                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2214-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SAEED COUSAR, a/k/a SAEED
MCCALL, MUSA S. COUSAR,
and BRIAN PRICE,

     Defendant-Appellant.
___________________________

                   Argued September 23, 2019 – Decided December 4, 2019

                   Before Judges Sumners, Geiger, and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 14-02-
                   0111.

                   Tamar Yael Lerer, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Tamar Yael Lerer, of
                   counsel and on the briefs).

                   Paul Henry Heinzel, Assistant Prosecutor, argued the
                   cause for respondent (Michael H. Robertson, Somerset
               County Prosecutor, attorney; Paul Henry Heinzel, of
               counsel and on the brief).

PER CURIAM

         Tried before a jury, defendant Saeed Cousar was found guilty of third-

degree theft by deception, N.J.S.A. 2C:20-4, and third-degree theft of identity,

N.J.S.A. 2C:21-17(a)(1). The jury accepted the State's theory that defendant

took the personal identifiers of W.S. (Whitlock Sanders)1 to set-up a checking

account in Sanders's name at Peapack Gladstone Bank (PG Bank) enabling

defendant to transfer funds online to the checking account from Sanders's pre-

existing savings account and mortgage account at PG Bank without Sanders's

authorization.     After merger, defendant was sentenced to a discretionary

extended prison term of ten years, with a discretionary parole disqualifier of five

years.

         In his appeal, defendant argues:

               POINT I

               THE SLEW OF HIGHLY DETAILED AND
               IRRELEVANT    EVIDENCE     OF    PRIOR
               CONVICTIONS WAS INADMISSIBLE, CAUSED
               UNDUE PREJUDICE, AND NECESSITATES
               REVERSAL OF DEFENDANT'S CONVICTIONS.


1
   We use initials and a pseudonym to protect the victim's identity. We do
likewise for other victims mentioned in this opinion.
                                                                           A-2214-17T3
                                            2
              A. INTRODUCTION

              B. BECAUSE THERE WAS NO VALID NON-
              PROPENSITY PURPOSE FOR THE ADMISSION OF
              THIS EVIDENCE, IT FAILED TO MEET THE FIRST
              PRONG FOR ADMISSIBILITY UNDER COFIELD.[2]

                    I. Because Motive, Absence Of Mistake,
                    Opportunity, And Knowledge Were Irrelevant To
                    The Case, They Could Not Provide A Basis For
                    The Admission Of The Other-Bad-Act Evidence.

                    II. The Other-Bad-Act Evidence Did Not Meet
                    The Strict Requirements To Be Admissible To
                    Demonstrate Common Scheme Or Identity.

              C. BECAUSE THE VOLUME AND DETAIL OF THE
              EVIDENCE RENDERED ITS PREJUDICIAL
              IMPACT GREATER THAN ITS PROBATIVE
              VALUE, IT FAILED TO MEET THE FOURTH
              PRONG FOR ADMISSIBILITY UNDER COFIELD.

              D. THE ADMISSION OF THE FACT DEFENDANT'S
              PRIOR BAD ACTS RESULTED IN CONVICTIONS
              WAS     INAPPROPRIATE     AND    UNDULY
              PREJUDICIAL.

              E. THE FAILURE TO GIVE A [N.J.R.E.] 404(B)
              CHARGE THAT CLEARLY EXPLAINED THE
              PERMISSIBLE USE OF THE PRIOR-BAD-ACT
              EVIDENCE NECESSITATES REVERSAL.

              F. CONCLUSION.

              POINT II


2
    State v. Cofield, 127 N.J. 328, 338 (1996).
                                                                    A-2214-17T3
                                         3
            THE PROSECUTOR COMMITTED MISCONDUCT
            WHEN, IN SUMMATION, HE PRESENTED AN
            INFLAMMATORY DISPLAY: A PUZZLE, MADE
            UP OF PIECES OF EVIDENCE THAT, WHEN
            COMPLETE, CONSTITUTE DEFENDANT'S FACE.
            (NOT RAISED BELOW).

            POINT III

            THE IDENTIFICATION OF DEFENDANT FROM
            THE SURVEILLANCE STILLS WAS IMPROPER
            AND NECESSITATES REVERSAL OF HIS
            CONVICTIONS. (NOT RAISED BELOW).

            POINT IV

            EVEN IF NONE OF THE ERRORS WOULD BE
            SUFFICIENT TO WARRANT REVERSAL, THE
            CUMULATIVE IMPACT OF THOSE ERRORS
            DENIED DEFENDANT DUE PROCESS AND A
            FAIR TRIAL. (NOT RAISED BELOW).

            POINT V

            DEFENDANT'S SENTENCE IS EXCESSIVE AND
            THE IMPOSITION OF A DISCRETIONARY
            PAROLE DISQUALIFIER UNCONSTITUTIONAL.

      For the reasons that follow, we affirm.

                                       I.

      We highlight the testimony adduced during the six-day jury trial that is

necessary to provide context for our decision.

