                                NOT FOR PUBLICATION WITHOUT THE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-3514-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRANDON K. MOSBY,
a/k/a KYREE B. MOSBY,

     Defendant-Appellant.
_______________________

                   Submitted May 26, 2020 – Decided July 23, 2020

                   Before Judges Fasciale and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Camden County, Indictment No. 15-03-
                   0789.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Amanda Gerilyn Schwartz, Deputy
                   Attorney General, of counsel and on the brief).

PER CURIAM
       Defendant Brandon K. Mosby appeals from his convictions by jury and

sentences for first-degree murder, in violation of N.J.S.A. 2C:11-3(a)(1) (count

one); second-degree possession of a weapon for an unlawful purpose, in

violation of N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful

possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count three); and

second-degree certain persons not to have a weapon, in violation of N.J.S.A.

2C:39-7(b)(1) (count seven). Under the same indictment, defendant was also

charged with three drug offenses because cocaine was found at the murder

scene inside of a jacket believed to belong to defendant.       The trial judge

severed these charges. After the murder trial, the judge sentenced defendant to

a fifty-year prison term, subject to the eighty-five percent period of parole

ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one;

a concurrent eight-year prison term, subject to a four-year period of parole

ineligibility under the Graves Act, N.J.S.A. 2C:43-6, on count three; and a

consecutive eight-year prison term, subject to a four-year period of parole

ineligibility under the Graves Act, on count seven. 1

       On appeal, defendant raises the following points:




1
    Count two was merged with count one.
                                                                       A-3514-17T4
                                       2
POINT I

THE TRIAL COURT ERRED IN RULING,
WITHOUT CONDUCTING A N.J.R.E. 403
ANALYSIS, THAT DEFENSE USE OF EVIDENCE
OF THE VICTIM'S DRUG USE, WOULD "OPEN
THE DOOR" TO THE STATE'S INTRODUCTION
OF EVIDENCE THAT DEFENDANT POSSESSED
DRUGS AT THE TIME OF THE INDICTMENT.
THE       COURT'S          RULING  PREVENTED
DEFENDANT FROM RAISING A THIRD-PARTY
GUILT DEFENSE. U.S. Const. amends. V, VI, AND
XIV; N.J. Const. art. I, ¶¶ 1, 10.

POINT II

THE COURT ERRED IN ADMITTING INTO
EVIDENCE, CONTRARY TO N.J.R.E. 403,
NUMEROUS   INSTANCES OF  DOMESTIC
VIOLENCE AND ASSAULTIVE BEHAVIOR
THEREBY DENYING DEFENDANT A FAIR
TRIAL.

POINT III

THE STATE COMMITTED PROSECUTORIAL
MISCONDUCT         WHEN        THE PROSECUTOR
MISCHARACTERIZED THE DNA FINDINGS IN
THIS CASE DEPRIVING DEFENDANT OF DUE
PROCESS AND A FAIR TRIAL. U.S. Const. amend.
XIV; N.J. Const. art. I, ¶ 10.

POINT IV

THE AGGREGATE SENTENCE OF 58 YEARS
WITH [46.5] YEARS WITHOUT PAROLE IS
MANIFESTLY EXCESSIVE.


                                                A-3514-17T4
                     3
Having reviewed the record and in light of the applicable law, we affirm.

                                       I.

      We discern the following facts from the trial testimony. On March 4,

2014, Jewel Williams and her three-year-old son spent part of the day at her

godparents' home. Throughout the day, she and defendant, whom she had been

dating since June 2013, argued back and forth through texts and phone calls.

Eventually, she stopped responding to defendant's calls and ended their

relationship. Around 9:45 p.m., she and her son returned to their home in

Audubon. They had been living there for a few months, and defendant would

often stay with them, but only Williams was listed as a tenant. The landlord

Kenneth Phillips and a man named John Carey also lived in the home.

