                                NOT FOR PUBLICATION WITHOUT THE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-3880-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN S. JAMES, a/k/a
JOHNATHAN JAMES,

     Defendant-Appellant.
____________________________

                    Argued August 13, 2019 – Decided September 18, 2019

                    Before Judges Messano and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 12-09-0683.

                    James K. Smith, Jr., Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; James K. Smith, Jr., of
                    counsel and on the briefs).

                    Meredith L. Balo, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Lyndsay V. Ruotolo, Acting Union
                    County Prosecutor, attorney; Meredith L. Balo, of
                    counsel and on the brief).
PER CURIAM

      A jury convicted defendant Jonathan James of the first-degree murder of

Orlando Hernandez, first-degree attempted murder of Antonio Hernandez, and

related weapons offenses.       The judge imposed a thirty-year term of

imprisonment with thirty-years of parole ineligibility on the murder conviction,

and a consecutive thirteen-year term of imprisonment with an eighty-five

percent period of parole ineligibility on the attempted murder conviction. 1

Before us, defendant raises the following points for our consideration:

            POINT I

            DEFENDANT WAS DENIED A FAIR TRIAL WHEN
            THE JUDGE ALLOWED THE STATE TO PRESENT
            AN EXPERT'S OPINION THAT DEFENDANT
            COULD NOT BE EXCLUDED AS THE SOURCE OF
            THE DNA ON THE HAMMER OF THE GUN AND
            THAT ONLY ONE[-]IN[-EIGHTEEN] AFRICAN-
            AMERICANS WOULD HAVE THE SAME
            GENOTYPE, BECAUSE THOSE CONCLUSIONS
            WERE ADMITTEDLY BASED UPON A PARTIAL
            DNA PROFILE WITH "LOW[-]LEVEL" RESULTS,
            AND   SUPPORTED    BY   A   STATISTICAL
            ANALYSIS[,] WHICH ASSUMED THAT NONE OF
            THE [TWENTY-SIX] MISSING ALLELES WOULD



1
  After merging one of the convictions on the weapons offenses, the ju dge
imposed a concurrent sentence on the other.



                                                                          A-3880-16T2
                                       2
              BE   INCONSISTENT              WITH   DEFENDANT'S
              PROFILE.[2]

              POINT II

              IN IMPOSING A CONSECUTIVE SENTENCE FOR
              ATTEMPTED MURDER, THE JUDGE FAILED TO
              PROPERLY APPLY THE YARBOUGH[3] FACTORS
              OR TO CONSIDER TESTIMONY[,] WHICH
              SUGGESTED THAT THE SHOOTER WAS ONLY
              ATTEMPTING TO HARM ONE INDIVIDUAL.

Having considered these arguments in light of the record and applicable legal

standards, we affirm.

                                        I.

        Late in the evening of March 23, 2012, Antonio 4 and a male and female

acquaintance were standing on a sidewalk in front of a housing complex in

Elizabeth. Orlando, who Antonio knew, approached, and the two men greeted

each other with a hug. At that point, several shots rang out, and everyone ran.

Bullets struck Antonio in the arm and lower back. At the time, he did not know

Orlando was fatally wounded by a gunshot to the head. Antonio described the


2
    We have eliminated the sub- and sub-sub-point headings in defendant's brief.
3
    State v. Yarbough, 100 N.J. 627 (1985).
4
  To avoid confusion, we use the first names of the two victims. We intend no
disrespect by this informality.


                                                                         A-3880-16T2
                                        3
shooter standing behind Orlando as "possibly . . . African-American" and

wearing a "dark-colored sweater[,]" but otherwise he could not identify the

man.5

        Elizabeth Police Officers Jose Montilla and Rony Cruz were on patrol

when they heard shots fired. As Montilla exited his police car, he saw people

running. "[A] tall [b]lack male" wearing a "dark-colored top, sweater, with

jeans" ran toward Montilla. Montilla ordered the man to stop, but he ignored

the command, and Montilla gave chase. When the man ran down the driveway

of a house, Montilla stopped and "could hear [the man] going through the

backyards." Montilla broadcasted the direction of flight, telling other officers

near the scene "where . . . [the man] was going to come out if he was to continue

running." The jury heard taped recordings of the police broadcasts.

