                                NOT FOR PUBLICATION WITHOUT THE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-4010-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIO GAYLES, a/k/a
AMEIR CONNEL, and
MARIO GILLS,

     Defendant-Appellant.
____________________________

                   Argued telephonically June 3, 2020 –
                   Decided August 4, 2020

                   Before Judges Koblitz, Gooden Brown, and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-02-0637.

                   Whitney Faith Flanagan, Assistant Deputy Public
                   Defender, argued the cause for appellant (Joseph E.
                   Krakora, Public Defender, attorney; Whitney Faith
                   Flanagan, of counsel and on the brief).

                   Hannah Faye Kurt, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Theodore N. Stephens II, Acting Essex
             County Prosecutor, attorney for respondent; Hannah
             Faye Kurt, of counsel and on the briefs).

             Appellant filed a pro se supplemental brief.

PER CURIAM

       Following a jury trial, defendant was convicted of first-degree murder,

N.J.S.A. 2C:11-3(a)(1), (2), (count one); second-degree unlawful possession of

a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a

handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three).         The

convictions stemmed from defendant fatally shooting an associate following a

physical altercation on the street, during which the associate assaulted

defendant.    After the assault, defendant left the area but returned shortly

thereafter, shot the associate, and fled on foot. The State's proofs included

accounts from two eyewitnesses who had known defendant and the victim for

nearly two decades, as well as surveillance video of the shooting from different

security cameras in the area.     The trial court denied defendant's pre-trial

Miranda1 motion to exclude his statement to detectives, in which he admitted

selling drugs with the victim and having disagreements with him over money,

but denied shooting him. The court also granted the State's in limine motion to



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-4010-17T4
                                        2
introduce evidence of the victim's and defendant's drug dealing activities

pursuant to N.J.R.E. 404(b). Although defendant denied shooting the victim in

his statement, at trial, his defense was that he committed passion/provocation

manslaughter, not murder.

      On January 26, 2018, defendant received an aggregate sentence of life

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.2 He now appeals from the February 5, 2018 conforming judgment of

conviction. In his counseled brief, defendant raises the following points for our

consideration:

            POINT I

            BECAUSE PROVOCATION WAS THE CENTRAL
            ISSUE IN THE CASE, THE TRIAL COURT'S
            REFUSAL       TO       TAILOR       THE
            PASSION/PROVOCATION         INSTRUCTION
            DENIED [DEFENDANT] A FAIR TRIAL.

            POINT II

            BECAUSE [DEFENDANT]'S MENTAL STATE WAS
            IN DISPUTE, THE TRIAL COURT'S REFUSAL TO
            TAILOR THE FLIGHT INSTRUCTION DENIED
            [DEFENDANT] A FAIR TRIAL.



2
   "[NERA] requires that each defendant sentenced to life imprisonment serve
sixty-three and three-quarters years before parole eligibility." State v. Fortin,
400 N.J. Super. 434, 449 n.5 (App. Div. 2008); see N.J.S.A. 2C:43-7.2(b).
                                                                         A-4010-17T4
                                       3
POINT III

PERVASIVE PROSECUTORIAL MISCONDUCT
DENIED [DEFENDANT] A FAIR TRIAL

     A. THE PROSECUTOR'S REPEATED
     MISREPRESENTATIONS     OF THE
     EVIDENCE IN SUMMATION DENIED
     [DEFENDANT] A FAIR TRIAL.

     B. THE PROSECUTOR'S REPEATED
     DENIGRATIONS OF THE DEFENSE
     AND DEFENSE COUNSEL DENIED
     [DEFENDANT] A FAIR TRIAL.

     C. THE PROSECUTOR'S COMMENT
     ON [DEFENDANT]'S DECISION NOT
     TO TESTIFY DENIED [DEFENDANT] A
     FAIR TRIAL.

     D. THE COMBINATION OF REPEATED
     COMMENTS     DENIGRATING   THE
     DEFENSE, MISREPRESENTING THE
     EVIDENCE,     AND      DRAWING
     ATTENTION    TO   [DEFENDANT]'S
     DECISION   NOT     TO   TESTIFY
     WARRANT REVERSAL.