      When Williams arrived home on the night of March 4, Carey and

Phillips were watching a movie in the living room. Williams and defendant

had planned to spend the evening together, but Williams testified that because

of their breakup, she advised Phillips not to let anyone in, as she did not want

to be bothered. She then retired to her bedroom with her son. Phillips recalled

that Williams did not want to be bothered but did not remember her asking him

not to let anyone inside. Sometime after Williams went to her room, Phillips




                                                                       A-3514-17T4
                                      4
left to visit his girlfriend, leaving behind only Carey, Williams, and Williams'

son.

       Soon after, while Williams and her son were lying in bed, defendant

entered the home and pushed open the door to Williams' bedroom. Williams

and defendant began to fight, and defendant expressed that he was angry and

wanted to know why Williams had been declining his calls.          After a few

minutes, while defendant began gathering his belongings, Williams left the

room and walked downstairs. Defendant followed, continuing to argue with

her, and then walked out the front door. As he was leaving, Williams yelled,

"You'll never see us again." Defendant turned back toward the house and

pushed open the front door. He reentered the home and moved into the living

room, as he began hitting Williams and pulling out her weave.

       Meanwhile, Carey had been sitting in the living room, continuing to

watch television.   As he noticed Williams' son descend the stairs, he told

Williams and defendant to stop fighting. Defendant turned to Carey and said,

"Do you want to wear this ass whooping?" He and Carey began fighting,

although it is unclear who initiated the fight. When Williams told them to stop

they refused, so she grabbed her son and ran out of the house. As she ran into




                                                                       A-3514-17T4
                                      5
the street, she heard a loud slam, prompting her to turn her attention toward the

house. She saw that Carey had hit his head and fallen in the doorway.

      Williams kept running and saw a cab, but it drove away before she could

make contact. Thereafter, she was almost hit by a dark-colored car, driven by

two women. The car stopped, and Williams was able to force herself and her

son inside the car. She instructed the driver, "Pull off. Pull off. He has a

gun." She later admitted she had never seen a gun but advised the driver

otherwise to convince her to drive away. The driver drove first to the nearby

Legacy Diner and then to the Collingswood Diner, about 2.46 miles from

Williams' home, where she left Williams and her son. Williams had called her

son's father, who met them at the diner and drove them home.

      When Williams arrived home, she saw that Carey was still lying in the

doorway. She called 9-1-1 and told the operator her ex-boyfriend had recently

come to her house and "started going crazy." She ran out and did not know

what happened but had just returned home and saw "one of the guys that was

in the house on the floor." She told the operator that her roommate had let her

ex-boyfriend into the house, who then began hitting her. She did not know

where her ex-boyfriend had gone or what had happened after she left the

house, but she saw that her roommate was lying on the ground, not moving.


                                                                        A-3514-17T4
                                      6
      Not long after Williams hung up the phone, police arrived at the scene

and began to investigate, after determining that Carey was deceased. Williams

consented to a search of her bedroom, the common areas in the home, and her

cell phone. During the search, the police observed "signs of a struggle," as

furniture was turned over, and they noted hair and a Carhartt jacket on the

floor nearby. They recovered the jacket and three items from inside the jacket:

a tube of Blistex lip balm, a government document displaying defendant's

name and date of birth, and cocaine. 2 At some point, they also searched

Carey's bedroom and discovered drug paraphernalia. 3

      Sometime after midnight, Williams was transported to the Audubon

Police Station, where she gave a statement and identified a photograph of

defendant as the man who had fought with Carey. Around 3:48 a.m., after

obtaining Williams' consent, a detective arranged for Williams to make a

recorded call to defendant. During the call, defendant did not admit to hurting

Carey, but he asked Williams if she had his jacket because he needed it back.



2
  As referenced previously, the drug charges pertaining to the discovery of the
cocaine were severed. The jury did not hear about this particular discovery
during the murder trial.
3
   The jury did not hear about this discovery, but it is relevant to one of the
issues on appeal.
                                                                       A-3514-17T4
                                      7
After Williams hung up, defendant called her back. Williams tried to prompt

him to admit he had done something wrong, but she was unsuccessful.

      Later that day, Dr. Gerald Feigin, the Medical Examiner, performed an

autopsy on Carey's body and determined that his death was a homicide caused

by a gunshot wound to the chest. He concluded that it was a contact wound,

based on his observations of a muzzle imprint and soot surrounding the wound.

