                                NOT FOR PUBLICATION WITHOUT THE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-3772-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT WARREN,

     Defendant-Appellant.
___________________________

                    Argued September 23, 2019 – Decided December 20. 2019

                    Before Judges Fasciale, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 14-09-1558.

                    Elizabeth Cheryl Jarit, Assistant Deputy Public
                    Defender, argued the cause for appellant (Joseph E.
                    Krakora, Public Defender, attorney; Elizabeth Cheryl
                    Jarit of counsel and on the brief).

                    Erin M. Campbell, Assistant Prosecutor, argued the
                    cause for respondent (Esther Suarez, Hudson County
                    Prosecutor, attorney; Alanna M. Jereb on the briefs).

                    Appellant filed a pro se supplemental brief
PER CURIAM

      Defendant Robert Warren appeals his conviction by jury of first-degree

carjacking, N.J.S.A. 2C:15-2 (count one); second-degree burglary, N.J.S.A.

2C:18-2 (count three); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count five); and three counts of third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts six, seven and nine), and his

concomitant sentence.1 In his merits brief, he argues:

            POINT I

            THE ADMISSION OF EXPERT TESTIMONY WHEN
            NOTICE WAS NOT PROVIDED BY THE STATE
            UNTIL MID-WAY THROUGH TRIAL, AND
            WHERE NO REPORT OR SUMMARY OF THE
            PROPOSED TESTIMONY WAS EVER PROVIDED,
            DEPRIVED [DEFENDANT] OF DUE PROCESS, A
            FAIR TRIAL, AND THE OPPORTUNITY TO
            CONFRONT THE WITNESS AGAINST HIM.

            POINT II

            THE OFFICER'S OPINION TESTIMONY THAT HE
            BELIEVED [DEFENDANT'S] CAR MATCHED
            THAT DRIVEN BY ONE OF THE SUSPECTS

1
   Defendant was found not guilty of first-degree robbery, N.J.S.A. 2C:15-1
(count two). "The trial court granted defendant's motion for acquittal of one of
the third-degree aggravated assault charges, N.J.S.A. 2C:12-1(b)(2) (count
eight)." The court merged defendant's conviction for second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).
                                                                        A-3772-16T4
                                       2
VIOLATED N.J.R.E. 701 AND STATE V. MCLEAN,
AND DEPRIVED [DEFENDANT] OF DUE
PROCESS AND A FAIR TRIAL.

POINT III

[DEFENDANT]'S   CONVICTION  MUST   BE
REVERSED BECAUSE ALTHOUGH SEVERAL OF
THE CHARGES WERE BASED ON A THEORY OF
ATTEMPT, ATTEMPT WAS NEVER CORRECTLY
DEFINED FOR THE JURY.

     A. Failure to instruct the jury on the law of
     attempt concerning the carjacking charge
     requires reversal.

     B. Because the court instructed the jury on the
     wrong theory of attempt on three counts of
     aggravated assault, reversal is required.

POINT IV

THE COURT'S IMPROPER CONSIDERATION OF
[DEFENDANT]'S "REFUSAL" TO ADMIT GUILT,
AND THE IMPOSITION OF DISPARATE
SENTENCES, REQUIRE RESENTENCING.

     A. Consideration of the defendant's failure to
     admit guilt in finding aggravating factor three
     violates [defendant]'s rights to remain silent and
     maintain his innocence, and contravenes the
     requirement that the State prove his guilt before
     a jury.

     B. [Defendant]'s twenty-year sentence for
     carjacking is disparate with the fifteen-year
     sentence imposed on his codefendant, requiring
     resentencing.

                                                          A-3772-16T4
                          3
In a pro se supplemental letter brief he adds:

             POINT [I]

             THE TRIAL COURT COMMITTED PLAIN ERROR
             BY FAILING TO CLARIFY THAT A CHARGE OF
             CARJACKING REQUIRES AN INTENT TO STEAL
             THE CAR WHEN THE JURY SPECIFICALLY
             ASKED FOR CLARIFICATION OF THAT POINT
             OVER DEFENSE OBJECTION[.]