POINT IV

THE ERRONEOUS ADMISSION OF OTHER-
CRIMES EVIDENCE THAT [DEFENDANT] WAS A
DRUG DEALER DENIED HIM A FAIR TRIAL.

POINT V

THE  CUMULATIVE         EFFECT   OF   THE
AFOREMENTIONED          ERRORS     DENIED

                                            A-4010-17T4
                    4
            DEFENDANT A FAIR TRIAL.           (NOT RAISED
            BELOW).

            POINT VI

            [DEFENDANT]'S    SENTENCE    OF    LIFE
            IMPRISONMENT IS MANIFESTLY EXCESSIVE.

      In his pro se brief, defendant raises the following points for our

consideration:

            POINT I

            THE TRIAL COURT'S FAILURE TO CHARGE THE
            JURY ON THE LESSER-INCLUDED OFFENSES OF
            AGGRAVATED        MANSLAUGHTER      AND
            RECKLESS     MANSLAUGHTER      DEPRIVED
            [DEFENDANT]    OF   DUE   PROCESS   AND
            [DEFENDANT'S] RIGHT TO A FAIR TRIAL. . . .
            (NOT RAISED BELOW).

                 A. DEFENSE COUNSEL FAILED TO
                 OBJECT FOR LESSER INCLUDED
                 OFFENSES    OF   AGGRAVATED
                 MANSLAUGHTER AND RECKLESS
                 MANSLAUGHTER JURY CHARGE.

            POINT II

            [DEFENDANT] WAS DENIED A FAIR TRIAL
            BECAUSE THE PROSECUTOR FAILED TO
            DISCLOSE A PSYCHIATRIC REPORT WHICH
            INDICATED THE STATE'S WITNESS WAS
            INCOMPETENT TO STAND TRIAL FOR SEVERE
            PSYCHIATRIC CONCERNS AND SUICIDAL
            IDEATION. (NOT RAISED BELOW).


                                                                 A-4010-17T4
                                   5
                  A. THE EVIDENCE WITHHELD
                  CONSTITUTES NEWLY DISCOVERED
                  EVIDENCE.

Having considered the arguments and applicable law, we affirm.

                                       I.

      We glean these facts from the trial record. At approximately 10:00 p.m.

on July 15, 2015, while walking to the store to get cigarettes, Francine Wilson

observed defendant shoot Icrish Bostic on the corner of Springfield Avenue and

Durand Place in Irvington. At the time of the shooting, Wilson had known

defendant for approximately eighteen years. She testified that she "used to be

an addict" and would "buy [drugs] from [defendant]." She met Bostic "around

the same time" as defendant, and knew Bostic from "being on the streets" and

buying drugs from him as well.

      Just prior to the shooting, as Wilson approached the corner, she had

observed a man she had "never seen before" shoving and arguing with Bostic,

while Bostic just "walk[ed] real slow, . . . [not] saying anything." After the

shooting, "[o]nce [Bostic] fell" to the ground, Wilson stated "[defendant] got a

little closer," and "shot [him] up." When the shooting finally stopped, Wilson

"panicked" and "crawled under [a] car" that "was at the corner."




                                                                        A-4010-17T4
                                       6
      According to Wilson, earlier in the afternoon on the day of the shooting,

while she and defendant were in the car of a mutual friend, defendant started

"fussing" about Bostic, saying that he was "tired of him" and that he was "going

to kill him." Wilson testified that the mutual friend cautioned defendant not to

"say that," and told defendant he did not "mean that" because he and Bostic were

"real good friends." Defendant and Bostic "grew up together" and Wilson

believed they "were very close."      Wilson explained that although "[t]hey

argued," usually "when they were drinking,"3 they "still hung together."