      A. The Thefts


                                                                      A-2214-17T3
                                       4
      On June 27, 2013, a checking account in Sanders's name was opened at

PG Bank and linked to his savings account at the bank by someone other than

Sanders, using Sanders's personal identifiers, including: home address, date of

birth, social security number, and driver's license number.3 The email address

listed for the new checking account – chase2350@yahoo.com – was unknown

to Sanders. The IP address associated with the device that completed the remote

application for the checking account and activated internet banking was

72.76.189.54. The same IP address was used in all of the online transactions

made in this case.

      On three different dates, a total of approximately $62,000 was transferred

from Sanders's savings account to the checking account and fifteen transfers

were made from the checking account to other non-PG Bank accounts through

PG Bank's "bill pay" function. The payees for those transfers were listed as

William Sanders, James Sanders, S. Cousar, or Saeed Cousar. Two phone

numbers were associated with these transfers, 201-920-7432 and 201-589-7656.

The parties stipulated the 201-589-7656 number was serviced by Sprint and the

listed subscriber was defendant, at the same Stevens Avenue address.



3
  According to Sanders, the answer to the security question – his mother's
maiden name – and the phone number entered by the perpetrator were incorrect.
                                                                        A-2214-17T3
                                       5
        Eleven of those fifteen transfers, which totaled approximately $52,000,

were transferred to a Bancorp account. Bancorp issued prepaid, reloadable cards

serviced by Green Dot Corporation to that Bancorp account. It was stipulated

almost $9,000 was deposited from Bancorp to a Green Dot account. The name

associated with the Green Dot account was Whitlock Sanders and had false

identifiers for the phone number, 201-589-7656, the email address,

chase2350@yahoo.com, and the street address, 328 Stevens Avenue, Jersey

City.

        Without objection, the State admitted into evidence videos and still

photographs from multiple ATMs' surveillance footage in which someone

withdrew money from the Green Dot account. More than $900 was removed

from the account through three ATM transactions.

        Four of the bill pay transfers, totaling approximately $12,000, went into a

One West bank account. It was stipulated One West issued prepaid cards known

as Magic Cards, which permit customers to withdraw cash at ATMs.

Approximately $11,000 was deposited from One West onto a Magic Card. The

cardholder information associated with that account identified defendant and his

phone number 201-589-7656, email address scousar1516@gmail.com, home

address 328 Stevens Avenue Jersey City, date of birth, and social security


                                                                           A-2214-17T3
                                         6
number. Detective Rachel McCaffrey from the Prosecutor's Office special

investigations unit testified that she "confirm[ed]" the date of birth and social

security number belonged to defendant.

        In addition to the bill pay transfers, $9,000 was transferred directly from

the Sanders's PG Bank savings account into a PayPal account. The parties

stipulated the PayPal account was listed in Sanders's name, two addresses were

used: 328 Stevens Avenue, Jersey City and one in Mendham.4 Sanders's correct

date of birth; the email address WhitlockSanders@gmail.com; and the phone

number 201-920-7432. The phone number belonged to an Edwin Santiago.

Detective Rachel McCaffrey of the Hudson County Prosecutor's Office Special

Investigations Unit, who investigated the theft, testified that she never spoke to

Santiago. Santiago, Anthony Sinea, Derrick McCall, and Eric Jefferson, lived

at 328 Stevens Avenue, a three-bedroom apartment, with defendant, who was

the sole tenant listed on the lease.

        Sanders testified he did not open, or authorize anyone to open, the

Bancorp, OneWest, or PayPal accounts in his name.

        It was stipulated the listed subscriber of the IP address was Sinea, with an

address at 328 Stevens Avenue, Jersey City. The IP address is associated with


4
    To protect the victim's identity, we do not disclose his address.
                                                                            A-2214-17T3
                                          7
the phone number 201-589-7656, the email address scousar1516@gmail.com,

and the username scousar1516. As discussed above, it was stipulated Sprint

provided service for that phone number, and defendant was the subscriber with

the same Stevens Avenue address. Det. McCaffrey testified that she never

located or interviewed Sinea.

      B. Evidence Seized During Search Warrant

      Detective McCaffrey executed a search warrant at defendant's 328 Stevens

Avenue residence, seizing several documents addressed to defendant, a Verizon

bill addressed to Sinea, and a deposit slip with McCall's name on it. In one

bedroom, a laptop was found, and, in another bedroom, a desktop computer was

found. A U.S. bank statement for a N.M. was seized. Also confiscated were

pieces of paper with sets of nine-digit numbers written on them, which according

to Det. McCaffrey, was significant because "social security numbers happen to

be nine digits," and the other "numbers with the slashes appear to be date[s] of

birth." She also stated that when she googled the remaining numbers they "came

back as [American Bankers Association] routing numbers."

