                             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                        NOT FOR PUBLICATION WITHOUT THE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-5528-14T2
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MAURICE GOODEN, a/k/a MARK
THOMAS,

     Defendant-Appellant.
___________________________________

              Submitted April 4, 2017 – Decided September 26, 2017

              Before Judges Ostrer and Vernoia.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Atlantic County,
              Indictment No. 13-06-1626.

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

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Melinda A. Harrigan,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

        The opinion of the court was delivered by

OSTRER, J.A.D.
     Defendant Maurice Gooden appeals from his 2015 conviction

following a jury trial of aggravated sexual assault and robbery,

and his extended term sentence.       We affirm.

     We discuss the pertinent facts when we address each legal

issue, but begin with a brief overview.            Ruth1 was sexually

assaulted and robbed in the early morning hours of April 25, 2002,

in Atlantic City.     As she walked home from a bus stop, a young

black man she had spotted on the bus grabbed her from behind,

attacked her, and dragged her into an alley.         She struggled to

break free, grabbed his knit hat and briefly saw his face.           He

then caused her head to hit a wall, knocking her out.        When she

awoke, she was still in the alleyway, her pants gone, her underwear

halfway down her legs, and her purse and cellphone missing.

     Later that day, Ruth told police her assailant was a black

man in his mid-twenties, about six-foot-one-inch or six-foot-two-

inches tall.   A Sexual Assault Nurse Examiner examined her later

at the hospital.    Ruth could not recall if physical sexual contact

took place.    However, the nurse discovered bruising and redness

in Ruth's genital area, consistent with sexual assault.       Vaginal

and cervical swabs were found to contain semen.




1
  We use pseudonyms to protect the identity and privacy of the
victim.

                                  2                           A-5528-14T2
     While Ruth was in the hospital, police canvassed the area of

the assault.    They found keys, apparent blood, and an Atlantic

County welfare identification card that belonged to defendant.

Ruth failed to identify defendant from a photo array, and police

unsuccessfully sought witnesses using defendant's photo.

     Several years after the attack, the New Jersey State Police

matched DNA recovered in Ruth's case to DNA attributed to defendant

in New Jersey's DNA database.        The State then obtained a buccal

swab from defendant and concluded he was a likely contributor to

the DNA mix recovered from Ruth.2           The grand jury thereafter

charged   defendant   with   two   counts   of   first-degree   aggravated

sexual assault — sexual penetration during a robbery and against

a physically helpless victim, N.J.S.A. 2C:14-2(a) and N.J.S.A.

2C:14-2(a)(7); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1); and second-degree robbery, N.J.S.A. 2C:15-1.

     After a three-day trial, the jury convicted defendant on all

counts.   Judge Bernard E. DeLury, Jr., imposed a fifty-five-year

persistent-offender-extended term, N.J.S.A. 2C:44-3(a), subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law,

N.J.S.A. 2C:7-1 to -23.



2
  Apparently, the initial match was found in December 2006;
defendant was deemed incompetent to proceed for a period of years;
and the buccal swab was not collected until 2013.

                                     3                             A-5528-14T2
     On appeal, defendant presents the following points in his

counseled brief:

          POINT I

          THE DESCRIPTION OF MR. GOODEN'S IDENTIFICATION
          CARD AS A "WELFARE CARD" VIOLATED HIS RIGHT
          TO A FAIR TRIAL. (Not Raised Below).

          POINT II

          THE CUMULATIVE EFFECT OF REPEATED INSTANCES
          OF   PROSECUTORIAL  MISCONDUCT  WARRANTS   A
          REVERSAL OF MR. GOODEN'S CONVICTIONS.   (Not
          Raised Below).

          POINT III

          THE ADMISSION INTO EVIDENCE OF A HIGHLY
          PREJUDICIAL PHOTOGRAPH [DE]PRIVED MR. GOODEN
          OF A FAIR TRIAL.

          POINT IV

          THE TRIAL COURT'S OMISSION OF JURY CHARGES IN
          SUPPORT OF MR. GOODEN'S DEFENSE VIOLATED HIS
          RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S.
          Const. Amends. V, VI, and XIV; N.J. Const.
          (1947), Art. I, Pars. 1, 9, and 10.)     (Not
          Raised Below).