      Magdy Mohammed, who owned a pizzeria on the corner of Springfield

Avenue and Durand Place, also witnessed the shooting outside of his pizzeria

and identified defendant as the shooter. According to Mohammed, a little after

10:00 p.m. on July 15, while he was carrying bags from his car to his store, he

observed defendant and Bostic fighting but "somebody g[o]t involved and

[broke up] the fight." 4 Shortly thereafter, while Mohammed was "smok[ing] a

cigarette" outside his pizzeria, he observed defendant holding a gun, "lift his

arm, and . . . start shooting" at Bostic. After hearing "three shots," Mohammed


3
  Wilson described Bostic as "an alcoholic" who had "anger issues" when he
was drinking.
4
  Both Mohammed and Wilson acknowledged that Bostic was much bigger than
defendant.
                                                                           A-4010-17T4
                                       7
left, afraid that defendant would "shoot [him] too" because "[he] saw what

happened."

      Like Wilson, Mohammed testified that he had also known defendant and

Bostic for approximately eighteen years before the shooting. According to

Mohammed, he would observe them "[j]ust hanging out" in front of his store.

Although he "saw . . . people . . . hand them money [sometimes]," and they

handed something back in return, he "[did not] know what [it was]." Mohammed

believed that defendant and Bostic were friends and "may have lived together."

      Irvington Detective Christopher Burrell was one of the first officers to

respond to the scene of the shooting. Upon arrival, he found Bostic "lying on

the sidewalk face down bleeding from the head." Bostic was pronounced dead

at the scene and removed by the Medical Examiner, where a subsequent autopsy

revealed a total of "nine" gunshot wounds, three to the head. The cause of death

was reported as "multiple gunshot wounds to [the] head, torso, and extremities,"

and the "manner [of death was] homicide." 5

      Along with other responding officers, Burrell secured the scene, identified

shell casings, canvassed for witnesses, and located surveillance videos from



5
  The toxicology analysis showed that Bostic's blood alcohol level was above
the legal limit to drive.
                                                                         A-4010-17T4
                                       8
security cameras in the area, including Mohammed's pizzeria, before turning the

case over to the Essex County Prosecutor's Office (ECPO) Crime Scene Unit.

An ECPO detective recovered five projectiles and eleven 9-millimeter shell

casings, all of which were "discharged" from the same firearm, "a 9[-

]millimeter, semiautomatic."

      The surveillance videos captured the shooting from different angles, and

corroborated the accounts of the two eyewitnesses. In one surveillance video,

Bostic and an unidentified male are depicted engaged in a "verbal dispute."

When defendant "[came] into the scene on the video," a "physical altercation

occur[ed] between . . . Bostic and [defendant]." Bostic, who, based on the

Medical Examiner's report "weighed approximately 275 pounds," initiated the

fight and "punch[ed defendant] in the face." Bostic then "grab[bed defendant]

from behind," and "thr[e]w him to the ground," pulling defendant's "hair while

he [was] on the ground."

      The video showed defendant then leaving the area and going "around the

corner" onto Durand Place, with Bostic following in that direction. Another

surveillance video showed defendant "passing . . . in front of the camera" on

Durand Place, "then a minute or so later com[ing] right back around the corner

with a handgun in his [right] hand." After defendant came back from around the


                                                                       A-4010-17T4
                                      9
corner holding the gun, he "shot the first shot" at Bostic. When Bostic "fell to

the ground," defendant walked towards Bostic and continued to shoot at him.

Afterwards, another surveillance video "capture[d defendant] fleeing onto

Durand Place" and "go[ing] up into a property on the right side." Defendant

then "c[a]me back out into the street area" and "[ran] away . . . on Durand Place."