The bullet specimens removed from Carey's spine were delivered to the

Camden County Ballistics Unit, where a firearms and tool mark identification

specialist identified one of the fragments as "[a] 38 caliber class discharged

metal jacket of an expanding type bullet," a bullet with "the sole purpose of

. . . caus[ing] a massive wound channel to cause severe bleeding."           An

inspection of the Firearms Licensing System showed defendant had never been

issued a permit to carry a handgun in New Jersey.

      The New Jersey State Police Forensic Serology Unit examined the

Carhartt jacket and Blistex tube and swabbed them for DNA. The DNA was

sent to the DNA laboratory to be evaluated against buccal swabs taken from

defendant. Forensic scientist Christopher Szymkowiak analyzed the DNA and

concluded that defendant was a major source of the DNA profile found on the

jacket, meaning "there was more than one person in [the] mixture," but


                                                                      A-3514-17T4
                                     8
defendant had more DNA compared with the others. He further concluded that

only one source of DNA was found inside the Blistex tube, defendant was a

match to the DNA profile, and "the DNA profile . . . occurs in approximately

one in 7.9 billion of the African American population, one in 90 billion of the

Caucasian population, and one in 100 billion of the Hispanic population."

      Before trial, the judge made two evidentiary rulings that are relevant to

this appeal. First, he decided that the State was permitted to offer evidence

that defendant engaged in domestic violence in the moments leading up to

Carey's death. He determined that the evidence was intrinsic evidence because

it explained how "defendant came to interact with [Carey]" and "why . . .

Williams fled her residence with her child." Further, it tended to show motive,

opportunity, and identity. The judge found that admission of this evidence

would not waste time or confuse the issues, and the evidence had "high

probative value" because "the overall incident wouldn't make . . . much sense

. . . without the whole story that the State maintains occurred here, starting

with the interaction between . . . defendant and . . . Williams, his assault of

her, . . . causing her to flee, and him to chase, [Carey] to intercede, and . . .

defendant to shoot [Carey]."        Although the evidence would prejudice




                                                                        A-3514-17T4
                                      9
defendant, it was "less severe than what [the jury] otherwise ha[d] to hear in a

murder case."

         Then, the judge decided that defendant was permitted to offer evidence

of drug paraphernalia found in Carey's bedroom and testimony from Phillips

that Carey was waiting for a drug delivery on the night of the shooting.

However, offering this evidence would allow the State to present evidence tha t

defendant possessed drugs on that night.

         The case proceeded to trial, and counts one, two and three were tried

first. The State offered testimony from Williams, Phillips, the cab driver, the

driver and passenger of the dark-colored car, a friend of defendant, four

forensic experts, and seven investigating officers. Phillips, the cab driver, and

the two women from the dark-colored car corroborated parts of Williams'

story.

         One of the State's experts was Szymkowiak, whom the judge accepted as

an expert in forensic DNA analysis. Szymkowiak explained to the jury the

difference between a match and a source:

              [PROSECUTOR]:        Okay.    Can you tell us the
              difference between a match and a source?

              [WITNESS]: So when someone matches a DNA
              profile, they all match at the source level. The
              difference between a match statement in my

                                                                        A-3514-17T4
                                      10
             conclusions and a statement where I'll say someone's a
             source of a profile is based on the statistic.
                   So when I do the statistical analysis, and I get
             that number that comes out of it, that number has to
             reach a certain threshold to where I'll say someone's a
             source of a profile or just match it.

             [PROSECUTOR]: Okay. And what is that threshold?

             [WITNESS]: Set threshold is one in seven trillion of
             the . . . U.S. population.

He further testified that this statistic represents "the chance that a person

randomly chosen from the population matches the DNA profile . . . generated ."

A source statement means that "this person is the only person who left this

stain on here," whereas a match statement means it cannot definitively be said

that a certain person left the stain.