             POINT [II]

             THE   CUMULATIVE     ERRORS                 DEPRIVED
             [DEFENDANT] A FAIR TRIAL[.]

      Recognizing that "trial courts are vested with the discretion to fashion an

appropriate sanction for a violation of discovery obligations," State v.

Richardson, 452 N.J. Super. 124, 137 (2017) (citing State v. Dabas, 215 N.J.

114, 141 (2013)), we determine the trial court abused its discretion in allowing

the State's fingerprint expert to testify and reverse.

      The State alleged three of a group of men who were watching television

in a North Bergen apartment left to get food. When they returned, codefendant

Gregory Eady,2—who had earlier approached the three men at a Quik Mart—

and defendant accosted one of three men and forced him at gunpoint into the


2
  Eady pleaded guilty to three counts and was sentenced to an aggregate fifteen-
year State prison sentence, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2
                                                                         A-3772-16T4
                                         4
apartment where others in the group had remained. Some of the group fled.

During the ensuing moments, defendants concertedly held the remaining men in

the apartment at gunpoint, threatened to kill them if they did not reveal the

location of money and marijuana, ransacked the apartment looking for same and,

finding none, ripped a gold chain from a victim's neck. Thereafter, Eady and

defendant saw one of the men who had fled the apartment looking in the

apartment window. When they followed him outside, they came upon another

of the men who had fled, chased him to his car and ordered him out of the car at

gunpoint. The man accelerated and was able to shed defendant and Eady

sequentially as they tried to enter his vehicle from opposite sides. They shot at

him as he fled.

      A detective who later processed the vehicle testified he lifted nine latent

fingerprints. The State's fingerprint expert, Irene Williams, testified that two of

the latent prints—one on the exterior passenger side and the other on the interior

glass edge of a passenger-side window—matched defendant's fingerprints.

      During argument outside the jury's presence on October 13, 2015—the

third day of testimony—defendant's counsel objected to the impending

testimony of the State's fingerprint expert. Defendant's counsel recounted that




                                                                           A-3772-16T4
                                        5
on September 25, 2015,3 the day of the trial call, the State provided a request for

latent fingerprint examination form.4 Defendant's counsel conceded that she had

previously received in discovery

            a report that was prepared by a police officer that
            indicated what the findings were. However, there was
            no comparison or any information such as that put in
            his report. And, for the record, that would be, I believe,
            Officer Vasquez's report. That would be Report
            Number 13. That is what was . . . provided in
            discovery. This other documentation was provided on
            September 25[].

She later explained the report provided in discovery "says that those . . .

fingerprints came back to [defendant]" which the trial court clarified to mean

"that AFIS5 had identified [defendant] as one of the fingerprint matches[.]"

      During the ensuing colloquy with the trial court and assistant prosecutor,


3
  A footnote in defendant's merits brief reasserts that defense counsel did not
receive the latent fingerprint examination until September 25, 2015. The trial
court, however, found that the report was handed over September 21, 2015. The
discrepancy does not affect our review.
4
  Counsel later said, "on September 25[] the State gave two documents call[ed]
requests for latent fingerprint examination and this document, request for latent
fingerprint examination, the State gave that in [c]ourt on September 25[]." Only
one request for latent fingerprint examination form was included in appellant's
appendix. We see no mention in the record or the parties' briefs of a second
report.
5
  AFIS is an acronym for the New Jersey State Police Automated Fingerprint
Identification System.
                                                                           A-3772-16T4
                                        6
defense counsel protested that "Officer Vasquez only prepared a report -- a five[-

]line report . . . he says he confirmed this information," and that "Officer

Vasquez never submitted anything in writing as to the test that he performed."