      Nicolas Perone, an FBI forensic examiner, testified regarding forensic

examination of the desktop computer.        The computer was registered to

cousar1516@live.com. Of the numerous emails accessed on the computer, one,


                                                                        A-2214-17T3
                                       8
dated June 27, 2013, had the subject line, "Your bank account has been

confirmed." There was also a welcome email sent to a Gmail account from

PayPal, addressed to "Whitlock Sanders." The desktop computer retained "web

fragments" containing the email address chase2350@yahoo.com. The computer

was not password protected. Perone explained that an IP address is not specific

to an individual computer or device, but, rather, corresponds to a physical

location.

      C. Bad Acts Testimony

      Prior to trial, a Rule 104 hearing was conducted in which the State sought

the court's permission to admit evidence of fourteen prior incidents of

defendant's bad acts against different victims resulting in convictions, in

accordance with N.J.R.E. 404(b), to demonstrate a common scheme or plan,

motive, absence of mistake, opportunity, knowledge, or identity.

      Over defendant's objection, the motion court – which did not conduct the

trial – admitted twelve of the incidents, in which defendant was convicted for:

(1) theft by deception in 1998; (2) theft by deception in 2001; (3) identity theft

in 2003; (4) receiving stolen property in 2003; (5) theft by deception in 2004;

(6) possession of controlled dangerous substances in 2004 where fraudulent use

of credit card charges were dismissed; (7) tendering bad checks in 2007; (8)


                                                                          A-2214-17T3
                                        9
identity theft in 2008; (9) wrongful impersonation in 2008; (10) theft by

deception in 2008; (11) computer theft in 2011; and (12) fraudulent purchases

in 2013. However, the State chose to present evidence of only two of the

incidents at trial: fraudulent purchases in 2013 and wrongful impersonation in

2008.

        1. First Incident

        Before the 2013 indictment was presented as the first prior bad act, the

court gave a curative instruction to the jury discussed later in this opinion. The

indictment     charged      the   defendant    with   third-degree   computer     theft.

Specifically, the indictment charged that defendant "knowingly did access, or

attempt to access, a database, computer, computer software, or computer

network, to obtain services, property, personal identifying information or

money, from [L.O. (Oxley)], with the purpose to deprive the owner thereof."

The jury was read defendant's judgment of conviction for the offense.

        Oxley testified that in 2011, he sold his home and deposited the proceeds

from the sale into a savings account with Chase Bank. One day, he received a

bank statement, which revealed, "$8,000 or more was gone." He reported the

fraud to the bank and the police.




                                                                                A-2214-17T3
                                          10
        Detective Richard Jupinka of the Manchester Township Police

Department testified extensively as to his investigation into the Oxley fraud. He

confirmed Oxley's testimony and noted two of the transactions from Oxley's

account were to pay a premium for an Esurance automobile insurance policy in

defendant's name.      The policy listed defendant's address as 142 Boswick

Avenue, Jersey City, and had an email address of scousar1516@yahoo.com.

The jury was further advised the IP address from the device that made the

payments was registered to a M.J. at the 142 Boswick Avenue address. Chase

Bank disclosed there was no record of defendant having an account at their bank.

        2. Second Incident

        Regarding the second prior bad act, the jury was advised of the 2008

complaint against defendant, which led to his conviction for third-degree

identity theft of M.S. (Smith).5 Smith gave detailed testimony regarding his

discovery and reporting of charges6 on his credit card statement that neither he



5
    The complaint charged that defendant did "obtain personal identifying
information of [M.S. (Smith)] and did use that information, or assist other
persons in using that information, in order to assume the identity of, or represent
himself as another person, without that person's authorization, and with the
purpose to fraudulently obtain, or attempt to obtain, a benefit or services valued
at more than $500."
6
    Charges were for a car loan; limousine service; and retail purchases.
                                                                            A-2214-17T3
                                        11
nor his wife had made, and an account that was added to his bank account

without his knowledge or authorization.

      Sergeant Jeffrey Tucker of the Denville Township Police Department,

who investigated Smith's complaint, confirmed Smith's testimony. Sgt. Tucker

discovered that the person who secured a bank loan in Smith's name to pay for

the car presented an insurance card in defendant's name at the car dealership.

He further testified that defendant was picked out of a photo array by an

employee of the dealership. Sgt. Tucker itemized the purchases made with the

fraudulent card and stated some of the charges were: associated with the email

address chase2350@yahoo.com; ordered from a computer with an IP address

registered to Kevin Brown; and for items shipped to the address defendant lived

at the time.

      Sgt. Tucker testified, over defense's objection, about executing a search

warrant of defendant's home. Tucker seized a compact disc (CD) labeled "IDs,"

which was, in his opinion, "short for identification." Admitted into evidence was

a document Tucker stated was "a list of names with Social Security numbers,

some with birth dates, some with driver's license numbers — I believe it was

100 — about 150 different people."




                                                                         A-2214-17T3
                                      12
      D. The Defense

      Through the testimony of his friend Willie Thomas and his cousin McCall,

defendant contended someone else in his apartment committed the theft from

Sanders. Both witnesses testified defendant lived at 328 Stevens with Sinea,

Santiago, McCall, and Eric Jefferson. The witnesses further testified all the

apartment's tenants had access to and regularly used the non-password protected

computer seized by the prosecutor's office.