      Based on the eyewitness accounts and the surveillance videos, on July 17,

2015, a warrant was issued for defendant's arrest. Approximately one week

later, on July 25, 2015, defendant was arrested in Crawford County,

Pennsylvania, a six to seven-hour drive from Irvington. After waiving his

Miranda rights, defendant was interviewed by ECPO Detective Wilfredo Perez

and his partner at the Crawford County jail. Initially, defendant told Perez that

he had arrived in Pennsylvania on July 11, four days before the shooting , and

had been staying with his cousin after being driven there by a friend.6 Defendant

also stated he lived in Trenton, not Irvington.

      Defendant eventually admitted hearing about a "dude that got killed" in

Irvington, and stated that the decedent, Bostic, had been "[a] friend of [his]."

Defendant described his relationship with Bostic as being "about money and


6
  During the trial, Quiana Bowman, the friend defendant claimed drove him to
Pennsylvania, denied "driving . . . to Crawford County, Pennsylvania" any time
"in July of 2015." She also denied having a driver's license or owning a car.
                                                                           A-4010-17T4
                                       10
friendship." He admitted that he had sold drugs with Bostic in Irvington, around

Durand Place and Springfield Avenue, and that Bostic "used to live with [him]."

Defendant also stated that he had disagreements with Bostic because Bostic was

"an alcoholic" and "drank too much."

      Usually, according to defendant, the fights "came about because of

money." Defendant described two such recent physical fights with Bostic as

follows:

            [T]he first one happened I kicked his ass . . . . We
            fought. Police came. . . .

                    And the second time we get into a fight he started
            terrorizing the neighborhood . . . people on the corner
            . . . and all that. Somebody went and call the police.
            I'm looking at this is my place of business where I eat
            at, so I go try to talk to him, like, 'Yo, relax, calm the
            fuck down'. He telling me, 'Well, I'm on the east side,'
            this that . . . . I don't have none of that shit. When I try
            to walk off, he sneaks me from the back. When he
            sneaks me, I turn around, kicked his ass, you know what
            I mean, because he can't fight. I kick his ass. There
            was a couple people out there. He try and grab hair and
            all that.

                So . . . . [w]e go in the back yard. I fuck him up.
            Boom, that was that.

      According to defendant, Bostic could not "beat [him], so why should he

matter to [him]?" Defendant stated that because Bostic "never [saw] nobody

else come up, . . . he think[s] everything's supposed to be for him" and "he didn't

                                                                           A-4010-17T4
                                       11
want to see nobody else get money." Despite the fights, defendant stated he

"personally, . . . [paid] . . . no attention" to Bostic and "never had no [serious]

beef with [Bostic], . . . for this type of situation to occur." He explained that

Bostic could not "stop what [defendant did] . . . . [b]ecause people [did not] want

to deal with [Bostic]; they'd rather deal with [defendant] because [defendant

was] more respectful than [Bostic's] ass [was]."

      Defendant stated his only "problem" with Bostic "was when he started

acting like that towards other people," like "store owners." Defendant explained

that when the store owners "call[ed] the police," defendant's ability "to make

money" was adversely impacted. Defendant denied killing Bostic, and stated

that although they "continuously . . . g[o]t in[to] . . . fight[s,] . . . the next day

. . . [he was his] man" and "would still spend the night at [defendant's] house."

Defendant suggested that Perez "look at other people that [Bostic] was beefing

with . . . around the area."

      After the State rested, defendant elected not to testify at the trial. In

summations,     defense    counsel     maintained    that   defendant     committed

passion/provocation manslaughter, not murder. Thereafter, the jury returned a

verdict of guilty to murder and the related weapons offenses, and this appeal

followed.


                                                                              A-4010-17T4
                                         12
                                         II.

      In Point I of his counseled brief, defendant argues the trial judge denied

him "a fair trial" by rejecting his request to "instruct the jury that it could

consider the history of physical altercations between [defendant] and Bostic in

its determination of whether [defendant] was reasonably provoked by Bostic's

assault." We disagree.