      The assistant prosecutor retorted that "[t]he State was prepared to offer

the testimony . . . of Detective Mendez[,] not Vasquez . . . [and] [t]hat [defense

counsel] mistakenly identified as . . . the individual who verified the comparison

that was conducted by the AFIS unit." The assistant prosecutor explained:

                    What I mean by that is that there's three . . . steps
            in the process. You have an initial individual who
            reviews the . . . latent fingerprint and . . . compares it to
            the inked fingerprint. You have a second individual
            who is Irene Williams, whose initials are on these
            documents, who then does her own analysis to either
            confirm, verify, or deny the fact that they were these
            . . . number of points.

                  This evidence here, Your Honor, which I'm
            pointing to, which is the request for latent fingerprint
            examination, was provided to defense counsel on
            September [21] and I have an evidence receipt for it.
            So she was not surprised during the trial. This has been
            with her since then.

                    And what Ms. Williams will testify here to today
            in . . . terms of what did she do with the comparison,
            the analysis that . . . took place. And she, once she's
            done, then . . . the packet comes back to North Bergen,
            which is where Detective Mendez did what he did.
            Reviewed it and verified the . . . results.



                                                                            A-3772-16T4
                                         7
                    He didn't have an additional report. He based his
              findings on the reports from AFIS.

        From defense counsel's recollection that during the week prior, she said

she would "not consent to anyone other than the actual person coming in here to

testify," and from the trial court's direction to "the State to get somebody from

AFIS to come here and testify," we deduce the defense objection was based on

the fact that Mendez relied on the AFIS comparison and did not compare

defendant's prints to any known prints, but based his findings on "reports from

AFIS."6 As defense counsel represented, Mendez's short report contained "no

comparison or any information such as that."

        The State, instead of calling Mendez, forwarded defense counsel

Williams's resume on Friday, October 9, 2015. Defendant's counsel objected to

Williams being called as an expert witness because counsel had "no reports,

conclusions, or findings from this witness." Williams admitted during trial that

her office does not "do written reports" which she said were "the responsibility

of the police department" that submitted the fingerprints for analysis.

        The trial court examined the request for latent fingerprint examination

form, confirmed that Williams's initials appeared at the bottom of the form as a


6
    We note neither party included Mendez's report in the record.


                                                                          A-3772-16T4
                                        8
person who conducted the comparison and found the fingerprints of the person

who was linked to defendant's SBI number 7 matched items six and nine on the

report, "[fifty] points on one, [twenty-nine] on the other." The trial court

concluded, although the "report"—the trial court's term for the request for latent

fingerprint examination form—was not turned over until September 21, "there

was not even an issue raised [as] to [its] lateness," and that the "issue was

whether or not the defense was on sufficient notice as to what [Mendez] based

his findings on." The court also found "the State had represented . . . they could

call someone from AFIS" instead of Mendez "because the defense has the

report" which the court believed contained "a discussion as to the number of

matches -- points of comparison." The court's finding that the State opened on

the previous Wednesday, October 7, 2015, that defendant's "fingerprints were

found in the vehicle," led the court to conclude:

                    [C]learly the defense was on notice that
              fingerprints were a critical issue in this case. We
              received two weeks prior to trial the report from the
              State Police matching it to [defendant]. Defense
              certainly has had ample opportunity if they felt the need
              to request an adjournment or . . . certainly to get their
              own expert. I mean, certainly from the inception of this
              case the defense was in possession of documentation
              indicating AFIS had done a positive match.


7
    SBI is an acronym for State Bureau of Identification.
                                                                          A-3772-16T4
                                         9
                   I don't find there's been any unfair surprise and
            there's no prejudice to the defense by the report being
            turned over fourteen days in advance of trial, instead of
            thirty. The information was in . . . the possession of the
            defense well in advance of the trial date.

      Rule 3:13-3(b)(1)(I) requires the State to provide discovery of the

            names and addresses of each person whom the
            prosecutor expects to call to trial as an expert witness,
            the expert's qualifications, the subject matter on which
            the expert is expected to testify, a copy of the report, if
            any, of such expert witness, or if no report is prepared,
            a statement of the facts and opinions to which the expert
            is expected to testify and a summary of the grounds for
            each opinion. Except as otherwise provided in R. 3:10-
            3, if this information is not furnished 30 days in
            advance of trial, the expert witness may, upon
            application by the defendant, be barred from testifying
            at trial.

