, 187 N.J. 293, 312
             (2006) (quoting R. 2:10-2; editing marks omitted).

             [Id. at 501.]

      Here, the court misapplied its discretion by, without explanation, denying

defense counsel's request that Alexis appear wearing civilian clothes, deviating

from the general rule that such witnesses appear in civilian clothes. See id. at

500-01; see also Artwell, 177 N.J. at 539. The court also erred by failing to


                                                                           A-2626-15T2
                                        21
instruct the jury that Alexis's appearing in prison garb should play no role in

weighing the evidence and determining defendant's guilt. See Kuchera, 198 N.J.

at 501.

      However, both errors were harmless beyond a reasonable doubt. See R.

2:10-2; see also Kuchera, 198 N.J. at 501; Castagna, 187 N.J. at 312. Defendant

was not prejudiced because the witness tampering charge was dismissed and

Alexis did not provide any inculpatory testimony against defendant.

                                      IV.

      In point IV of his brief, defendant contends he was entitled to a mistrial

because the prosecutor's opening statement improperly stated that law

enforcement received an anonymous tip that implicated him in the robbery and

homicide. He argues the prosecutor committed prosecutorial misconduct and

violated his Sixth Amendment right to confrontation by referring to the

existence of a non-testifying anonymous informant who allegedly implicated

him in the crimes.

      During his opening statement, the prosecutor said:

            So now an investigation begins, right? I mean you have
            a body, they know that the individual, you can tell by
            the wound that the individual was shot with a shotgun,
            and we put out a flyer, we start asking around, and it
            was some time, a few days, before we got a break in the
            case, when an anonymous tip came in about some

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                                      22
            individuals who they believed were involved in this
            crime. And law enforcement followed up on that
            anonymous tip, and it led us to Zach, Alexis . . . , Dave
            Beagell[.]

      The court denied defense counsel's application for a mistrial, determining

that "extreme remedy" was "not necessary or appropriate under these

circumstances."

      Defense counsel requested that the court not advise the jury of his

objection "because that's only going to ring the bell a bit harder." As a result,

the court instructed the jury as follows:      "Ladies and gentlemen you are

reminded that what the attorneys say in their opening statements is not evidence.

The evidence will come from the witnesses and the documents and other

physical items which may be introduced for your consideration."

      In considering the issue of prosecutorial misconduct, we must first

determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999).

Where such misconduct is identified, reversal is not warranted unless the

misconduct is so egregious that it deprived the defendant of a fair trial. State v.

Timmendequas, 161 N.J. 515, 575 (1999).

      During an opening statement, the prosecutor is permitted to refer to the

facts he or she intends in good faith to prove by competent evidence. State v.

Wakefield, 190 N.J. 397, 442 (2007). A prosecutor is given great leeway and is

                                                                          A-2626-15T2
                                       23
allowed to be forceful. State v. Pindale, 249 N.J. Super. 266, 285 (App. Div.

1991).

      Defendant argues that the prosecutor's opening statement violated his

Sixth Amendment right to confrontation. "A defendant's right to confront and

effectively cross-examine the State's witnesses is essential to the due process

right to a 'fair opportunity to defend against the State's accusations,' and is one

of 'the minimum essentials of a fair trial.'" State v. Gilchrist, 381 N.J. Super.

138, 144 (App. Div. 2005) (quoting Chambers v. Mississippi, 410 U.S. 284, 294

(1973)).

            It is well settled that the hearsay rule is not violated
            when a police officer explains the reason he approached
            a suspect or went to the scene of the crime by stating
            that he did so "upon information received."
            [McCormick on Evidence (2d ed. 1972), § 248, p. 587].
            Such testimony has been held to be admissible to show
            that the officer was not acting in an arbitrary manner or
            to explain his subsequent conduct. However, when the
            officer becomes more specific by repeating what some
            other person told him concerning a crime by the
            accused the testimony violates the hearsay rule.
            Moreover, the admission of such testimony violates the
            accused's Sixth Amendment right to be confronted by
            witnesses against him.

            [State v. Bankston, 63 N.J. 263, 268 (1973) (citations
            omitted).]




                                                                          A-2626-15T2
                                       24
      A specific hearsay statement is not required in order to create an

impermissible inference of guilt. State v. Irving, 114 N.J. 427, 446 (1989); State

v. Torres, 313 N.J. Super. 129, 157 (App. Div. 1998). "When the logical

implication to be drawn from [a witness's] testimony leads the jury to believe

that a non-testifying witness has given the police evidence of the accused's guilt,

the testimony should be disallowed as hearsay." Bankston, 63 N.J. at 271; see

also Branch, 182 N.J. at 352 (phrase "based on information received" may be

used by police officers to explain their actions, but only if necessary to rebut a

suggestion that they acted arbitrarily and where use of that phrase does not create

an inference that defendant was implicated in a crime by some unknown person);

State v. Dehart, 430 N.J. Super. 108, 110-11 (2013) (holding it was plain error

for a police officer to provide hearsay testimony explaining why he included

defendant's photograph in a photo array and for the prosecutor to highlight that

testimony in summation). It is the creation of the inference, not the specificity

of the statements made, that determines whether the hearsay rule was violat ed.