      On cross-examination, however, both Thomas and McCall buttressed the

State's case by identifying defendant as the man in the stills from the ATM's

surveillance footage withdrawing money from the Green Dot account.

      E. Summation

      In support of the contention that defendant did not commit the theft,

defense counsel pointed out that the IP address was in Sinea's name and that

McCall, Santiago, Jefferson, or Sinea were the perpetrator(s), who were never

spoken to or investigated by the prosecutor's office.

      As for the State, the prosecutor emphasized defendant's role as the identity

thief, by using visual representations of the identified evidence in the shape of

puzzle pieces that when placed together as a single image revealed the

surveillance still photo identified as defendant.


                                                                          A-2214-17T3
                                       13
      E. Jury Instruction - Bad Acts

      After summations, in relevant part, the jury was given the following

instruction during the final charge and a similar instruction before the

introduction of any bad acts testimony:

            The [S]tate has introduced evidence that the defendant
            may have committed other crimes involving theft by
            deception and wrongful impersonation. Normally, that
            type of evidence is not permitted under our rules. Our
            rules exclude evidence that a defendant has committed
            other crimes, wrongs or actions when it's offered only
            to show that he has a disposition, a tendency to do
            wrong and, therefore, must be guilty of the present
            charge.

            Before you can give any weight to this other evidence,
            you must be satisfied that the defendant committed
            these other wrongs, crimes or actions. If you're not so
            satisfied, you may not consider it at all.

            However, our rules do permit evidence of other crimes,
            wrongs or actions when the evidence is used for certain,
            specific narrow purposes. In this case, the [S]tate
            alleges that the evidence of these prior crimes, wrongs,
            actions, are relevant to a common scheme or plan,
            knowledge, the absence of mistake or accident.
            Specifically, the [S]tate contends that the current crime
            is part of a common scheme or plan by the defendant to
            steal victim's -- from victims by exploiting their
            personal information. The [S]tate contends that the
            prior crimes, wrongs, actions are relevant to provide the
            defendant's knowledge of the theft, the stolen money,
            the absence of mistake or accident. That is, the [S]tate
            contends that the transfer of the money from the
            Peapack-Gladstone Bank was the result of . . .

                                                                        A-2214-17T3
                                       14
            intentional criminal conduct and it was not the result of
            some innocent . . . banking accident or mistake.

            Whether this evidence does, in fact, demonstrate a
            common scheme or plan, knowledge, absence of
            mistake, that's for you to decide. You may decide that
            the evidence does not demonstrate a common scheme
            or plan, or knowledge, or absence of mistake and is not
            helpful to you at all. In that case, disregard it.

            On the other hand, you may decide that the evidence
            does demonstrate a common scheme or plan,
            knowledge, absence of mistake and, if so, use it for that
            specific purpose only.

            However, you may not use this evidence to decide that
            the defendant has a tendency to commit crimes or that
            he is a bad person. That is, you may not decide that just
            because the defendant may have committed other
            crimes, wrongs or actions, he must be guilty of the
            present offense. I have admitted this evidence to help
            you decide the specific questions of a common scheme
            or plan, knowledge, or absence of mistake. You may
            not consider it for any other purpose. You may not find
            the defendant guilty now simply because the [S]tate
            offered evidence that he may have committed other
            crimes on a prior occasion.
            (Emphasis added).

      F. Sentencing

      After jury deliberations, defendant was found guilty of third-degree theft

by deception and third-degree theft of identity. At the subsequent sentencing,

the court applied aggravating factors three, six, nine, eleven, and twelve.

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

                                                                        A-2214-17T3
                                      15
1(a)(6) (extent of defendant's prior criminal record); -1(a)(9) (the need to deter

defendant and other); -1(a)(11) (imposition of a fine, penalty or order of

restitution without also imposing a term of imprisonment would be perceived by

the defendant or others merely as part of the cost of doing business); and -

1(a)(12) (offense was against a person defendant knew or should have known

was 60 years of age or older, or disabled). The court applied only mitigating

factor six. N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victim for the

damage he sustained).

      The court, after merger, sentenced defendant to an extended ten-year

prison term with a five-year period of parole ineligibility. The sentence was the

maximum possible extended-term sentence, with the maximum period of parole

ineligibility.

                                        II.

      This appeal can be boiled down to four categories where defendant

contends the trial court erred: (1) improper admission of evidence; (2)

prosecutorial misconduct during summation; (3) cumulative errors; and (4)

excessive sentence. Defendant argues if none of the errors in the first two

categories warrant reversal of his conviction, they would, together, constitute

cumulative error to justify reversal.