      It is abundantly clear from the record that Williams never prepared a

report that complied with the Rule, an objection lodged early and often by

defendant's counsel. Indeed, in the sidebar that took place on October 8, 2015,

during the testimony of the detective who lifted the latent prints, the assistant

prosecutor admitted State Police personnel told him they do not testify. The

State, therefore, planned to call Mendez. The assistant prosecutor explained:

                   So, [Mendez] from the North Bergen Police
            Department is going to be testifying as to his
            verification on . . . these results. So, two different
            people had the State Police examine the fingerprints.


                                                                            A-3772-16T4
                                       10
                    First round is in Totowa. The second round is in
             Ewing. Once they obtain the match they send it back
             to the municipality for the local [police department] to
             do the verification of fingerprints. They . . . review it.
             They determine whether or not there's a match. And
             that's why I'm offering him as the expert to testify.

When the assistant prosecutor said Mendez did "his own independent

comparison," defendant's counsel protested that the State "never gave anything

that you're calling anybody as an expert." The trial court ended the discussion

by simply directing cross-examination of the detective on the stand resume.

      The discussion resumed on the next trial day, five days later. Defendant's

counsel renewed her objection after Williams was revealed as the State's expert,

explaining

             [t]here's nothing for me to cross-examine on, because
             there's no reports. What [I did] receive is the AFIS hit
             back on September 21[], which indicates . . . how many
             points were done. There's . . . [n]o report that says this
             is what was done. This is how it was analyzed or
             anything.

Because counsel had "nothing from her, except something with I.W. written on

the bottom," counsel requested a N.J.R.E. 104 hearing to inquire of Williams,

before she testified, if she did "any independent review of the raw data and what

her conclusions were."




                                                                          A-3772-16T4
                                        11
      After the trial court declined that request, Williams testified to much more

than was in the request for latent fingerprint examination. The expert first

explained the first stage of her process—minutiae plotting—where each latent

print submitted by the agency for analysis is examined under a magnifying glass

to ensure that it is suitable for entry into the AFIS system.        At least ten

characteristics or points that distinguish one fingerprint from another—

bifurcations, dots, short ridges and enclosures—must be identified in order for

a print to be suitable for entry. Once identified, the points are plotted on the

scanned latent print.

      Williams explained once the suitable print was entered into the AFIS

database,

            it goes through a system called matching. And what
            these matchers do, based on algorithms . . . it will take
            into consideration the placement of those minutiae
            points that we plotted, and it will go through hundreds
            of thousands of possible matches, and it'll give us
            twenty-five, possible, for each lift that we enter.

      The next step, described by Williams as the verification part, entails the

expert, "manually[—]with [his or her] eye and [a] magnifying glass"—to

compare the identified points on the print returned by AFIS, which is attended

by an assigned SBI number, to points in the same location on the latent print

until at least ten matches are found. She continued, a card in "another system

                                                                          A-3772-16T4
                                      12
called FARS" associated with the SBI number is printed; the expert then

"highlight[s] the [f]inger [n]umber that we hit on."

      Williams testified that she rechecks the work of her subordinates who

initially review the prints, "whether it's a hit or not," and verifies their work. On

cross-examination, she said she reviewed only those lifts and candidate prints

that her subordinate said matched.

      On direct examination, she reviewed the two latent prints lifted from the

victim's vehicle and compared them to the print the computer program identified

as one of the twenty-five possible candidates, narrowed by the finger number

linked to the SBI number. She reviewed each of the points on each of the two

latent prints and candidate prints shown side-by-side, describing to the jury each

short ridge, ending ridge, enclosure and bifurcation she said matched. Based on

those comparisons, she opined each of the latent prints matched defendant's

known prints.