        Detective Jose Martinez saw defendant "running from in between two

houses[,]" apprehended him, and asked for assistance from any officer who

could identify the suspect. Montilla responded and identified defendant as the

person he had earlier chased. Defendant now wore a white t-shirt and had a car


5
   Minutes earlier, Orlando had approached a disinterested citizen who lived
close by and asked for money. This man saw Orlando walk toward Antonio and
his friends and saw an unidentified man approach the group and start firing. The
jury saw surveillance camera footage of portions of the incident. The video is
not part of the appellate record.
                                                                         A-3880-16T2
                                       4
key, along with other keys, in his pocket. Martinez searched the area and found

"a black sweatshirt on the ground" near a stockade fence where he had seen

defendant running. Another police officer found defendant's wallet in one of

the backyards, and Cruz found a .32 caliber revolver on the front lawn of one of

the nearby homes. Subsequent ballistic testing revealed the gun fired the shot

that killed Orlando and wounded Antonio, and that one of the unfired cartridges

demonstrated a "'light' primer strike," i.e., signifying the "firing pin struck the

primer" but with insufficient force "to actually fire the cartridge."

      After his arrest, defendant and Alexis Feliciano were housed in the same

area of the Union County Jail, discussing what charges each faced. Feliciano

saw a copy of defendant's criminal complaint, and told him that he knew

Orlando, having grown up with his family, and Antonio, who Feliciano knew

from "seeing him around." Defendant explained to Feliciano that he drove by

the group of people, saw Antonio, parked his car, walked toward him, and fired.

Defendant told Feliciano he did not plan to shoot Orlando but did "because he

was there." Defendant said the .32 caliber gun "jammed," and he threw it away

before police apprehended him.

      While in custody the morning after his arrest, defendant also called his

sister in Hillside. He told her where he had parked the family car in Elizabeth


                                                                           A-3880-16T2
                                         5
and asked her to retrieve it. The car was parked on the same street where the

murder occurred.

      The sweatshirt police found near the fence contained DNA evidence on

its left cuff. The State's expert, Monica Ghannam, an employee of the Union

County Prosecutor's Office (UCPO) Forensic Laboratory, opined defendant was

a major contributor to this DNA, and the probability of randomly selecting

someone in the African-American population with the same DNA profile was 1-

in-690 quintillion. In addition, as we describe in more detail below, Ghannam

obtained a "low level" of DNA evidence from the hammer of the revolver. She

opined that defendant could not be excluded as a contributor to the sample, and

the probability of randomly selecting a member of the African-American

population with a similar DNA profile, the random match probability (RMP),

was one-in-eighteen.

      Defendant did not call any witnesses or testify.

                                       II.

      Defendant moved to preclude the State from introducing evidence of the

RMP with respect to the DNA found on the gun. The judge held a hearing

outside the presence of the jury pursuant to N.J.R.E. 104(a), at which Dr. Norah




                                                                        A-3880-16T2
                                       6
Rudin, Ph.D., a forensic DNA consultant, testified by video for defendant, and

Ghannam testified for the State.

        Ghannam explained the basic "allelic ladder," and that an individual has

"two results" at fifteen areas or loci targeted by her testing. In this case,

Ghannam obtained results at "four loci" that were consistent with defendant's

DNA, but at each site she was able to retrieve only one side of the allelic ladder.

These led her to conclude that the sample was consistent with a single

contributor, and "defendant could not be excluded" as a contributor to the

sample.

        Ghannam explained the "2p" "statistical tool," which serves as "the basis

for . . . [RMP.]" She acknowledge limitations on the calculation if only one of

the two DNA types at any loci were known. Ghannam explained that the 2p

method did not permit her to make any "assumptions" regarding the missing

type.