                                                                          A-2214-17T3
                                        16
      A. Improper Admission of Evidence

      1. Bad Acts Evidence

      Defendant contends in Point I there were four errors regarding the

admission of his other crimes as evidence. First, he argues there was no valid

non-propensity purpose for the admission of the bad-act evidence. Therefore,

the evidence failed to meet the first prong of Cofield and was inadmissible.

Second, he contends the evidence was more prejudicial than probative, due to

the excessive amount, and inflammatory nature, of what was presented.

Therefore, the evidence failed to meet the fourth prong of Cofield and was

inadmissible. Third, the jury was inappropriately told defendant's prior bad acts

resulted in convictions, which was highly prejudicial and defendant stresses

never should have been put in front of the jury. Last, defendant argues the

N.J.R.E. 404(b) jury instruction was inadequate to ensure the jury would use the

evidence for its proper purposes. We are unpersuaded.

      An appellate court gives "great deference" to a trial court's determination

on the admissibility of "other bad conduct" evidence. State v. Goodman, 415

N.J. Super. 210, 228 (App. Div. 2010) (citing State v. Foglia, 415 N.J. Super.

106, 122 (App. Div. 2010)). We apply an abuse of discretion standard; there




                                                                         A-2214-17T3
                                      17
must be a "clear error of judgment" to overturn the trial court's determination.

State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008).

      N.J.R.E. 404(b) provides that evidence of other crimes or bad acts is

generally not admissible, unless used for "proof of motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident when

such matters are relevant to a material issue in dispute."     The concern in

admitting evidence of other crimes is "the jury may convict the defendant

because he is a bad person in general." Cofield, 127 N.J. at 336 (internal

quotation marks omitted).     "[O]ther crimes evidence may be admissible if

offered for any non-propensity purpose, including the need to provide necessary

background information about the relationships among the players" involved.

State v. Rose, 206 N.J. 141, 180-81 (2011) (emphasis, internal quotation marks,

and citations omitted). The evidence is not required to prove or disprove a fact

at issue but need only support a desired inference. State v. Swint, 328 N.J.

Super. 236, 252-53 (App. Div. 2000).

      In Cofield, our Supreme Court set forth a four-pronged test to govern the

admission of such evidence:

            1. The evidence of the other crime must be admissible
            as relevant to a material issue;



                                                                        A-2214-17T3
                                       18
            2. It must be similar in kind and reasonably close in
            time to the offense charged;

            3. The evidence of the other crime must be clear and
            convincing; and

            4. The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover,
            Balancing the Presumptions of Guilt and Innocence:
            Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135,
            160 (1989)); see also State v. Carlucci, 217 N.J. 129,
            140-41 (2014) (reaffirming the Cofield test).]
      Our Supreme Court has also explained that the second Cofield prong

"need not receive universal application in [N.J.R.E.] 404(b) disputes." State v.

Williams, 190 N.J. 114, 131 (2007).

      Once N.J.R.E. 404(b) evidence is found to be admissible, "the court must

instruct the jury on the limited use of the evidence." Cofield, 127 N.J. at 340-

41 (internal citation omitted). "[T]he court's instruction 'should be formulated

carefully to explain precisely the permitted and prohibited purposes of the

evidence, with sufficient reference to the factual context of the case to enable

the jury to comprehend and appreciate the fine distinction to which it is required

to adhere.'" Id. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).

      Here, after conducting an N.J.R.E. 104 hearing, applying Cofield, the

motion court issued a sixteen-page written opinion finding that twelve of the

                                                                          A-2214-17T3
                                       19
fourteen incidents involving defendant's crimes of identity thefts, theft, and theft

by deception to obtain automobiles, consumer goods, and cash, were admissible

because all four prongs of the Cofield factors were satisfied. As noted, only two

of the twelve incidents were presented to the jury, thus, our focus is only on the

evidence related to those incidents and defendant's contentions that only

Cofield's first and fourth prongs were not satisfied.

      The first prong was satisfied because the other crimes were similar to the

offenses charged in this matter – identity theft and theft by deception. As the

court determined they were relevant to show identity and absence of mistake

given defendant's defense that others living with him committed the offenses

against Sanders. The other crimes also were relevant to show a "common

scheme or plan" in defendant's thefts.        See Stevens, 115 N.J. at 305-06

(admissibility of evidence that tends to "prove[] the existence of an integrated

plan, of which the other crimes and the indicted offense are components").

      There were many digitally-gathered commonalities in the personally

identifiable information – the same email address, defendants own name being

used in a few transactions, phone numbers, and the last four digits of his social

security number – between the prior crimes and the charge in question. And

evidence from the prior crimes was relevant in helping the jury understand the


                                                                            A-2214-17T3
                                        20
importance of the numbers on the CDs and expose the flaws in the defense's

theory that one or more of individuals that lived at 328 Stevens committed the

crime and not defendant.