      In considering whether the trial court abused its discretion in allowing

Williams to testify and refusing defense counsel's entreaty to examine the expert

during a preliminary hearing, N.J.R.E. 104, we review the "[f]actors that should

result in permitting the expert to testify[,] includ[ing] '(1) the absence of any

design to mislead, (2) the absence of the element of surprise if the evidence is


                                                                             A-3772-16T4
                                        13
admitted and (3) the absence of prejudice which would result from the admission

of evidence.'" State v. Washington, 453 N.J. Super. 164, 191 (App. Div. 2018)

(first alteration in original) (quoting State v. LaBrutto, 114 N.J. 187, 205

(1989)).

      We do not agree with the trial court that discovery provided to defendant

obviated any surprise because it revealed defendant's prints were matched to

those lifted from the victim's vehicle, and that defendant had enough time to

retain his own expert. Nothing in the record demonstrates that the discovery

provided anything except a conclusion regarding the matched prints. As the trial

court found, the discovery revealed "AFIS had identified [defendant] as one of

the fingerprint matches." Nothing provided in discovery, however, contained

the basis for that conclusion. The methods employed in comparing the prints,

as testified by Williams, were not included in the discovery.

      We have consistently recognized the importance of providing an expert's

analysis to the defense in advance of trial.      In State v. Berezansky, we

determined the State's failure to provide the defendant with the laboratory

analysis in connection with a blood alcohol test deprived the defendant an

adequate opportunity to challenge the results. 386 N.J. Super. 84, 94-95 (App.

Div. 2006). In State v. Heisler, construing the notice and demand provisions of


                                                                        A-3772-16T4
                                      14
N.J.S.A. 2C:35-19,8 we ruled the time period for a defendant to object to a State-

proffered notice of intent (NOI) to offer into evidence a laboratory certificate

regarding the quantity and quality of drugs, runs not from the date the State

tenders the NOI, but from the date it provides the data supporting the NOI. 422

N.J. Super. 399, 422 (App. Div. 2011). We observed, "if the defendant is unable

to determine, because of the absence of laboratory data, whether there is a basis

to wage a 'true contest' over the nature of the substance, then the defendant may

lodge a protective objection," noting the Legislature's goals in enacting the

statute, including enabling "defendants to make informed decisions regarding

whether to object," id. at 416-17, would be undermined by such a practice, id.

at 422. And we have prohibited the use of net opinions, those without the whys

and wherefores of the expert's conclusion. Quail v. Shop-Rite Supermarkets,


8
    N.J.S.A. 2C:35-19(c) states:

              Whenever a party intends to proffer in a criminal or
              quasi-criminal proceeding, a certificate executed
              pursuant to this section, notice of an intent to proffer
              that certificate and all reports relating to the analysis in
              question, including a copy of the certificate, shall be
              conveyed to the opposing party or parties at least 20
              days before the proceeding begins. An opposing party
              who intends to object to the admission into evidence of
              a certificate shall give notice of objection and the
              grounds for the objection within 10 days upon receiving
              the adversary's notice of intent to proffer the certificate.
                                                                             A-3772-16T4
                                          15
Inc., 455 N.J. Super. 118, 132 (App. Div. 2018) ("The doctrine barring the

admission at trial of net opinions is a 'corollary of [N.J.R.E. 703] . . . which

forbids the admission into evidence of an expert's conclusions that are not

supported by factual evidence or other data.'" (alterations in original) (quoting

Townsend v. Pierre, 221 N.J. 36, 53-54 (2015))).

      We note defense counsel conceded Detective Mendez's report, included

with timely-provided discovery, disclosed that "fingerprints came back to"

defendant, and that the request for latent fingerprint examination form, not

provided until September 21, 2015, listed eight item numbers, the location where

each was found in the victim's vehicle, candidate SBI numbers, finger numbers

and what seems like the number of points found by an unknown examiner or

database. Those documents, however, did not provide defendant with the length

and breadth of information Williams testified to justifying her conclusion that

the prints matched. That testimony—previously undisclosed—engendered the

surprise element decried by the LaBrutto Court. 114 N.J. at 205.

      Mendez's report, as the trial court found, simply reported the AFIS results.