        Regarding the DNA samples obtained from the hammer of the murder

weapon, Ghannam acknowledged they were "low[-]level" readings, above her

laboratory's "analytic threshold" but below "the stochastic threshold."6 As a


6
  Ghannam explained that these thresholds were "mandated . . . by the different
guidelines" generally applicable to laboratories doing DNA analysis. In 2012,


                                                                           A-3880-16T2
                                        7
result, although the "2p [analysis was] still valid[,]" Ghannam acknowledged

she was "treat[ing] our interpretation very cautiously and very conservatively."

        Rudin explained that Ghannam's analysis did not consider the "probability

of drop[]out" on the missing alleles, meaning there was no ability to "negatively

weight" and account for the other half of the allele being inconsistent with

defendant's DNA. Rudin explained that laboratories were moving toward more

rigorous analyses to account for allele dropout, and opined that the UCPO

laboratory's continued use of "the 2p statistic" was "out of date and archaic,"

and "r[a]n the risk of a false inclusion." She noted that even when Ghannam

conducted her testing in 2012, scholars questioned the failure to account for

"false inclusion." When asked about the "value" of Ghannam's RMP, Rudin

stated that was "ultimately . . . for . . . the trier of fact to determine." 7




when she performed her analysis, the UCPO laboratory's "analytical threshold"
was "70 RFU," or "relative fluorescent units." Ghannam would not "interpret
[results] below that threshold in any manner." At the time of her analysis, the
laboratory used a "stochastic threshold" of "300 RFU." Rudin described this as
a "threshold below which we're not sure we're detecting all the information."
She acknowledged that "the RFU stochastic threshold should be 200 to 250."
Three-hundred RFU exceeded the minimum values for a stochastic threshold.
Ghannam testified that a result falling between the two thresholds was a "low-
level sample."
7
    As noted, Rudin did not testify before the jury.
                                                                                 A-3880-16T2
                                            8
      In a comprehensive oral decision, the judge noted both Ghannam and

Rudin recognized an authoritative treatise, which in turn explained that "[e]ven

if results [were] obtained from only a few . . . loci, th[e] information may provide

ample assistance to either include or exclude the suspect and therefore aid in

resolving the case." The judge pointed out that Rudin erroneously construed

some passages in the treatise, and concluded Ghannam's explanation of how to

account for "allele drop[]out" was "more plausible."

      Citing federal, sister state, and New Jersey precedent, the judge

considered whether there was a threshold of RMP values below which he should

exclude the evidence. He noted that the jury could comprehend the significance

of "the vast difference between the statistics with regard to the DNA on the

sweatshirt and that found on the gun[.]" The judge concluded the evidence was

admissible.

      Before us, defendant contends the judge erred because Ghannam's

"[u]nderlying [m]ethodology [w]as [n]ot [r]eliable" or "[g]enerally [a]ccepted

[i]n [t]he [s]cientific [c]ommunity[.]"      He argues the judge admitted the

evidence based upon the jury's capability of understanding the RMP rather than

analyzing whether the "very limited information" Ghannam developed from the

actual sample warranted admission of the RMP. Additionally, defendant argues


                                                                            A-3880-16T2
                                         9
that even if the evidence was admissible pursuant to N.J.R.E. 702, its probative

value was outweighed by its prejudicial value, and the judge should have

excluded it under N.J.R.E. 403. We disagree.

      To satisfy N.J.R.E. 702,

            the proponent of expert evidence must establish three
            things: (1) the subject matter of the testimony must be
            "beyond the ken of the average juror"; (2) the field of
            inquiry "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"
            testimony.

            [State v. J.L.G., 234 N.J. 265, 280 (2018) (quoting State
            v. Kelly, 97 N.J. 178, 208 (1984)).]

Defendant does not argue that Ghannam's testimony failed to satisfy the first

and third prongs of the test. In criminal cases, as to reliability, "[t]he test

requires trial judges to determine whether the science underlying the proposed

expert testimony has 'gained general acceptance in the particular field in which

it belongs.'" Ibid. (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.