      Under the fourth prong, the motion court closely weighed the probative

value of the evidence against the apparent prejudice.       The court properly

recognized the jury could infer that because defendant was convicted of similar

crimes he presumably could have committed this crime. Nevertheless, the court

determined the probative value of the other crimes were extremely high because

the facts of those crimes would tend to prove absence of mistake or knowledge

about how they were successfully committed. Acknowledging the State's theory

that defendant's prior bad acts establish a "common scheme or plan and absence

of mistake," the court reasoned the probative value of the evidence under that

particular theory was not outweighed by any prejudice to defendant .

      We agree with the State that the detailed evidence of defendant's prior

crimes it presented was necessary to disprove his theory that his apartment mates

had access to his computer and committed the crime. From our review of the

record, given the extensive efforts defendant performed to facilitate his theft

crimes, the level of detail presented by the State was appropriate. Consequently,

we reject defendant's contention, citing State v. Willis, 225 N.J. 85, 97 (2016),


                                                                         A-2214-17T3
                                      21
that the amount of other crimes evidence was so disproportionate it had the clear

capacity to distract the jury's attention from whether he stole Sanders's identity

for financial gain, and have it place too much weight on his prior criminal acts.

The fact that the State limited its evidence of bad acts to only two of the twelve

incidents that were deemed admissible is indicative of the State's restraint in its

case despite the long trail of defendant's convictions that demonstrate a common

scheme or plan and absence of mistake.

      We likewise conclude there is no merit to defendant's contention that the

N.J.R.E. 404(b) jury instruction was inadequate to assure that the jury would use

the evidence for its proper purposes. Because defendant did not object to the

instruction, we review his argument under the plain error rule. Thus, the

instruction given must be "clearly capable of producing an unjust result," Rule

2:10-2, and "sufficient to raise a reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached[,]" State v. Macon, 57 N.J.

325, 336 (1971). Moreover, the failure to object raises the presumption that

these instructions were adequate. State v. Morais, 359 N.J. Super. 123, 134-35

(App. Div. 2003) (citing Macon, 57 N.J. at 333).

      In following the Model Jury Charges (Criminal), "Proof of Other Crimes,

Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12, 2016), the court instructed


                                                                           A-2214-17T3
                                       22
the jury to decide whether the bad acts evidence demonstrated common scheme

or plan, knowledge, the absence of mistake or accident, and if it agreed with the

State, to use it for that limited purpose. The court cautioned the jurors:

             [Y]ou may not use this evidence to decide that the
             defendant has a tendency to commit crimes or that he is
             a bad person. That is, you may not decide that just
             because the defendant may have committed other
             crimes, wrongs or actions, he must be guilty of the
             present offense. I have admitted the evidence to help
             you decide the specific questions of a common scheme
             or plan, knowledge, or absence of mistake. You may
             not consider it for any other purpose. You may not find
             a defendant guilty now simply because the State offered
             evidence that he may have committed other crimes on
             a prior occasion.

      Since "we presume the jury followed the court's instructions," State v.

Smith, 212 N.J. 365, 409 (2012) (citing State v. Loftin, 146 N.J. 295, 390

(1995)), and there is no indication that it did not, we can only conclude that the

jury properly used the other crimes evidence in determining that defendant

committed the crime against Sanders as part of a common plan or scheme to find

defendant guilty and did not use it for propensity purposes. Accordingly, we

are satisfied there has been no showing that the jury instruction produced an

unjust result.

      2. Identification of Defendant from the Surveillance Stills



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      In Point II, defendant asserts the testimony the State elicited from his two

witnesses, Thomas and McCall, on cross-examination identifying him as the

person depicted in the bank surveillance cameras conducting ATM transactions

was inappropriate because it was the jury's role to determine if the person in the

surveillance still was defendant. State v. McLean, 205 N.J. 438, 543 (2011).

He further argues the trial court failed to instruct the jury on how to carefully

scrutinize these identifications, which violated his due process rights and a fair

trial. U.S. Const., amends. V and XIV; N.J. Const., art. I, ¶¶ 1, 9 and 10.

Acknowledging he did not object to the identifications, defendant contends they

were clearly capable of producing an unjust result in accordance with the plain

error rule, Rule 2:10-2. We disagree.

      Lay opinion testimony is permitted when it is "rationally based on the

perception of the witness" and "will assist in understanding the witness'

testimony or in determining a fact in issue."       N.J.R.E. 701.    Lay opinion

testimony "is not a vehicle for offering the view of the witness about a series of

facts that the jury can evaluate for itself or an opportunity to express a view on

guilt or innocence." McLean, 205 N.J. at 462. "[T]estimony in the form of an

opinion, whether offered by a lay or an expert witness, is only permitted if it

will assist the jury in performing its function." Ibid. "The [r]ule does not permit


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                                        24
a witness to offer a lay opinion on a matter . . . as to which the jury is as

competent as he to form a conclusion[.]" Id. at 459 (internal quotation marks

and citation omitted). Also, under N.J.R.E. 704, "[t]estimony in the form of an

opinion or inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact." Opinion testimony

"is subject to exclusion if the risk of undue prejudice substantially outweighs its

probative value." State v. Summers, 176 N.J. 306, 312 (2003).