      During the State's summation, the prosecutor discussed Szymkowiak's

testimony and argued, "The DNA is clear because the Blistex is a match, right,

and it's a match when you look at the . . . statistics. . . . [One] in 7.9 billion

African-Americans have this DNA profile." Defense counsel objected, and the

judge heard counsel at sidebar:

             [DEFENSE COUNSEL]:              That's a very typical
             misrepresentation of the DNA results. The DNA
             results are a . . . certain number in billion have these
             DNA --



                                                                         A-3514-17T4
                                        11
             [PROSECUTOR]: [T]he testimony was this profile
             occurs in one in seven billion people in the population.

             THE COURT: [W]hy don't you just restate it in terms
             of the way it states it in the report . . . just so we're
             clear. I mean, what you said was close to it. I'm not
             going to . . . on the record say you erred, but I think it
             would be clear to avoid this to do that.

In front of the jury, the prosecutor clarified:

             And what the report says, the DNA profile obtained
             from the Blistex occurs in [one] in 7.9 billion of the
             African-American population. Just what I said, okay?
             [One] in 7.9 billion. The population of the United
             States Mr. Szymkowiak told you is only 300 million;
             right? That's an extra three zeros; right? So that's the
             DNA. And the DNA on the jacket, he's the source.
             And what's the number for the . . . source threshold?
             [Seven] trillion, [seven] trillion. He's the source of
             that DNA.

      After the jury returned a guilty verdict on counts one, two, and three, a

short trial on count seven was held.        The only evidence presented was a

stipulation that defendant had a prior conviction for an offense enumerated

under N.J.S.A. 2C:39-9.      The jury also returned a guilty verdict on count

seven.

      At defendant's sentencing hearing, the judge determined that "the

aggravating factors clearly, convincingly, and substantially outweigh the

mitigating factors." He gave "high weight" to aggravating factors three, six,


                                                                          A-3514-17T4
                                       12
and nine. With respect to factor three, the risk that defendant will commit

another crime, he noted that defendant's response to Carey's attempts to stop an

assault on Williams was an "angry physically violent disproportionate

response . . . demonstrat[ing] the risk on the part of . . . defendant to commit

further such acts." With respect to factor six, the extent of defendant's prior

criminal record and the seriousness of prior convictions, he found that

defendant had six prior convictions as an adult, one of which was for unlawful

possession of a handgun.      He did not consider defendant's juvenile and

municipal court history.   Lastly, with respect to factor nine, the need for

deterring defendant, he noted defendant's prior sentencing on three offenses.

He declined to consider general deterrence.

      The judge then considered mitigating factors, two, three, four, five,

eight, nine, and eleven, finding that they did not apply. With respect to factor

two, that defendant did not contemplate his conduct would cause or threaten

serious harm, he found that any such assertion was merely speculative. With

respect to factors three, four, and five, that defendant acted under strong

provocation, that there were substantial grounds excusing or justifying his

conduct, and that the victim's conduct induced defendant's commission of the

crime, the judge found that Carey's attempts to stop defendant from assaulting


                                                                       A-3514-17T4
                                     13
Williams did not constitute sufficient provocation. With respect to factors

eight and nine, that defendant's conduct was the result of circumstances that

were unlikely to reoccur and that defendant's character and attitude indicate he

is unlikely to commit another crime,            the judge noted      defendant's

disproportionate response to Carey's actions. Lastly, with respect to factor

eleven, that imprisonment would entail excessive hardship on defendant or his

dependents, the judge found that any hardship on defendant's family was

typical of the hardship any family would face in this situation.

       In deciding to order a consecutive sentence on count seven, the judge

considered the Yarbough 4 factors.        He found that the crimes and their

objectives were predominantly independent, as "defendant possessed the gun

at the scene and was in violation of the statute in advance of and apart from the

shooting."     Additionally, the convictions in this matter were numerous.

Ultimately, the judge recognized that there can "be no free crime in a system

from which punishment shall fit the crime."

                                       II.