Irving, 114 N.J. at 447.      Nevertheless, the erroneous admission of such

testimony is not automatic grounds for reversal, and it may be assessed under

the harmless error standard. Bankston, 63 N.J. at 272-73.




                                                                          A-2626-15T2
                                       25
      "The principle distilled from Bankston and its progeny is that testimony

relating inculpatory information supplied by a co-defendant or other non-

testifying witness identifying the defendant as the perpetrator of a crime

deprives the accused of his or her constitutional rights." State v. Farthing, 331

N.J. Super. 58, 75 (App. Div. 2000); see also Bankston, 63 N.J. at 265, 268

(holding detective violated hearsay rule by testifying that he received

information from an informant that an individual had narcotics in his possession,

and then went to a tavern where he saw and arrested the defendant who fit the

informant's description); State v. Taylor, 350 N.J. Super. 20, 34-35 (App. Div.

2002) (holding that the police officer's statements about what various

unidentified eyewitnesses told the police about the suspect were inadmissible

hearsay because they were offered to elicit accusations against the defendant by

non-testifying witnesses); State v. Thomas, 168 N.J. Super. 10, 13-15 (App. Div.

1979) (reversing defendant's conviction where prosecutor elicited testimony

from detective which led to "inescapable inference" that informant had given

him the defendant's name, leading the jury to believe that the unidentified

informant told the detective that the defendant committed a crime).

      Defendant's reliance on Bankston, Branch, and Dehart is misplaced as all

three are distinguishable on their facts. Unlike in Bankston, Branch, and Dehart,


                                                                         A-2626-15T2
                                      26
defendant is not challenging the admission of hearsay testimony, but rather, is

complaining about the prosecutor's opening statement.         At trial, an officer

testified only that law enforcement received additional information that led to

Pennsylvania, where they sought to speak with defendant, Alexis, and Zach.

The jury was repeatedly told that the prosecutor's opening statement is not

evidence.   The jury is presumed to have understood and followed that

instruction. Feaster, 156 N.J. at 65; T.J.M., 220 N.J. at 237.

      The decision to grant a mistrial rests within the sound discretion of the

trial court. State v. Harris, 181 N.J. 391, 518 (2004). We defer "unless there

[was] a clear showing of mistaken use of discretion by the trial court,"

Greenberg v. Stanley, 30 N.J. 485, 503 (1959), or unless "manifest injustice

would . . . result." LaBrutto, 114 N.J. at 207. The prosecutor's remarks were

not evidentiary, and the jury was so instructed. See T.J.M., 220 N.J. at 237;

Feaster, 156 N.J. at 65. A mistrial was not required after the prosecutor's

opening statement.

                                        V.

      In point V of his brief, defendant argues that even if none of the individual

errors cited in points I through IV above warrant reversal standing alone, the




                                                                          A-2626-15T2
                                       27
cumulative effect of the cited errors warrants reversal and the granting of a new

trial.

         "[A] defendant is entitled to a fair trial but not a perfect one." State v.

Marshall, 123 N.J. 1, 169-70 (1991). It is well recognized that "incidental legal

errors, which creep into the trial but do not prejudice the rights of the accused

or make the proceedings unfair, may [not] be invoked to upset an otherwise

valid" verdict. State v. Orecchio, 16 N.J. 125, 129 (1954). The cumulative error

doctrine requires the granting of a new trial before an impartial jury when legal

errors are either of such a magnitude that defendant has been prejudiced or have

in the aggregate rendered the trial unfair. Ibid.; see also State v. Reddish, 181

N.J. 553, 615 (2004) ("[A]lthough an error or series of errors might not

individually amount to plain error, in combination they can cast sufficient doubt

upon the verdict to warrant reversal.").

         When a defendant raises a claim of cumulative error, the court must assess

whether the defendant received a fair trial by considering "the impact of the trial

errors on defendant's ability fairly to present a defense, and not just excuse error

because of the strength of the State's case." State v. Jenewicz, 193 N.J. 440, 473

(2008).




                                                                           A-2626-15T2
                                         28
       The officer's reference to the fact that defendant was on probation was

improper and could have prejudiced his defense. However, the reference to

probation was fleeting and unprovoked by the prosecutor. The prosecutor's

opening statement reference to an anonymous tip was also not proper. These

errors were not significant to the outcome of the trial.

       Additionally, allowing Alexis to testify in prison garb and failing to

provide a curative jury instruction regarding her appearance was error, but that

error did not prejudice defendant because the witness tampering charge was

dismissed and Alexis did not provide any inculpatory evidence against him on

the other charges. These errors in combination did not deprive defendant of a

fair trial.

                                       VI.