And, as we noted, there are only eight items listed on the request for latent

fingerprint examination form. The detective said he lifted nine prints. Item six

lists two fingers, numbers three and four, and notes "pass[enger] door ext[erior]


                                                                          A-3772-16T4
                                      16
panel" in the comment section. The SBI number related to that entry does not

match either SBI number listed next to items four and five which are the only

entries associated with "pass[enger] door ext[erior] glass"; we do not see an

entry for a print found on the interior glass of the passenger-side door.

      Moreover, without the detailed analysis testified to by Williams,

defendant and his counsel were not in a position to intelligently decide whether

a defense expert was required or, if one was, to discuss the basis for the State's

expert's opinion with his own expert. Further, until Williams testified, defendant

was unaware that Williams did not analyze every print reviewed by her

subordinate, or that a subordinate had performed an analysis. Defendant did not

have an opportunity to explore the difference between the points listed in the

request for latent fingerprint examination form and the reduced number testified

to by Williams. As defense counsel said during her lengthy and strenuous

objection prior to Williams taking the stand, "[t]here's nothing for me to cross -

examine on, because there's no report . . . that says . . . what was done[;] that is,

how it was analyzed[.]"

       With the benefit of Williams's analysis, transcribed from her trial

testimony, defendant proffered in his merits brief some of the areas that could

have been explored on cross-examination if the basis for Williams's testimony


                                                                             A-3772-16T4
                                        17
was disclosed in a report or N.J.R.E. 104 hearing, including adherence to

forensic fingerprint examination standards requiring blind verification of

previously obtained results and documentation of the steps taken when

conducting the examination. 9

      As the State conceded in its merits brief, only one of the victims identified

defendant as a perpetrator; three victims were unable to identify defendant as

one of the two criminals, and their descriptions were either general or did not

match defendant.         Considering the divergent eyewitness-identification

testimony relating to defendant, the fingerprint identification of defendant was

key to the State's case, as evidenced by the State's summation. Recognizing the

vulnerability of the eyewitness identifications, the assistant prosecutor

characterized the fingerprint evidence as "the one indisputable fact in this case,"

and "the defining moment" upon which the jury should find defendant guilty.

        We determine the State's failure to provide the expert's report prejudiced

defendant, recognizing "'[p]rejudice' in this context refers not to the impact of


9
   We do not offer any opinion on the propriety of all standards defendant
contends were violated, noting only those that we discern could have been used
to cross-examine Williams during the defendant's trial. We leave evidentiary
rulings to the trial judge, to be made in the context of any future trial. See State
v. Green, 236 N.J. 71, 80-81 (2018) ("[T]he admissibility of evidence at trial is
left to 'the sound discretion of the trial court.'" (quoting State v. Willis, 225 N.J.
85, 96 (2016))).
                                                                              A-3772-16T4
                                        18
the testimony itself, but the aggrieved party's inability to contest the testimony

because of late notice." Washington, 453 N.J. Super. at 191 (quoting Heisler,

422 N.J. Super. at 415.)

      Although we do not ascertain that the State set out to mislead defendant,

the assistant prosecutor admitted to the trial court that the State intended to call

Detective Mendez as its fingerprint expert. The trial court recalled that when

defendant raised an issue about the sufficiency of the notice provided regarding

Mendez's findings, "the State had said, and this may have been in chambers, but

the State had represented . . . they could call someone from AFIS instead,

because the defense has the [request for latent fingerprint examination form]."

The assistant prosecutor had previously told the trial court that he was advised

"the New Jersey State Police . . . said they don't testify." It is apparent, therefore,

that the State did not initially intend to call Williams as its expert. While there

is no evidence that the State intended to mislead the defense, its sudden change

of plans resulted in its failure to provide Williams's report.

      Considering the tripartite LaBrutto factors, we conclude the trial court

abused its discretion by allowing the State to present Williams's testimony

without providing any report, especially after denying defense counsel an

opportunity to learn the basis for Williams's opinions at an immediate N.J.R.E.


                                                                               A-3772-16T4
                                         19
104 hearing, which did not, in itself, require a continuance beyond the length of

the hearing that could have taken place that day. See Washington, 453 N.J.