       First, we address defendant's arguments with respect to two evidentiary

rulings. We afford substantial deference to a trial judge's evidentiary rulings


4
    State v. Yarbough, 100 N.J. 627, 643-44 (1985).
                                                                        A-3514-17T4
                                     14
and will only reverse for abuse of discretion. State v. Cole, 229 N.J. 430, 449

(2017). "Under that standard, an appellate court should not substitute its own

judgment for that of the trial court, unless 'the trial court's ruling "was so wide

of the mark that a manifest denial of justice resulted."'" State v. Kuropchak,

221 N.J. 368, 385-86 (2015) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)).

                                        A.

      We first consider defendant's argument that the judge erred in admitting

evidence that defendant assaulted Williams before Carey was shot.

      Generally, relevant evidence, that which has "a tendency in reason to

prove or disprove any fact of consequence," is admissible, N.J.R.E. 401;

N.J.R.E. 402, unless "its probative value is substantially outweighed by the

risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b)

undue delay, waste of time, or needless presentation of cumulative evidence,"

N.J.R.E. 403. In addition, "evidence of other crimes, wrongs, or acts is not

admissible to prove a person's disposition in order to show that on a particular

occasion the person acted in conformity with such disposition" and may only

"be admitted for other purposes, such as proof of motive, opportunity, intent,




                                                                          A-3514-17T4
                                      15
preparation, plan, knowledge, identity or absence of mistake or accident when

such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).

      However, intrinsic evidence "is exempt from the strictures of [N.J.R.E.]

404(b) even if it constitutes evidence of uncharged misconduct that would

normally fall under [N.J.R.E.] 404(b) because it is not 'evidence of other

crimes, wrongs, or acts.'" State v. Rose, 206 N.J. 141, 177 (2011). When

considering evidence of uncharged misconduct, "[t]he threshold determination

. . . is whether the evidence relates to 'other crimes,' and thus is subject to

continued analysis under [N.J.R.E.] 404(b), or whether it is evidence intrinsic

to the charged crime, and thus need only satisfy the evidence rules relating to

relevancy, most importantly [N.J.R.E.] 403."         Id. at 179.     Uncharged

misconduct is considered intrinsic evidence if it "directly proves the charged

offense" or was "performed contemporaneously with the charged crime . . .

[and] facilitate[d] the commission of the charged crime." Id. at 180 (quoting

United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010)).          Evidence

providing background information is often admissible as intrinsic evidence.

See id. at 180-81.

      We agree with the judge's reasoning, which focused on the need to

provide the jury with context to avoid confusion.         Here, the uncharged


                                                                        A-3514-17T4
                                     16
misconduct, assaulting Williams, was performed within minutes, maybe

seconds, of the shooting and was the immediate cause of Carey's interference,

which prompted defendant to shoot him.          Without this evidence, the jury

would have no understanding of how defendant came to be in the living room

and why he began fighting with Carey. To ensure the jury would not misuse

the evidence, the judge instructed the jury twice on its proper use, adjusting

the language used in Model Jury Charges (Criminal), "Proof of Other Crimes,

Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12, 2016) to apply to the use of

intrinsic evidence. Defendant has not suggested any reason for us to doubt the

jurors' ability to properly apply this instruction. See State v. Burns, 192 N.J.

312, 335 (2007) ("One of the foundations of our jury system is that the jury is

presumed to follow the trial court's instructions.").

      Under N.J.R.E. 403, we conclude that admission of this evidence did not

confuse or mislead the jurors, rather it assisted them, and it did not cause

undue delay, waste of time, or needless presentation of cumulative evidence.

Although the evidence was undoubtedly prejudicial to defendant, it was not so

unduly prejudicial as to substantially outweigh the probative value to the State.

The evidence served a clear purpose that was not merely to suggest defendant

had a propensity for violence. Defendant's contention that the judge erred in


                                                                        A-3514-17T4
                                      17
admitting evidence that the assaults began upstairs and thereby increased the

prejudice to him is not persuasive, as it is unlikely that exclusion of part of the

testimony regarding the assault would have caused the jury to reach a different

verdict.

                                        B.

      We next consider defendant's argument that the judge erred in ruling that

if defendant offered testimony that Carey possessed drug paraphernalia and

was waiting for a drug delivery on the night of the shooting, he opened the

door to evidence that he possessed drugs at the same time.