      A witness who can demonstrate familiarity with the defendant may be

permitted to testify regarding identification. See State v. Lazo, 209 N.J. 9, 22-

24 (2012) (citing State v. Carbone, 180 N.J. Super. 95 (Law. Div. 1981)). For

example, in Carbone, the court admitted the State's lay witness testimony of

personal photographic identifications of the defendant before the jury by

individuals who did not witness the crime, but nevertheless had personal

knowledge of and familiarity with the defendant's appearance at the time the

defendant committed the offense charged. 180 N.J. Super. at 96-100.

      Applying these principles, we discern no basis to conclude the

identifications of defendant by his witnesses denied him due process and a fair

trial. Clearly, they knew defendant and were able to inform the jury whether




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                                       25
defendant was the person depicted in the bank surveillance cameras conducting

ATM transactions.

      B. Prosecutorial Misconduct During Summation

      In Point II, defendant contends there was prosecutorial misconduct by the

State's use of an "inflammatory" visual aid in summation. The prosecutor

commented on relevant trial evidence – i.e., phone numbers, an email address,

an IP address, names of witnesses, and service providers – written on separate

pieces of paper with images, and like a puzzle, placed them on a larger board

for the jury to view. When the summation was concluded, the board depicted a

photo of defendant's face taken from the surveillance stills that defendant's own

witnesses had identified as him. The prosecutor's summation ended with the

comment: "Although that money was stolen by someone who was unknown to

them, that person is known to you. You can attach the face to the person behind

the computer. That person was the defendant, Saeed Cousar, and I ask that you

find him guilty of both counts. Thank you." Defendant avers this was an

improper use of a visual aid that violated his rights to due process and a fair trial

and requires the reversal of his convictions. U.S. Const., amends. V and XIV;

N.J. Const., art. I, ¶¶ 1, 9 and 10. We disagree.




                                                                             A-2214-17T3
                                        26
      In our review of a claim of prosecutorial misconduct, we engage in a three-

part inquiry when determining whether the prosecutor's conduct was sufficiently

egregious to warrant a new trial. State v. Timmendequas, 161 N.J. 515, 575-76

(1999). We "must consider (1) whether defense counsel made timely and proper

objections to the improper remarks; (2) whether the remarks were withdrawn

promptly; and (3) whether the court ordered the remarks stricken from the record

and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999).

      Where defense counsel does not object to the challenged comment during

summation, it "suggests that defense counsel did not believe the remarks were

prejudicial at the time they were made" and "deprives the court of an opportunity

to take curative action." Id. at 84. Under those circumstances, the comment

should be deemed harmless, if comments were not "sufficient to raise a

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

not have reached." State v. Bakka, 176 N.J. 533, 548 (2003) (quoting State v.

Bakston, 63 N.J. 263, 273 (1973)).

      A defendant's conviction should only be reversed due to prosecutorial

wrongdoing "where the . . . misconduct was so egregious that it deprived the

defendant of a fair trial." Frost, 158 N.J. at 83 (citations omitted). While a

prosecutor "in . . . summation may suggest legitimate inferences to be drawn


                                                                            A-2214-17T3
                                        27
from the record," a prosecutor "commits misconduct when [the summation] goes

beyond the facts before the jury." State v. Harris, 156 N.J. 122, 194 (1998). The

misconduct "must have been 'clearly and unmistakably improper,' and must have

substantially prejudiced defendant's fundamental right to have a jury fairly

evaluate the merits of his defense." Timmendequas, 161 N.J. at 575.

      Defendant cites to State v. Rivera, 437 N.J. Super. 434, 452-53 (App. Div.

2014), where we held it was improper for the State to use inflammatory visual

aids that assert defendant's guilt. The prosecutor there presented in his opening

a series of PowerPoint slides with the final slide containing a photograph

showing defendant's face and neck with the text "Defendant GUILTY OF:

ATTEMPTED MURDER" which was presented again in summation. Id. at 447,

464. Defendant argues that while the visual aid in this case did not have the

word "GUILTY" on it, the implication is the same: his face was put up in front

the jury in conjunction with the prosecutor's assertion of defendant's guilt. The

fact that the misconduct took place in the closing does not mitigate the

prejudicial impact of the aid, according to defendant. Defendant reasons, if

anything, the prejudicial impact was heightened because summations leave a

lasting impression on the jury as the final adversarial stage of the trial. He

stresses that misconduct at this stage is fatal to a defendant's right to a fair trial.


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                                         28
See In re Pers. Restraint of Glasmann, 286 P.3d 673, 679 (Wash. 2012)

("Prejudicial imagery may become all the more problematic when displayed in

the closing arguments of a trial, when the jury members may be particularly

aware of, and susceptible to, the arguments being presented.") (internal citations

omitted).