      It is well-settled that "[c]lear and correct jury instructions are essential for

a fair trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div. 2015)

(quoting State v. Brown, 138 N.J. 481, 522 (1994)). Because "[t]he trial court

must give 'a comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts that the jury may

find,'" State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Green, 86 N.J.

281, 287-88 (1981)), courts have an "independent duty . . . to ensure that the

jurors receive accurate instructions . . . , irrespective of the particular language

suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). As "an

indication of the paramount importance of accurate jury instructions," our

Supreme Court has "held that erroneous instructions on material issues are

presumed to be reversible error." Ibid. (quoting State v. Marshall, 173 N.J. 343,

359 (2002)).


                                                                              A-4010-17T4
                                        13
      Where, as here, the challenge is not to the legal accuracy of the jury

instruction, which comported with the model jury charge, but to the adequacy

of the charge in light of the denial of the defendant's request to mold or tailor

the model jury charge to the facts of the case, we apply a harmless error analysis.

See R. 2:10-2. "Under that standard, there must 'be "some degree of possibility

that [the error] led to an unjust result. The possibility must be real, one sufficient

to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached."'" Baum, 224 N.J. 147, 159 (alterations in original)

(quoting State v. Lazo, 209 N.J. 9, 26 (2012)); see also State v. Macon, 57 N.J.

325, 337-38 (1971) ("The question is whether there is a reasonable possibility

that the [error] complained of might have contributed to the conviction."). "Our

review, moreover, must not lose sight of the distinction between instructions

that are legally incorrect and those that are merely 'capable of being improved.'"

State v. Cagno, 211 N.J. 488, 514-15 (2012) (quoting State v. Delibero, 149 N.J.

90, 106 (1997)).

      While "[n]o party is entitled to have the jury charged in his or her own

words," State v. Jordan, 147 N.J. 409, 422 (1997), a trial judge may be required

in certain situations to mold or tailor the model jury charge "in a manner that

explains the law to the jury in the context of the material facts of the case." State


                                                                              A-4010-17T4
                                         14
v. Concepcion, 111 N.J. 373, 379 (1988). "That requirement has been imposed

in various contexts in which the statement of relevant law, when divorced from

the facts, was potentially confusing or misleading to the jury."           State v.

Robinson, 165 N.J. 32, 42 (2000). In such instances, "the trial court was

required to explain an abstract issue of law in view of the facts of the case. " Id.

at 43. However, "we generally leave it to the sound discretion of the trial judge

to decide when and how to comment on the evidence." State v. Pigueiras, 344

N.J. Super. 297, 317 (App. Div. 2001) (citing Robinson, 165 N.J. at 45).

      "In New Jersey a purposeful killing can be either murder or

passion/provocation manslaughter." State v. Coyle, 119 N.J. 194, 221 (1990).

"When the record contains evidence of passion/provocation, the State can obtain

a murder conviction only if it proves beyond a reasonable doubt th at the

purposeful killing was not the product of passion/provocation." Ibid. "If there

is sufficient evidence of passion/provocation, a trial court must instruct the jury

that 'to find murder it must be convinced beyond a reasonable doubt that the

accused did not kill in the heat of passion.'" Id. at 221-22 (quoting State v.

Grunow, 102 N.J. 133, 145 (1986)).

            A homicide which would otherwise be a purposeful or
            knowing murder, that is committed in the heat of
            passion resulting from a reasonable provocation, is
            reduced to passion/provocation manslaughter, so long

                                                                            A-4010-17T4
                                        15
             as the killing occurs before sufficient time has passed
             that an ordinary person in similar circumstances would
             have cooled off.

             [State v. Viera, 346 N.J. Super. 198, 212 (App. Div.
             2001) (citing N.J.S.A. 2C:11-4(b)(2)).]