          POINT V

          THE TRIAL COURT ABUSED ITS DISCRETION       BY
          IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Defendant also filed a pro se supplemental brief.3



3
  The pro se brief lacks point headings, contrary to Rule 2:6-
2(a)(1), and is difficult to decipher, but we understand defendant
to contend the State failed to prove his guilt beyond a reasonable
doubt and the State obtained his buccal swab unlawfully.

                                4                          A-5528-14T2
                                      I.

     We begin with defendant's contention the State wrongfully

implied he had a motive to commit robbery by repeatedly referring

to his welfare ID card and emphasizing his poverty.               At trial,

both the prosecutor and defense counsel often referred to the card

found at the scene as a welfare ID.

     As defense counsel did not object, we apply a plain error

standard of review, and determine whether "defendant [met] the

burden of proving that the error was clear and obvious and that

it affected his substantial rights."              State v. Koskovitch, 168

N.J. 448, 529 (2001); see also State v. Williams, 168 N.J. 323,

336 (2001) (stating defendant must show "the error possessed a

clear capacity for producing an unjust result"); R. 2:10-2.                Our

review "depends on an evaluation of the overall strength of the

State's case."   State v. Nero, 195 N.J. 397, 407 (2008) (internal

quotation marks and citation omitted).

     We are convinced there was no error, let alone plain error.

Prosecutors   generally   may   not    "use   a    defendant's   poverty    to

establish a criminal motive."         State v. Stewart, 162 N.J. Super.

96, 100 (App. Div. 1978).         Nor may they introduce "evidence

regarding whether or not a defendant has a regular source of income

. . . ."   State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.),

certif. denied, 177 N.J. 577 (2003).

                                      5                              A-5528-14T2
     However,      the   State      did   not    refer   to   the    welfare    ID    to

establish defendant's financial status, his motive to rob, or his

criminal intent.         It was introduced to place defendant at the

crime scene.      Defendant's failure to object undermines his newly

minted claim that the evidence was misused.                   See State v. Smith,

212 N.J. 365, 407 (2012) (noting that the defense counsel's failure

to make timely objections indicated no perceived prejudice), cert.

denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

Since "'there [was] something more than poverty to tie' defendant

to the crime," we find no error.               See State v. Zola, 112 N.J. 384,

428 (1988) (quoting Mathis, supra, 47 N.J. at 472).

                                          II.

     Also    as    a   claim   of    plain      error,    defendant       asserts    the

prosecutor engaged in misconduct by: (1) relying on facts not in

evidence    to    garner   sympathy       for    the   victim;      (2)   denigrating

defendant; and (3) issuing a "call to arms" in her summation.

     Well-settled principles guide our review.                        Prosecutorial

misconduct may compel reversal if it "was so egregious that it

deprived the defendant of a fair trial."                 State v. Frost, 158 N.J.

76, 83 (1999).         More specifically, the conduct must be "clearly

and unmistakably improper, and must have substantially prejudiced

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

the merits of his defense."           State v. Smith, 167 N.J. 158, 181-82

                                           6                                   A-5528-14T2
(2001)   (internal   quotation   marks   and   citation   omitted).     We

consider three factors: "(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."     Frost, supra, 158 N.J. at 83.           The claimed

instances of misconduct do not meet the test.

     During her opening, the prosecutor introduced Ruth to the

jury and explained the difficulties she might have testifying

against her attacker:

                You   should   know   coming  into   this
           courtroom and confronting the defendant after
           all these years is going to be difficult for
           her. She dreads having to come here and sit
           in that chair and explain to a courtroom full
           of people about this horrible painful night
           that she just as soon forget. [Ruth] has tried
           to put the events of April 25, 2002 behind
           her. She doesn't want to bring this all up
           again.   She's scared and she's embarrassed,
           and understand she's never fully acknowledged
           or accepted what happened to her that night.
           Keep in mind during the course of this trial
           the external factors that might be at play,
           rely on your common sense and life experience
           to tell you about cultural attitudes regarding
           sexual assault.

     We find no merit to defendant's argument that the prosecutor

argued facts not in evidence.     As permitted, the prosecutor simply

presented an overview of facts she expected to present during

trial.   See State v. Torres, 328 N.J. Super. 77, 95 (App. Div.

                                   7                             A-5528-14T2
2000) ("A prosecutor's opening statement should provide an outline

or roadmap of the State's case.    It should be limited to a general

recital of what the State expects, in good faith, to prove by

competent evidence.").   The State later elicited, through Ruth and

her ex-husband, the emotional toll the sexual assault had on Ruth

and her family.   The State did not use Ruth to inflame the jury.

