                                NOT FOR PUBLICATION WITHOUT THE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-3020-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

OSCAR A. HERNANDEZ,

     Defendant-Appellant.
_________________________

                   Submitted September 25, 2019 – Decided October 28, 2019

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Atlantic County, Indictment No. 16-07-
                   1814.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Daniel Vincent Gautieri, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Nicole Lynn Campellone, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a jury trial, defendant was convicted of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and

fourth-degree possession of a weapon under circumstances not manifestly

appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d) (count

three). He was sentenced to an aggregate five-year term of imprisonment,

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

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The convictions stemmed from

a fight on the boardwalk in Atlantic City, during which defendant stabbed the

victim repeatedly. The fight was captured on surveillance footage, and the video

was played for the jury during the trial.

      Defendant now appeals from his convictions and sentence, raising the

following arguments for our consideration:

            POINT I

            THE PROSECUTOR COMMITTED MISCONDUCT
            IN SUMMATION WHEN HE STATED THAT
            VIDEOTAPES ARE NOT CAPABLE OF LYING
            AND WHEN HE INFORMED JURORS THAT THEY
            COULD USE COMMON SENSE TO UNDERSTAND
            THE TERMS "PURPOSELY" AND "KNOWINGLY."




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                                        2
            POINT II

            THE KNIFE-POSSESSION CONVICTION IN
            COUNT THREE SHOULD HAVE MERGED INTO
            THAT ON COUNT TWO, AND THE CONVICTION
            FOR POSSESSION OF THE KNIFE FOR AN
            UNLAWFUL PURPOSE IN COUNT TWO SHOULD
            HAVE    MERGED  INTO    THE  ASSAULT
            CONVICTION ON COUNT ONE. (NOT RAISED
            BELOW)[.]

After considering the arguments presented in light of the record and applicable

law, we affirm the convictions and sentence, but remand for amendment of the

judgment of conviction.

      We recount the pertinent facts from the trial record. At approximately

12:30 a.m. on the morning of March 5, 2016, three friends gathered after work

at Caesars Casino, Guadencio Camacho, Brian Flores, and Jose Reyes.

Defendant arrived with Reyes. Over the next several hours, they gambled,

drank, and socialized until Camacho and Reyes started arguing "about

[Camacho's] ex-girlfriend" and "decided to go outside and fight." Flores and

defendant accompanied them. According to Flores, he wanted "[t]o watch the

fight and make sure that things stay[ed] clean."

      Once outside on the boardwalk, instead of Camacho and Reyes fighting,

Flores and defendant began arguing when Flores told defendant not to "get

involved" in the fight between Camacho and Reyes. The argument became

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                                       3
physical when defendant pushed Flores and "lunged at [him] with a knife,"

ultimately stabbing Flores "[t]hree" times, twice "in the stomach" and once in

his left side. Flores described the knife as a "small" "fold[ing]" knife. The entire

incident, which lasted approximately four to five minutes, was captured on

Caesar's surveillance video, which was played for the jury during Flores'

testimony.1 After the stabbing, once Flores "noticed that [he] was bleeding," he

went inside the casino "to ask security to call the police." The police responded

and apprehended defendant in a parking lot, approximately two blocks from the

casino. However, no weapon was recovered from defendant's person. At the

scene, while Flores was receiving medical attention in an ambulance, he

identified defendant as his assailant when police brought defendant to the

ambulance. Flores was transported to the hospital for treatment, and his medical

records were admitted into evidence during the trial.

      Following the jury verdict, the trial judge denied defendant's motion for a

judgment of acquittal notwithstanding the verdict and for a new trial. 2 See R.



1
   Camacho also testified at the trial and largely confirmed Flores' account.
According to Camacho, no one other than defendant threw punches during the
entire episode.
2
   The judge had previously denied defendant's motion for a judgment of
acquittal at the close of the State's case. See R. 3:18-1.
                                                                           A-3020-17T2
                                         4
3:18-2.    The judge then sentenced defendant to a five-year term of

imprisonment, subject to NERA, on count one, a concurrent three-year term of

imprisonment on count two, and a concurrent eighteen-month term of

imprisonment on count three. A conforming judgment of conviction was entered

on February 16, 2018, and this appeal followed.