      "The constitutional right to present a defense confers on the defendant

the right to argue that someone else committed the crime." State v. Fortin, 178

N.J. 540, 590 (2004).       Because a defendant need not prove his or her

innocence, there is no requirement to prove a certain probability that someone

else committed the crime. Id. at 591. "Third-party guilt evidence 'need only

be capable of raising a reasonable doubt of [the] defendant's guilt' to warrant

its admissibility."   Ibid. (quoting State v. Koedatich, 112 N.J. 225, 299

(1988)). However, such evidence must satisfy the Rules of Evidence. Ibid.

"[T]here must be 'some link . . . between the third party and the victim or

crime,' [that is] 'capable of inducing reasonable' people to regard the evidence


                                                                          A-3514-17T4
                                      18
'as bearing upon the State's case.'" Ibid. (second alteration in original) (first

quoting Koedatich, 112 N.J. at 300; then quoting State v. Sturdivant, 31 N.J.

165, 179 (1959)).

      Defendant and the State both rely on, as did the trial judge, State v.

Fortin, in which our Supreme Court affirmed the decision to exclude evidence

that a murder victim sold drugs earlier in the day, which precluded the

defendant from arguing the victim "was killed in a drug deal gone awry." 178

N.J. at 592. The Court reasoned that "the evidence did not suggest, even

inferentially, that [the victim's] drug dealing was connected in any way to her

murder." Id. at 593. Although there was evidence that she was generally

involved in drug dealing, there was no evidence at the scene of her murder that

she was dealing at the time of her death. Id. at 592. Nevertheless, the Court

explained that if there had been such evidence, the defendant, who was in

close proximity to the murder, "would have fit the profile of the prototypical

suspect, and the door would have been opened to his own extensive drug

history." Id. at 593.

      "The 'opening the door' doctrine is essentially a rule of expanded

relevancy and authorizes admitting evidence which otherwise would have been

irrelevant or inadmissible in order to respond to (1) admissible evidence that


                                                                        A-3514-17T4
                                     19
generates an issue, or (2) inadmissible evidence admitted by the court over

objection."    State v. James, 144 N.J. 538, 554 (1996).      It "prevent[s] a

defendant from successfully excluding from the prosecution's case-in-chief

inadmissible evidence and then selectively introducing pieces of this evidence

for the defendant's own advantage, without allowing the prosecution to place

the evidence in its proper context." Ibid.

      Considering the Court's discussion in Fortin, we agree with the judge's

analysis here, even though the evidence of defendant's drug possession is

directly related to the charges that were severed. Disregarding for a moment

defendant's proposed use of the evidence linking Carey to drug use on the

night of the shooting, it would appear that defendant's alleged drug possession

was in no way relevant to the murder and weapons charges. However, when

defendant proposed to offer the drug evidence to show that another party had

motive to shoot Carey, his alleged drug possession became relevant.

      Under N.J.R.E. 404(b), evidence of another crime is admissible if it

meets four elements:

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

              2. It must be similar in kind and reasonably close in
              time to the offense charged;


                                                                       A-3514-17T4
                                     20
            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.

            [State v. Cofield, 127 N.J. 328, 338 (1992) (quoting
            Abraham P. Ordover, Balancing the Presumptions of
            Guilt and Innocence: Rules 404(b), 608(b) and
            609(a), 38 Emory L.J. 135, 160-61 (1989)).]

      As discussed above, defendant's alleged drug possession became

evidence of motive once he alleged that a drug dealer may have had motive to

shoot Carey. Although the drug charges are not "similar in kind" to murder

and the weapons charges, we disregard this difference, as the Court has held

that "Cofield's second prong . . . need not receive universal application" unless

the case at issue "replicate[s] the circumstances in Cofield." State v. Williams,

190 N.J. 114, 131 (2007). The State would have been able to present clear and

convincing evidence that defendant possessed the drugs, given that they were

found inside the Carhartt jacket along with a government document with

defendant's name. Further, defendant was identified as the source of some of

the DNA swabbed from the jacket. Finally, we conclude that the probative

value would not have been outweighed by the prejudice to defendant.