Unlike in State v. Pennington, 119 N.J. 547, 566-67 (1990), upon

which defendant relies, the prosecutor in this case did not place

significant emphasis on Ruth as a sympathetic character.          She

merely described briefly the struggle Ruth, as a sexual assault

victim, might experience while testifying.     The prosecutor asked

a single question about how the assault affected her marriage.

     We also reject defendant's contention that the prosecutor

improperly called him a liar.     She stated in opening:

          You, the jury, are the trier of fact. Listen
          carefully to all the witnesses.     Use your
          common sense. Does what a witness say ring
          true? Does it make sense? Who has a motive
          to fabricate? At the end of this trial, I'm
          confident when you see and hear all the
          evidence, you will be able to find the
          defendant guilty on all counts.

Defendant again misplaces reliance on Pennington, in which "the

prosecutor called [the] defendant 'a jackal,' 'a stranger to

humanity,' 'a coward,' and someone with 'ice . . . where his heart

should be,'" and a "'liar [who] catches himself in his own coils


                                  8                          A-5528-14T2
. . . .'"      Id. at 576-77.       Such "[e]pithets [were] especially

egregious when . . . the prosecutor pursue[d] a persistent pattern

of misconduct throughout the trial."         Id. at 577.     Nothing of the

sort occurred here.         The prosecutor simply invited the jury to

assess the weight and reliability of the testimony to come.

      Finally, we decline to reverse the trial court based on

defendant's contention that the prosecutor issued an impermissible

"call to arms" that invited a verdict "based on partisanship and

outrage."     She stated:

                  It's time, ladies and gentlemen of the
             jury, it's time, it's time to end this once
             and for all. It's been 13 long years. You
             have the power. You can tell - - you can tell
             [defendant] I know what you did to [Ruth] that
             night. I know what you did to her on April
             25, 2002. I know that you beat her, I know
             that you sexually assaulted her, and I know
             that you robbed her. You have the power. You
             can tell him, find him guilty on all counts.

      "Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to the

scope of the evidence presented."          Frost, supra, 158 N.J. at 82.

However, they may not issue a "call to arms," asking the jury to

"send a message" to the defendant and the public, since such

statements could "mislead a jury as to its role and duty," State

v.   Hawk,   327   N.J.   Super.   276,   282-83   (App.   Div.   2000),   and

"improperly divert jurors' attention from the facts of the case


                                      9                              A-5528-14T2
and intend to promote a sense of partnership with the jury that

is incompatible with the jury's function."      State v. Neal, 361

N.J. Super. 522, 537 (App. Div. 2003).

       Although forceful, the prosecutor's statement here was not

an inappropriate call to arms.     The prosecutor did not imply the

jurors would violate their oaths if they failed to convict, see

Pennington, supra, 119 N.J. at 576, nor did she suggest the jury

had a societal duty to convict, Hawk, supra, 327 N.J. Super. at

282.    Instead, when considered in context, the prosecutor urged

the jury to reach a verdict based on the evidence.      Furthermore,

even assuming for argument's sake that the prosecutor's comment

crossed the line, it did not amount to plain error in light of the

substantial evidence of guilt.    See State v. Feal, 194 N.J. 293,

313 (2008) (finding an improper prosecutorial statement was not

plain error based on the evidence of guilt).

                                 III.

       Defendant argues the trial court erred by admitting into

evidence, over his objection, a photograph of him from 2001 or

2002.   The photo was not used in the photo array.   Like the welfare

ID photo, it depicted defendant as a man in his twenties with

facial hair.   Ruth testified that the man on the bus who attacked

her had facial hair.    By the time of trial, defendant was in his



                                 10                           A-5528-14T2
forties.        Overruling    the   defense    objection,         the   trial     court

explained:

            I think the objection regarding whether or not
            [the photograph] was used during the lineup
            is not appropriate at this point.          The
            question in my mind is, was this photograph
            obtained at or near the time of the offense
            to identify the defendant. If that's the case
            and that's the foundation, then the objection
            would be overruled and the photograph may be
            admitted into evidence subject to your further
            inquiry about photo lineups that may be
            testified to later.

     Relying      on     N.J.R.E.   403,     defendant      argues      the   photo's

probative value was substantially outweighed by the risk of undue

prejudice, because it "misled the jury into believing that it was

more likely [defendant] committed the crime because he had facial

hair . . . ."      We disagree.