1923)).

      Here, both Ghannam and Rudin acknowledged that among DNA

professionals, when Ghannam analyzed the samples from the gun hammer in

2012, the 2p statistical analysis was a recognized method for computing RMP.



                                                                           A-3880-16T2
                                        10
At oral argument before us, defendant acknowledged he was not challenging the

scientific methodology behind 2p.

      Nor does defendant argue that Ghannam's one-in-eighteen RMP is so

statistically insignificant as to render it irrelevant. "[C]ourts have been reluctant

to enunciate a threshold that delineates the level of statistical significance

required for DNA evidence to be admissible." United States v. Graves, 465 F.

Supp. 2d 450, 458 (E.D. Pa. 2006) (citing United States v. Morrow, 374 F.

Supp. 2d 51, 65 (D.D.C. 2005)). "DNA evidence of low statistical value is

probative to show that a defendant cannot be excluded as a contributor to the

DNA sample." Ibid. (citing Morrow, 374 F. Supp. 2d at 65). And, as we have

noted in other contexts, evidence that "defendant cannot be ruled out" as one

who possessed the murder weapon is relevant evidence for the jury to consider,

along with the other proofs adduced at trial. State v. Calleia, 414 N.J. Super.

125, 150–51 (App. Div. 2010), rev'd on other grounds, 206 N.J. 274 (2011).

      Rather, as we understand it, defendant argues Ghannam's opinions relied

upon such limited facts, i.e., four partial alleles, and failed to account for the

negative weight of allele dropout, or the possibility that missing values on the

four loci could eliminate defendant as the source of the DNA material . As a

result, her opinion regarding RMP was neither "reliable nor probative."


                                                                             A-3880-16T2
                                        11
      N.J.R.E. 703 provides that "[t]he facts or data" that an expert relies on "in

forming opinions or inferences upon the subject" need "not be admissible in

evidence" if "of a type reasonably relied upon by experts in [a] particular

field[.]" "The corollary of that rule is the net opinion rule, which forbids the

admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006).

However, "an expert's testimony may [also] be termed a 'net opinion' when the

data on which it is based is perceived as insufficient, [or] unreliable[.]" Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E. 703

(2019); see, e.g., Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super.

289, 300 (App. Div. 1990) (noting that under the "net opinion rule[,]" "expert

testimony is excluded if it is based merely on unfounded speculation and

unqualified possibilities.").

      In this case, Ghannam did not base her opinions upon unfounded

speculation, nor did she fail to explain alternative factual assumptions that

would lead to other possibilities contradicting her conclusions. In other words,

the underlying facts supporting Ghannam's one-in-eighteen RPM were fully

exposed, both to the judge in the N.J.R.E. 104 hearing, and ultimately the jury,

as were the weaknesses and limitations of those factual underpinnings. We


                                                                           A-3880-16T2
                                       12
cannot conclude that the inherent limits of the DNA sample on the hammer of

the gun were such as to render inadmissible any expert opinion about defendant's

status as a possible contributor or the RPM.

      Obviously, once admitted, the jury must decide whether the expert's

opinion has sufficient factual support, and, if it not, the jury is justified in

rejecting the opinion. State v. Atwater, 400 N.J. Super. 319, 334 (App. Div.

2008). In this case, the jury was properly charged regarding that proposition

and its sole fact-finding function as to all the expert testimony in the case.

      We also disagree with defendant's claim that the judge improperly

weighed the probative value of the evidence against its prejudicial effect.