       Thus, to establish passion/provocation manslaughter, "the provocation

must be adequate; the defendant must not have had time to cool off between the

provocation and the slaying; the provocation must have actually impassioned

the defendant; and the defendant must not have actually cooled off before the

slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two criteria

are objective," while "the other two are subjective." Viera, 346 N.J. Super. at

212.

       To find the first criterion, that "the provocation was adequate," a jury must

"conclude that the loss of self-control was a reasonable reaction." Ibid. "Stated

another way," the jury must conclude that "'the asserted provocation was

[]sufficient to inflame the passions of a reasonable person.'" Ibid. (quoting

Mauricio, 117 N.J. at 412). To find "[t]he third criterion, . . . the provocation

must actually have impassioned the perpetrator." Id. at 213.

             It is well settled that when there is evidence of prior
             physical abuse of defendant by the decedent, the jury
             must be told that a finding of provocation may be
             premised on "a course of ill treatment which can induce
             a homicidal response in a person of ordinary firmness

                                                                            A-4010-17T4
                                        16
            and which the accused reasonably believes is likely to
            continue."

            [State v. Kelly, 97 N.J. 178, 218-19 (1984) (quoting
            State v. Guido, 40 N.J. 191, 211 (1963)).]

While we have acknowledged that such cases typically "involve[] a continued

course of physical abuse involving persons in a familial relationship," we have

"decline[d] to hold that a familial relationship is necessary" to find "a course of

ill-treatment . . . sufficient" to establish "adequate provocation." Viera, 346 N.J.

Super. at 216.

      Here, during the charge conference, relying on Coyle, defense counsel

requested that the judge tailor the passion/provocation charge and instruct the

jury that "reasonable provocation can be a continuing course of ill treatment by

the decedent against the defendant." Defense counsel asserted that given the

"continuing pattern of fighting between the [victim and defendant]," the charge

was appropriate.       The prosecutor objected, stating that the charge was

"completely inappropriate" because "[t]he evidence" showed "fighting back and

forth" between defendant and the victim, not "ill treatment" or "abuse or . . .

anything like that."

      The judge denied defense counsel's request, explaining:

            I considered defendant's argument as to including some
            language pursuant to State v. Coyle, as to a pattern of

                                                                            A-4010-17T4
                                        17
            ill treatment. I don't see that as the case here. . . . I
            think, here, you have a situation where both
            individuals, defendant and victim, knew each other for
            quite a long period of time, according to the witnesses
            that knew them.

                    According to . . . defendant, they had a couple of
            fights in the past. Defendant claims he got the best of
            . . . the victim in the past. But certainly no one testified
            as to any type of continuing course of ill treatment by
            the victim towards . . . defendant. I don't see any
            pattern here of that. A couple of skirmishes in the past,
            maybe, but no . . . evidence that anything was out of the
            ordinary, or that it was a one-sided physical
            relationship. So I will not include the proposed
            additional charge.

      However, over the prosecutor's objection, the judge concluded that the

evidence showing that "prior to the shooting," defendant was "somewhat easily

manhandled by the victim," who was "considerably heavier and larger than . . . .

defendant" justified charging the standard passion/provocation charge.

Thereafter, the judge instructed the jury on passion/provocation manslaughter,

tracking the model charge.      See Model Jury Charges (Criminal), "Murder,

Passion/Provocation and Aggravated/Reckless Manslaughter (N.J.S.A. 2C:11-

3a(1) and (2); 2C:11-4(a), (b)(1) and (b)(2))" (rev. June 8, 2015); see also State

v. R.B., 183 N.J. 308, 325 (2005) ("[I]nsofar as consistent with and modified to

meet the facts adduced at trial, model jury charges should be followed and read

in their entirety to the jury."); Estate of Kotsovska, ex rel. Kotsovska v.

                                                                           A-4010-17T4
                                       18
Liebman, 221 N.J. 568, 596 (2015) (noting that a "presumption of propriety . . .

attaches to a trial court's reliance on the model jury charge" when it is used for

"the specific purpose for which [it] was adopted").