      In Point I, defendant argues "[t]he prosecutor committed two separate

errors in summation."       According to defendant, "[f]irst, the prosecutor

improperly argued that the video established that [defendant] was the aggressor

and that the video '[was] not capable of lying.'" Second, the prosecutor stated

that "purposely or knowingly . . . were 'not just legal terms' but that jurors 'only

need[ed] common sense to understand them.'" Defendant asserts these errors

deprived him of a fair trial because "videos can indeed be misleading[,]" and

jurors cannot "use a non-legal definition of terms contained in the indictment to

reach a guilty verdict."

      Courts afford prosecutors "considerable leeway" in the vigor and force of

the language used in closing arguments, "so long as their comments are

reasonably related to the scope of the evidence presented."               State v.

Timmendequas, 161 N.J. 515, 587 (1999) (citing State v. Harris, 141 N.J. 525,

559 (1995)). Thus, as long as prosecutors do "not make inaccurate legal or


                                                                           A-3020-17T2
                                         5
factual assertions during a trial and . . . confine their comments to evidence

revealed during the trial and reasonable inferences to be drawn from that

evidence[,]" "what is said . . . 'by way of comment, denunciation or appeal, will

afford no ground for reversal.'"    State v. Smith, 167 N.J. 158, 178 (2001)

(citations omitted). However, courts have "not hesitated to reverse convictions

where . . . the prosecutor in his summation over-stepped the bounds of propriety

and created a real danger of prejudice to the accused." State v. Johnson, 31 N.J.

489, 511 (1960).

      In determining whether to reverse a conviction for improper remarks

during the prosecutor's summation, an appellate court must decide whether "the

prosecutor's misconduct was so egregious that it deprived the defendant of a fair

trial." Frost, 158 N.J. at 83 (citations omitted). To that end, we must consider

whether the defendant objected to the remarks, "whether the remarks were

withdrawn[,]" and "whether the court ordered the remarks stricken from the

record and instructed the jury to disregard them." Ibid. (citations omitted).

Additionally, we "will consider whether the offending remarks were prompted

by comments in the summation of defense counsel." State v. Smith, 212 N.J.

365, 404 (2012).




                                                                        A-3020-17T2
                                       6
      Here, during her summation, defense counsel attacked the victim's

credibility and described him as "drunk" and unable to "remember much[.]" She

explained that "[r]easonable doubt [could] be found in inconsistencies between

witnesses [and] . . . in a video authenticated . . . only by a man [referring to the

victim] who recognize[d] himself in the video as the man in the backpack[.]"

Defense counsel described the video as "grainy" and pointed out that there was

"no testimony that the video [was] complete[,]" "no evidence that the video as

shown [was] whole[,]" and "no testimony that the date timestamped . . . on the

video on the bottom of the screen [was] accurate."

            She stated:

                  If you accept the video for what it showed of the
            events that are said to have transpired, the video shows
            [a] chaotic disorganized fight. There's nothing to show
            as the State alleged in its opening that the defendant
            was aiming [at] internal organs as he threw his punches.

                   ....

                 The video shows, if you accept it as it was
            shown[,] at worse a mutual fight between two grown
            men pushing, shoving, [and] punching[.]

      In response, the prosecuting attorney reminded the jurors that it was their

job "to judge the credibility of the witnesses." The prosecutor explained that

although the victim was "drinking[,]" this was not "a case where it[ was] just a


                                                                           A-3020-17T2
                                         7
victim saying what[] happened." Instead, the victim was corroborated by a

video, depicting "only one aggressor[,]" and the victim's account "match[ed] up

with the video." The prosecutor stated:

                  This was an attack, plain and simple. It's not
            complicated. The whole thing is on video. The
            defendant picks a fight with [Flores] and then uses a
            knife to finish it. . . .

                  The video is not capable of lying. It's a recording
            of the attack. It's a recording of the defendant's
            aggression.

      Following summations, defense counsel objected to the prosecutor

"[s]aying the video [was] not capable of lying."        The judge overruled the

objection, noting she did "not think the prosecutor . . . overstepped his bounds

under the circumstances . . . ." We agree. The comment countered defense

counsel's attacks on the victim's credibility, the video's reliability, and the

characterization of the altercation as a mutual fight. In any event, the video

spoke for itself, and the judge promptly instructed the jurors that "what the

attorneys have just said to you in closings is not evidence." Rather, "[i]t is their

argument as to what their recollections are of the evidence." Addressing the

jurors, the judge stated, "[i]t's your recollection at this point as to what the

evidence presented was and . . . your recollection collectively [that] will be

controlling." In the absence of some evidence to the contrary, "[t]here can be

                                                                           A-3020-17T2
                                         8
no assumption that the jury did not faithfully follow the [court's] admonition."