Super. at 190-91. As such, we are constrained to reverse and remand this matter

for a new trial. In light of the possibility of that trial, we offer the following

comments regarding some of the issues raised during the last trial.

      As to the use by Williams of the AFIS report, we note our prior holding

that "hearsay statements upon which an expert relies are admissible, not for

establishing the truth of their contents, but to apprise the jury of the basis of the

opinion reached." State v. Humanik, 199 N.J. Super. 283, 305 (App. Div. 1985).

We also note that the trial court sustained defendant's objection to Willi ams's

testimony that her subordinate found more points of comparison than she, but

the court did not strike that testimony. It should have so the jury knew it could

not consider that testimony in its deliberations.

      We also caution against the State eliciting a law enforcement officer's

testimony that a car viewed on a surveillance video "matched the description of

the . . . vehicle that was involved in the incident," or that a detective observed

defendant driving a vehicle "similar" to that seen on the video. The detective,

testifying as a lay witness, could identify vehicles in still photographs or video

based on his perceptions, see State v. McLean, 205 N.J. 438, 459 (2011), but he


                                                                             A-3772-16T4
                                        20
is in no better position than the jury to compare depictions of vehicles than

jurors, see id. at 462. Matters "within the competence of the jury" are for the

collective wisdom of the jury to assess. See State v. Sowell, 213 N.J. 89, 99

(2013).

      Although the model jury charge for carjacking does not explicitly require

the trial court to include the definition of attempt, see Model Jury Charges

(Criminal), "Carjacking (N.J.S.A. 2C:15-2)" (rev. June 13, 2005), the better

course would be to provide the attempt instruction because this case involved

the perpetrators' "attempt to commit an unlawful taking of a motor vehicle,"

N.J.S.A. 2C:15-2(a), not a completed theft. See State v. Gonzalez, 318 N.J.

Super. 527, 535-37 (App. Div. 1999). An accurate instruction on this material

portion of the carjacking statute would provide a better roadmap for the jury in

its deliberations. Id. at 535.

      We also agree with defendant that the trial court should have instructed

the jury using the substantial step portion of the attempt jury charge in

connection with the aggravated assault counts. 10 For those counts where the



10
    As we described by State v. Condon, there are three types of attempt
recognized by statute:



                                                                        A-3772-16T4
                                      21
State contends the aggravated assault was not completed, the substantial step

instruction is appropriate. Condon, 391 N.J. Super. at 617.

      Finally, we have previously warned against the use of a defendant's refusal

to admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514,

540 (App. Div. 1985) (noting our "view that a defendant's refusal to

acknowledge guilt following a conviction is generally not a germane factor in

the sentencing decision"). We note, however, that when a defendant fails to take

responsibility in the context of an underlying factor of a crime, it may be used

to find an aggravating factor. See State v. Carey, 168 N.J. 413, 426-27 (2001)

(holding a trial court's finding that defendant was a risk to commit another

offense, N.J.S.A. 2C:44-1(a)(3), was supported by the defendant's letter in



            The first category, [impossibility,] . . . is "where the
            criminal act is complete but for the attendant
            circumstances which did not coincide with the actor's
            reasonable belief"; the second, [when causing a
            particular result is an element of the crime,] . . . is
            "where the criminal act is very nearly complete and
            requires one more step either beyond the actor's control
            or not requiring his control for completion"; and the
            third, [substantial step,] . . . is "where the actor has
            taken a substantial step toward commission of a crime."

            [391 N.J. Super. 609, 615-616 (App. Div. 2007)
            (citations omitted) (quoting Cannel, N.J. Criminal Code
            Annotated, comment 2 on N.J.S.A. 2C:5-1 (2006)).]


                                                                         A-3772-16T4
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which he "expresse[d] remorse, but [did] not directly accept responsibility for

the crash or admit that he ha[d] a problem of drinking and driving").

      In light of our decision, we need not address defendant's remaining

arguments.   Reversed and remanded for proceedings consistent with this

opinion. We do not retain jurisdiction.




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