      We are satisfied the judge properly provided the standard model jury

charge for passion/provocation manslaughter, and correctly exercised his

discretion in denying defendant's request to tailor the charge. In Coyle, our

Supreme Court reversed the defendant's murder conviction partly because the

trial judge failed to tailor the charge to indicate the existence of "prolonged

abuse culminating in a killing." 119 N.J. at 226. The Court found that because

there was "evidence that the decedent ha[d], in the past, consistently physically

abused one with whom the defendant [stood] in close relationship," and "the

defendant kn[ew] of that abuse, 'the jury [should have been] told that a finding

of provocation may be premised on "a course of ill treatment which [could]

induce a homicidal response in a person of ordinary firmness and which the

accused reasonably believe[d was] likely to continue."'" Id. at 227 (quoting

Kelly, 97 N.J. at 219).     The Court reasoned that "[a]bsent [this] detailed

instruction, a jury might not make an informed decision on the

passion/provocation manslaughter issue." Id. at 228; see also State v. Lamb, 71

N.J. 545, 551 (1976) ("Since there was evidence of prior repeated physical


                                                                          A-4010-17T4
                                       19
mistreatment of defendant by decedent, including threats to her life, . . . the jury

should have been instructed . . . to consider not only decedent's conduct and

threats that night, but also his prior mistreatment of defendant" in determining

the question of provocation.).

      Here, unlike Coyle, there was no evidence of the victim's ill treatment or

prolonged abuse of defendant or someone close to defendant. Instead, there was

evidence of prior physical fights, during which defendant admittedly had the

upper hand. Indeed, defendant bragged about beating the victim in the past,

expressed no fear of him, and acknowledged that although "[t]hey argued, . . .

they still hung together."    In these circumstances, it was the precipitating

"physical confrontation" in which the victim assaulted defendant, rather than

any preceding events, from which "a jury could rationally conclude that the

killing was the product of passion/provocation."         Coyle, 119 N.J. at 225

("Various types of provocatory conduct have been deemed adequate, and

'battery, except for a light blow, has traditionally been considered . . .

sufficiently provocative.'" (alteration in original) (quoting Mauricio, 117 N.J. at

414)). In the absence of any evidence of the victim's prior physical abuse of

defendant, tailoring of the charge was not warranted. We also reject defendant's

contention that the judge repeating the standard charge on reasonable


                                                                            A-4010-17T4
                                        20
provocation in response to the jury's request for clarification of "reasonable

provocation" was "reversible error." See Jordan, 147 N.J. at 422 (explaining

that "all that is necessary is that the charge as a whole be accurate").

      Defendant relies on Viera, State v. Erazo, 126 N.J. 112 (1991), and State

v. Bonano, 59 N.J. 515 (1971) to support his contention that tailoring was

warranted, but his reliance is misplaced. The necessity to tailor the jury charge

was not addressed in any of these cases, only whether the evidence provided a

rational basis for a passion/provocation charge, an issue that is not in dispute in

this case. Viera, 346 N.J. Super. at 217; Erazo, 126 N.J. at 124; Bonano, 59 N.J.

at 523-24.

                                        III.

      In Point II of his counseled brief, defendant argues that the judge's

"[f]ailure to instruct on the nuances of flight under the facts of this case rendered

the instruction inadequate" and the error "reversible." We disagree.

      At the charge conference, defendant did not object to a flight charge since

defendant was "conceding consciousness of guilt," and asked the judge to omit

the language indicating that "defendant denie[d] any flight," to which the judge

agreed. However, defense counsel requested that the instruction be tailored to

include the following language:


                                                                             A-4010-17T4
                                        21
            [D]efendant does not contest that he fled or that he fled
            because he committed a crime. As you are now aware,
            the defendant concedes that he is guilty of the crime of
            heat of passion/provocation manslaughter [and] the
            weapons offenses.     Flight can only be used in
            considering whether the defendant committed a crime,
            not which crime he committed.