State v. Nelson, 173 N.J. 417, 447 (2002) (quoting State v. Manley, 54 N.J. 259,

271 (1969)).

      Turning to the second offending comment, during her summation, defense

counsel told the jury "[t]he judge [was] going to instruct [them] on mental states

that appl[ied] in the case[,]" but disputed that the prosecutor had established

defendant had the requisite mental states. Relying on the video, defense counsel

pointed out that "it show[ed] t[w]o men fighting with little or no room or time

to form a specific intent to carry out a plan with such . . . precision to create

substantial risk of death."

      In response, the prosecutor stated:

            Purposefully and knowingly . . . [are] not just legal
            terms. They're terms we use every day in our
            conversations.

                 We only need common sense to understand them.
            You saw the video . . . . Purposeful. The defendant
            purposely stabbed [Flores] in the stomach . . . . The
            defendant purposely stuck the knife in [Flores'] side.

                  Knowingly. He knew what he was doing. What
            else could it be? The knife didn't just stumble into
            [Flores]. He stuck it there twice.

Later, the prosecutor continued, "[a]gain, purposeful. It's not just a legal term,

it's a word we use every day. We only need common sense to understand it."

                                                                         A-3020-17T2
                                        9
      Defense counsel objected, stating on "multiple" occasions, "the prosecutor

. . . misstated the law" by "urg[ing] the jury to apply common sense[.]"

However, according to defense counsel, "[t]hese are legal terms of art that have

a specific meaning . . . ." At defense counsel's request, the judge agreed to give

a curative instruction, and instructed the jury as follows:

               If anything said by either attorney . . . about the law is
               contradictory to what I now tell you[, you] must follow
               my instructions.

                     ....

               . . . [Y]ou must accept and apply this law for this case
               as I give it to you in this charge. Any ideas you have
               or you may have of what the law is[,] what the law
               should be[,] or any statements by the attorneys as to
               what the law may be must be disregarded by you if they
               conflict with this charge.

Subsequently, the judge instructed the jury on the legal definitions of the terms

purposely and knowingly.

      Defendant renewed his challenge to the prosecutor's "misstatement" of the

requisite mental states in his motion for a new trial following the jury verdict,

asserting it "led to a manifest denial of justice," notwithstanding the curative

instruction.     However, the judge rejected defendant's contention, finding

defendant failed to establish that a new trial was required. Given the curative

instruction, we are satisfied the prosecutor's summation did not deny defendant

                                                                            A-3020-17T2
                                          10
of his right to a fair trial, and we presume the jury followed the judge's

instructions.

      Finally, defendant argues count three, possession of the knife under

circumstances not manifestly appropriate for such lawful uses as it may have,

N.J.S.A. 2C:39-5(d), should have merged into count two, possession of the knife

for an unlawful purpose, N.J.S.A. 2C:39-4(d), and count two should have

merged into count one, aggravated assault. The State concedes that merger is

warranted. See State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986)

(mandating merger of the defendant's conviction under N.J.S.A. 2C:39-5(d) into

the conviction under N.J.S.A. 2C:39-4(d) because "all the elements of [N.J.S.A.]

2C:39-5[(d)] are part of the proof necessary to establish a violation of [N.J.S.A.]

2C:39-4[(d),]" and "[t]he offense set forth in [N.J.S.A.] 2C:39-5[(d)] is a lesser

included offense of the crime set forth in [N.J.S.A.] 2C:39-4[(d)]."); see also

State v. Tate, 216 N.J. 300, 312 (2013) (explaining that "'[w]hen the only

unlawful purpose in possessing the [weapon] is to use it to commit the

substantive offense, merger is required'") (alterations in original) (quoting State

v. Diaz, 144 N.J. 628, 636 (1996)).

      Because the sentences imposed on counts two and three are concurrent,

the merger may have no practical effect on the overall length of defendant's


                                                                          A-3020-17T2
                                       11
sentence.   We affirm the convictions and sentence, but remand for an

amendment of the judgment of conviction to reflect the merger.

      Affirmed in part; remanded to amend the judgment of conviction

consistent with this opinion. We do not retain jurisdiction.




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                                      12