Precluding the State from offering evidence that could have certainly cast

doubt on defendant's defense would have unfairly prejudiced the State. In

                                                                        A-3514-17T4
                                     21
addition, to ensure the jurors understood how to use such evidence, the judge

could have instructed them not to consider it as evidence that defendant was

more likely to commit a crime.

                                      III.

      Next, we address defendant's argument that the prosecutor committed

the "prosecutor's fallacy" when she mischaracterized the DNA expert's

testimony during her summation. When reviewing a prosecutor's comments

during summation, we consider whether the conduct "substantially prejudiced

[the] defendant's fundamental right to have a jury fairly evaluate the merits of

his [or her] defense." State v. Timmendequas, 161 N.J. 515, 575 (1999). "A

prosecutor's remarks and actions must at all times be consistent with his or her

duty to ensure that justice is achieved." State v. Williams, 113 N.J. 393, 447-

48 (1988). However, the prosecutor is not precluded "from making a 'vigorous

and forceful presentation of the State's case.'" State v. Ramseur, 106 N.J. 123,

288 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)). "[S]o long as he

[or she] stays within the evidence and the legitimate inferences therefrom the

[p]rosecutor is entitled to wide latitude in his [or her] summation." State v.

R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437

(1968)).


                                                                       A-3514-17T4
                                     22
      In deciding whether a prosecutor's statement was prejudicial, we

"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." Id. at 332-33 (quoting State v. Frost,

158 N.J. 76, 83 (1999)). However, even if a remark was prejudicial, we will

only reverse if the error was "of such a nature as to have been clearly capable

of producing an unjust result." Id. at 330 (quoting R. 2:10-2). There must be a

real possibility that the error "led the jury to a verdict it otherwise might not

have reached." Ibid. (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

      The United States Supreme Court has defined the prosecutor's fallacy:

            The prosecutor's fallacy is the assumption that the
            random match probability is the same as the
            probability that the defendant was not the source of
            the DNA sample. In other words, if a juror is told the
            probability a member of the general population would
            share the same DNA is [one] in 10,000 (random match
            probability), and he [or she] takes that to mean there is
            only a [one] in 10,000 chance that someone other than
            the defendant is the source of the DNA found at the
            crime scene (source probability), then he [or she] has
            succumbed to the prosecutor's fallacy. It is further
            error to equate source probability with probability of
            guilt, unless there is no explanation other than guilt
            for a person to be the source of the crime-scene DNA.
            This faulty reasoning may result in an erroneous
            statement that, based on a random match probability

                                                                        A-3514-17T4
                                     23
            of [one] in 10,000, there is a 0.01% chance the
            defendant is innocent or a 99.99% chance the
            defendant is guilty.

            [McDaniel v. Brown, 558 U.S. 120, 128 (2010)
            (citation omitted).]

      During the State's summation, the prosecutor accurately stated that

defendant was the source of DNA found on the Carhartt jacket and a match to

the DNA found inside the Blistex tube. She further stated the probability that

another African American shared the same profile. Had she stated that the

probability represented the chance that someone else was the source of the

DNA, there would be greater cause for concern.

      However, even if the prosecutor's characterization was incorrect, any

error would have been harmless, as defendant was linked to the scene through

Williams' testimony, the identification of defendant as the source of DNA

found on the Carhartt jacket, and the government document with defendant's

name found inside the jacket. Additionally, Szymkowiak testified as to the

difference between a match and a source, and the judge instructed the jury that

in deciding the facts, they were only permitted to consider the witness

testimony and physical evidence presented, not the arguments made during

summations.



                                                                       A-3514-17T4
                                    24
                                      IV.

      Finally, we address defendant's argument that his fifty-eight year

sentence is manifestly excessive. We review sentencing decisions for an abuse

of discretion and will only reverse if there was "a clear error of judgment or a

sentence that 'shocks the judicial conscience.'" State v. Blackmon, 202 N.J.

283, 297 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)).

                                      A.

      Defendant appears to dispute the "high weight" given to aggravating

factor six, and he suggests there was sufficient evidence to find mitigating

factors two, three, and four.