       In point VI of his brief, defendant contends the court erred by imposing

an excessive sentence. He argues that because the court erred "in finding and

weighing aggravating and mitigating factors, particularly in finding aggravating

factor one, a remand for resentencing is required." Additionally, the State

concedes, a "remand is also required because despite only three offenses

remaining after merger, the court mistakenly imposed four sets of monetary

penalties."


                                                                        A-2626-15T2
                                       29
        The court sentenced defendant to a forty-year term of imprisonment under

NERA on the felony murder conviction, after merging the conspiracy,

possession of a weapon for an unlawful purpose and robbery into the felony

murder conviction; a concurrent four-year term on the unlawful possession of a

weapon; and a concurrent seven-year term on the certain persons not to have a

weapon charge.3

        The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1), "[t]he

nature and circumstances of the offense, and the role of the actor therein,

including whether or not it was committed in an especially heinous, cruel, or

depraved manner"; three, N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant

will commit another offense"; six, N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the

defendant's prior criminal record and the seriousness of the offenses of which

he has been convicted"; and nine, N.J.S.A. 2C:44-1(a)(9), "[t]he need for

deterring the defendant and others from violating the law." The court did not

find any mitigating factors and, as a result, determined the aggravating factors

"clearly and convincingly predominate."

        The court explained why it found aggravating factor one:

              The language of [a]ggravating [f]actor [one] says
              including whether or not committed in an especially

3
    Defendant, born in 1989, will become eligible for parole at age fifty-six.
                                                                          A-2626-15T2
                                        30
            heinous, cruel or depraved manner. I don't get that far
            because I do not have to. The circumstances of this
            offense are such that the phrase "senseless murder"
            applies here in spades. . . . There was no reason for [the
            victim] to die alone in a pool of his own blood on the
            floor of this convenience store [sic]. The robbery was
            completed. His shooting was an act of braggadocio. In
            point of fact one of the witnesses said this defendant
            entered the car and said "I shot the motherfucker." . . .
            But whoever shot [the victim] did so senselessly, just
            to be able to get in the car and tell his cohorts "I shot
            the motherfucker. But don't worry, he's not going to
            die, I only shot him in the leg." . . .

            The guy's done, the money's in the pockets. At least
            one of the actual armed robbers has already exited the
            store [sic], when he is shot and dies three days later, as
            a consequence.

      "An appellate court should disturb the sentence imposed by the trial court

only in situations where the sentencing guidelines were not followed, the

aggravating and mitigating factors applied by the trial court are not supported

by the evidence, or applying the guidelines renders a particular sentence clearly

unreasonable." State v. Roach, 146 N.J. 208, 230 (1996).

      "[A]ggravating factor one must be premised upon factors independent of

the elements of the crime and firmly grounded in the record." State v. Fuentes,

217 N.J. 57, 63 (2014); see also State v. O'Donnell, 117 N.J. 210, 215 (1989).

(factor one applied in a manslaughter case because the defendant intentionally

inflicted pain and suffering in addition to causing death); State v. Soto, 340 N.J.

                                                                          A-2626-15T2
                                       31
Super. 47, 71-72 (App. Div. 2001) (factor one applied in an aggravated

manslaughter and felony murder case where the defendant brutally and viciously

attacked the victim).

      Here, the sentencing court improperly considered the "murder" of the

victim in finding aggravating factor one. The court described the murder as

"senseless" and "an act of braggadocio." Defendant, however, was acquitted of

purposeful and knowing murder, and the court therefore admittedly did not know

who fired the fatal shot. Thus, the lack of a reason for the killing should not

have been considered as an aggravating factor. See State v. Rogers, 236 N.J.

Super. 378, 387 (App. Div. 1989) ("Although a defendant may be vicariously

accountable for the crimes his accomplice commits, he is not vicariously

accountable for aggravating factors that are not personal to him.").

      The court also engaged in prohibited "double counting" by considering

the death of the victim as an aggravating factor. A court may not consider one

of the required elements of the offense charged as an aggravating factor. See

State v. Yarbough, 100 N.J. 627, 633 (1985) (facts that the legislature has

incorporated into the Code as part of the original grading of the offense are not

to be weighed as aggravating and mitigating factors to arrive at the appropriate

sentence); see also State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984)


                                                                         A-2626-15T2
                                      32
(where a specific fact is an essential element of a crime, "that element may not

be used as an aggravating factor to impose a custodial sentence that is longer

than the presumptive term or to impose a period of parole ineligibility").

      "It is well-settled that where the death of any individual is an element of

the offense, that fact cannot be used as an aggravating factor for sentencing

purposes." State v. Carey, 168 N.J. 413, 425 (2001). Because defendant was

convicted of felony murder, the fact that the victim died should not have been

considered as an aggravating factor.

      We affirm the convictions, but remand for another sentencing hearing

without consideration of aggravating factor one at which the court should set

appropriate monetary penalties. We do not retain jurisdiction.




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                                       33