      In this case, none of the prosecutor's use of defendant's image and remarks

compromised the ability of the jury to fulfill its fact-finding function. The fact

that there was no objection suggests defense counsel did not believe the photo

and remarks were prejudicial at the time they were made. Yet, even if an

objection was made and had been denied, we see no due process violation. There

was nothing inaccurate or misleading about the prosecutor's presentation.

      Defendant's reliance on Rivera is misplaced. There, we recognized the

offensive nature of the prosecutor's conduct was his declaration of the

defendant's guilt without reference to the evidence presented, and it was not the

only prejudicial misconduct by the prosecutor that was "inconsistent with the

prosecutor's obligation to try the case fairly." 437 N.J. Super. at 453. Thus, we

never held that the prosecutor's "opening statement and PowerPoint were, in




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                                       29
themselves, sufficiently prejudicial to require a new trial." 7 Ibid. In this case,

the photo of defendant's face had been admitted into evidence and contained

inscriptions of admissible evidence. The image therefore contained facts that

had already been provided to the jury. In addition, the prosecutor's comment

that defendant was guilty was not his personal opinion but was based upon the

evidence presented at trial. In sum, there was nothing about the prosecutor's

conduct so egregious that we can reasonably conclude led the jury to a guilty

verdict it otherwise might not have reached.

      C. Cumulative Impact of Errors

      When multiple errors are alleged, "the predicate for relief for cumulative

error must be that the probable effect of the cumulative error was to render the

underlying trial unfair."    State v. Wakefield, 190 N.J. 397, 538 (2007).

However, even where a defendant alleges multiple errors, "the theory of

cumulative error will still not apply where no error was prejudicial and the trial

was fair." State v. Weaver, 219 N.J. 131, 155 (2014).




7
   We also concluded the trial court's curative instruction prompted by the
defendant's objection was "not sufficiently pointed to allow us to conclude that
the jurors understood it to refer to the displayed and oral declarations of
defendant's guilt." Rivera, 437 N.J. Super. at 453.
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                                       30
      Given our conclusions that there were no trial errors regarding the

admission of evidence and prosecutorial misconduct, there can be no cumulative

errors as contended in Point IV that could have denied defendant a fair trial.

      D. Excessive Sentence

      In Point V, defendant contends his ten-year sentence is excessive for a

non-violent crime. Defendant argues it was improper for the judge to find

aggravating factors three and eleven. Specifically, aggravating factor eleven

was inappropriate because it only applies if the court is balancing a non-

custodial term against a state prison sentence. State v. Dalziel, 182 N.J. 494,

502 (2005). Defendant further argues that because the court relied on his prior

record to find that an extended term was appropriate, its reliance on that same

record to find aggravating factor three was double-counting. Accordingly,

defendant maintains there should be a remand for resentencing because there

was no justification for giving him a ten-year sentence “for a crime that would

ordinarily carry a maximum of five years.”

      Defendant moreover stresses that the discretionary parole disqualifier is

unconstitutional.   When the State makes an application for a discretionary

extended term, he avers the court must first determine whether he has the

appropriate prior convictions to establish his eligibility for an extended -term


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                                      31
sentence. State v. Pierce, 188 N.J. 155, 161 (2006). In addition, he contends

that even where the grounds for a persistent offender status have been proven, a

court is not required to impose an extended-term sentence, which "relatively few

convictions will warrant."8 State v. Dunbar, 108 N.J.80, 89 (1987).

      We reject defendant's contention that his sentence is manifestly excessive.

Given defendant's extensive prior criminal record – involving similar offenses

of theft by deception and identity theft – as a persistent offender, the court

appropriately granted the State's motion to impose a discretionary extended term

of incarceration on pursuant to N.J.S.A. 2C:44-3(a). The court reasonably

identified and weighed the pertinent aggravating factors, and reasonably found

one mitigating factor, all in accordance with State v. Fuentes, 217 N.J. 57, 70

(2014). Defense counsel conceded that defendant was statutorily eligible for a

discretionary extended term sentence.




8
  Defendant also noted that our Supreme Court recently granted certification in
State v. Kiriakakis, No. A-3061-15 (App. Div. Aug. 28, 2017) cert. granted, 232
N.J. 374 (2018). In that case, the defendant argued that the statute allowing for
the imposition discretionary parole disqualifier violates the requirement that the
imposition of a parole disqualifier be based only on a finding of fact made by
the jury beyond a reasonable doubt. Kiriakakis, slip op. at 3. After the briefs
were submitted, the Court affirmed this court's decision. State v. Kiriakakis,
235 N.J. 420 (2018).
                                                                          A-2214-17T3
                                        32
      There was no impermissible double-counting of factors. See State v.

Varona, 242 N.J. Super. 474, 491 (App. Div. 1990) (when defendant's conduct

far exceeds that necessary to satisfy the elements of an offense, it is not double

counting to consider it). As the State emphasizes, defendant has seventeen prior

convictions; eight times more than the two needed under N.J.S.A. 2C:44-3(a).

The sentence, while at the upper end of the permissible range, does not shock

the judicial conscience. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

      Affirmed.




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                                       33