      In deciding an appropriate sentence, the judge "must identify any

relevant aggravating and mitigating factors set forth at N.J.S.A. 2C:44-1(a) and

(b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The judge

must consider any mitigating factor brought to his or her attention and find

such factor if there is sufficient evidence supporting it. Ibid. When balancing

the aggravating and mitigating factors, the judge must engage in a qualitative

assessment and assign appropriate weight to each factor. Id. at 65.




                                                                       A-3514-17T4
                                     25
      We conclude that the judge appropriately considered the proposed

aggravating and mitigating factors and explained his reasoning for finding

three aggravating factors and no mitigating factors.

      We reject defendant's argument that the judge erred in declining to give

weight to defendant's non-violent history. Aggravating factor six does not

require the judge to consider whether a defendant's criminal history

encompasses violent crimes. See N.J.S.A. 2C:44-1(a)(6) ("The extent of the

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

he has been convicted[.]"). Here, the judge ignored defendant's juvenile and

municipal court history and then noted that defendant had multiple drug

offense convictions and one conviction for unlawful possession of a handgun.

Although these are non-violent crimes, they are evidence of defendant's

criminal history as an adult, which is significant, given he was twenty-seven

years old at the time of sentencing in this matter.

      We also reject defendant's contentions that there was sufficient evidence

of mitigating factors two, three, and four. It is only speculative that defendant

did not contemplate harm to Carey, given the circumstances surrounding the

shooting and Dr. Feigin's testimony that the gun used to shoot Carey was

pressed into his body when it was fired.        Further, Carey's efforts to stop


                                                                        A-3514-17T4
                                      26
defendant from assaulting Williams did not warrant the shooting, especially

since there is no evidence that Carey attempted to seriously harm or kill

defendant.

      Defendant did not receive the maximum sentence for any of his

convictions. See N.J.S.A. 2C:11-3(b)(1); N.J.S.A. 2C:43-6(a)(2). Considering

the relevant aggravating factors, his sentence does not shock the conscience,

and we perceive no reason to disturb the judge's decision.

                                      B.

      Defendant argues that the judge erred in imposing a consecutive

sentence on count seven, the certain persons offense.

      "When multiple sentences of imprisonment are imposed on a defendant

for more than one offense, . . . such multiple sentences shall run concurrently

or consecutively as the court determines at the time of sentence[.]" N.J.S.A.

2C:44-5(a). Our Supreme Court has created a list of principles to consider

when deciding whether to impose a consecutive or concurrent sentence:

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

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



                                                                       A-3514-17T4
                                     27
            (3) some reasons to be considered by the sentencing
            court should include facts relating to the crimes,
            including whether or not:

                  (a) the crimes and their objectives were
                  predominantly independent of each other;

                  (b) the crimes involved separate acts of violence
                  or threats of violence;

                  (c) the crimes were committed at different times
                  or separate places, rather than being committed
                  so closely in time and place as to indicate a
                  single period of aberrant behavior;

                  (d) any of the crimes involved multiple victims;

                  (e) the convictions for which the sentences are
                  to be imposed are numerous;

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

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

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

      We reject defendant's argument that the absence of factors 3(b), (c), and

(d) mandated a concurrent sentence. While "there is no statutory mandate that

the court impose a consecutive sentence for a certain persons conviction,"

5
   Guideline number six was superseded by a statutory amendment to N.J.S.A.
2C:44-5(a). State v. Carey, 168 N.J. 413, 423 n.1 (2001); see L. 1993, c. 223,
§ 1.
                                                                       A-3514-17T4
                                    28
State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010), the Yarbough

factors are just guidelines, and the judge "retain[s] a fair degree of discretion"

in sentencing a defendant.      Carey, 168 N.J. at 427.    Here, in imposing a

consecutive sentence, the judge considered that the crimes and their objectives

were predominantly independent, and he recognized that there can "be no free

crime in a system from which punishment shall fit the crime." We agree, as

neither crime was a prerequisite to carry out the other, and the purposes for

criminalizing these acts are plainly distinct.

      To the extent we have not addressed defendant's remaining arguments,

we conclude they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.




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