     We     accord       substantial     deference     to     a     trial     court's

evidentiary rulings, see State v. Morton, 155 N.J. 383, 453 (1998),

and will overturn a N.J.R.E. 403 determination "[o]nly where there

is a clear error of judgment," State v. Covell, 157 N.J. 554, 569

(1999) (internal quotation marks and citation omitted).                          "[T]he

admission of photographs having some probative value, even where

cumulative and somewhat inflammatory, rests with the discretion

of the trial judge, whose ruling will not be overturned save for

abuse,     as    where    logical      relevance     will    unquestionably            be

overwhelmed by the inherently prejudicial nature of the particular

                                        11                                      A-5528-14T2
picture."    State v. Conklin, 54 N.J. 540, 545 (1969) (internal

quotation marks and citation omitted).

     The    photograph   here   was   neither   inflammatory   nor    unduly

prejudicial.    It put in perspective for the jury what defendant

looked like in 2001 or 2002, which was relevant given the lapse

of time between the crime and the trial.

                                      IV.

     Also raised as plain error, defendant contends the trial

court should have sua sponte delivered a jury instruction on third-

party guilt.     Defendant relies on brief testimony that police

interviewed a man who was heard inquiring about the assault,

shortly after it occurred, at the casino where Ruth had worked.

The man did not fit Ruth's description of her attacker.              The man

was thirty-nine, not in his twenties, and was a few inches shorter

than the attacker.

     A defendant is entitled to introduce evidence of third-party

guilt if it "has a rational tendency to engender a reasonable

doubt with respect to an essential feature of the State's case."

State v. Cotto, 182 N.J. 316, 332 (2005) (internal quotation marks

and citations omitted).         The defendant cannot simply present

evidence of "some hostile event and leave its connection with the

case to mere conjecture."       State v. Sturdivant, 31 N.J. 165, 179

(1959).     Instead, the defendant must demonstrate "'some link

                                      12                             A-5528-14T2
between the third-party and the victim or the crime.'"           Cotto,

supra, 182 N.J. at 333 (quoting State v. Koedatich, 112 N.J. 225,

301 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L.

Ed. 2d 803 (1989)).

     Aside from his inquisitiveness, no trial evidence connected

the other man to the assault.    Furthermore, the State's scientific

expert testified that the chance anyone other than defendant

contributed to the DNA sample taken from Ruth was extremely remote.

Thus, the record did not justify, let alone compel, a third-party

guilt instruction.

                                  V.

     Finally, we discern no merit in defendant's challenge to his

sentence.   The court found that aggravating factors three ("[t]he

risk that the defendant will commit another offense"); six ("[t]he

extent of the defendant's prior criminal record and the seriousness

of the offenses which he has been convicted"); and nine ("[t]he

need for deterring the defendant and others from violating the

law"), N.J.S.A. 2C:44-1(a)(3), (6), and (9), outweighed mitigating

factor six ("[t]he defendant has compensated or will compensate

the victim of his conduct for the damage or injury that he

sustained"), N.J.S.A. 2C:44-1(b)(6).     The court gave aggravating

factor three "great weight" due to defendant's untreated mental

health   condition,   constant   substance   abuse,   and   anti-social

                                  13                            A-5528-14T2
tendencies; but the court placed "greatest weight" on factor six,

because of defendant's extensive adult and juvenile record, which

involved assault, weapons offenses, and criminal sexual contact,

and was "escalating rapidly and dangerously."

       We discern no error in the court's rejection of defendant's

proffered mitigating factors.        Noting that defendant chose not to

treat his known mental health conditions, the court declined to

find   that   defendant's   mental   illness   constituted    a   "ground[]

tending to excuse or justify [his] conduct," N.J.S.A. 2C:44-

1(b)(4), or would render the hardship of imprisonment excessive.

N.J.S.A. 2C:44-1(b)(11).

       In sum, we are satisfied that the court set forth its reasons

for     defendant's   sentence       with   sufficient       clarity     and

particularity, its findings were supported by the record, the

court correctly applied the Code's sentencing guidelines, and did

not abuse its substantial sentencing discretion.             See State v.

Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165,

180-81 (2009); State v. Roth, 95 N.J. 334, 363-65 (1984).

                                     VI.

       Finally, the arguments presented in defendant's pro se brief

lack sufficient merit to warrant discussion in a written opinion.

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

       Affirmed.

                                     14                             A-5528-14T2