N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative

value is substantially outweighed by the risk of . . . undue prejudice, confusion

of issues, or misleading the jury[.]" (Emphasis added). In Morrow, the federal

district court concluded that the trial court's "careful oversight" ameliorate d the

"potential prejudice of the DNA evidence . . . to the point where [its] probative

value outweighs it[,]" making the admission of "DNA evidence of a low

statistical significance . . . proper under a [Federal Rules of Evidence] 403 [8]


8
 The language of F.R.E. 403 is nearly identical to N.J.R.E. 403: "The court
may exclude relevant evidence if its probative value is substantially outweighed


                                                                            A-3880-16T2
                                        13
analysis." 374 F. Supp. 2d at 66 (quoting United States v. Chischilly, 30 F.3d

1144, 1158 (9th Cir. 1994)). Here, the judge's repeated instructions to the jury

regarding Ghannam's and the other experts' testimony fully ameliorated any

prejudice. Additionally, defense counsel's closing argument highlighted for the

jury the intrinsic limitations on Ghannam's opinion regarding the RPM.

      Finally, even if we are mistaken, and the judge should have excluded

Ghannam's opinion about the DNA material on the hammer of the gun, we

cannot say its admission requires reversal. As the Court has recently explained,

the erroneous admission of expert testimony may nonetheless be "harmless

unless, in light of the record as a whole, there is a 'possibility that it led to an

unjust verdict' — that is, a possibility 'sufficient to raise a reasonable doubt' that

'the error led the jury to a result it otherwise might not have reached.'" J.L.G.,

234 N.J. at 306 (quoting State v. Macon, 57 N.J. 325, 335-36 (1971)). We may

consider whether the error is "harmless in light of the overwhelming evidence

of defendant's guilt." Ibid.

      In this case, the State's evidence was indeed overwhelming.                    A

disinterested citizen described the shooting. Defendant refused to heed a police




by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury . . . ."
                                                                              A-3880-16T2
                                         14
command to stop as he ran from the scene, discarding the murder weapon and

his outer garment along the route, where defendant's wallet was also found.

Defendant's DNA was on the sleeve of that outer garment, and defendant

admitted the murder to a jailhouse informant. Defendant called his sister the

day after the murder and told her to move the family car parked on the street

where the homicide occurred. When viewed in this context, Ghannam's opinion

regarding RMP on the murder weapon, admittedly limited by the expert herself,

was harmless beyond a reasonable doubt.

      We affirm defendant's convictions.

                                      III.

      Defendant challenges the judge's decision to impose consecutive

sentences. He contends the judge improperly weighed the Yarbough factors,

particularly since the murder of Orlando and the shooting of Antonio "were not

predominantly independent of each other."

      Our "review of the length of a sentence is limited." State v. Miller, 205

N.J. 109, 127 (2011).

            The appellate court must affirm the sentence unless (1)
            the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the

                                                                       A-3880-16T2
                                      15
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
             original) (quoting State v. Roth, 95 N.J. 334, 364–65
             (1984)).]

Furthermore, "trial judges have discretion to decide if sentences should run

concurrently or consecutively." Miller, 205 N.J. at 128. See N.J.S.A. 2C:44-

5(a). "When a sentencing court properly evaluates the Yarbough factors9 in light



9
    The Yarbough factors are:

             (1) there can be no free crimes in a system for which
             the punishment shall fit the crime;

             (2) the reasons for imposing either a consecutive or
             concurrent sentence should be separately stated in the
             sentencing decision;

             (3) some reasons to be considered by the sentencing
             court should include facts relating to the crimes,
             including whether or not:

                   (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


                                                                        A-3880-16T2
                                       16
of the record, the court's decision will not normally be disturbed on appeal." Id.

at 129.

      The judge fully explained his reasons for imposing consecutive sentences,

noting that defendant fired "at least three shots" toward a group of people, hitting

"separate victims." The judge found defendant committed "separate acts of

violence, notwithstanding the proximity of the timing of the acts."




                   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;

            (4) there should be no double counting of aggravating
            factors;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense[.]

            [Yarbough, 100 N.J. at 643-44 (1985).]

A sixth factor, imposing "an overall outer limit" on consecutive sentences, was
superseded by legislative action. See State v. Eisenman, 153 N.J. 462, 478
(1998).


                                                                            A-3880-16T2
                                        17
      We find no reason to disturb the judge's exercise of his broad discretion

in fashioning the appropriate sentence in this case.

      Affirmed.




                                                                       A-3880-16T2
                                       18