      The prosecutor objected to the proposed language as "being argument and

summation." The judge agreed with the prosecutor, and, tracking the model jury

charge on flight, Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010),

later instructed the jury as follows:

                  Now there has been some testimony in the case
            from which you may infer that the defendant fled
            shortly after the alleged commission of the crime. If
            you find that the defendant, fearing that an accusation
            or arrest would be made against him on the charge
            involved in the indictment, took refuge in flight for the
            purpose of evading the accusation or arrest on that
            charge, then you may consider such flight in connection
            with all the other evidence in the case, as an indication
            or proof of consciousness of guilt. Flight may only be
            considered as evidence of consciousness of guilt if you
            should determine that the defendant's purpose in
            leaving was to evade accusation or arrest for the offense
            charged in the indictment.

                   It is for you, as judges of the facts, to decide
            whether or not evidence of flight shows a consciousness
            of guilt and the weight to be given such evidence in
            light of all the other evidence in the case.




                                                                        A-4010-17T4
                                        22
      We discern no error in the judge's flight charge. Other than omitting the

language denying flight as requested by defense counsel, the charge was "a

verbatim recitation" of the model jury charge and "consistent with controlling

New Jersey precedent." State v. Rodriguez, 365 N.J. Super. 38, 53 (App. Div.

2003); see State v. Mann, 132 N.J. 410, 418-19 (1993) ("For departure to take

on the legal significance of flight, there must be circumstances present and

unexplained which, in conjunction with the leaving, reasonably justify an

inference that it was done with a consciousness of guilt and pursuant to an effort

to avoid an accusation based on that guilt." (quoting State v. Sullivan, 43 N.J.

209, 238-39 (1964))).

      Defendant cites State v. Randolph, 228 N.J. 566 (2017) to support his

contention that the flight charge should have been tailored to reflect that "[his]

flight was indicative of his consciousness of guilt . . . to the lesser charge of

manslaughter," as opposed to "the offense charged in the indictment."            In

Randolph, the defendant was being pursued by two different law enforcement

agencies on entirely separate crimes. Id. at 593. "At the very same time that

the Jersey City police was conducting its investigation and surveillance" of the

defendant's building "for drug activity," the United States "Marshals were

rushing to the third floor to arrest [the] defendant" on "a homicide charge." Id.


                                                                          A-4010-17T4
                                       23
at 593-94. The Court thus posited that the circumstances "raise[d] the inevitable

question[:] If defendant, in fact, was fleeing up the stairs, was his flight

prompted by an attempt to escape detection for drug dealing or for a homicide?"

Id. at 594.

              The jury never learned that the United States Marshals
              were on defendant's trail and arrested him in the
              building at the time of the Jersey City police
              investigation. Of course, such a disclosure would have
              been highly prejudicial given that defendant was on
              trial for drug offenses and not for committing a
              homicide. Because of what it did not know, the jury
              could not give weight to evidence that any flight might
              have been motivated for reasons other than the drug
              investigation.

              [Ibid.]

"[G]iven the peculiar facts in th[e] case," the Court found that in a re-trial, "the

trial court must cautiously consider whether . . . a flight charge is appropriate"

and "[i]n doing so, the court must determine whether the probative value of

evidence of flight is 'substantially outweighed by the risk of . . . undue prejudice,

confusion of issues, or misleading the jury,' and whether a carefully crafted

limiting instruction could ameliorate any potential prejudice."          Id. at 595

(quoting N.J.R.E. 403(a)).

      Contrary to defendant's assertion, the circumstances in Randolph are

materially distinguishable from the facts of this case. Moreover, Randolph does

                                                                             A-4010-17T4
                                        24
not invalidate the model flight charge specifying that the defendant's motivation

for fleeing is prompted by "fear[] that an accusation or arrest would be made

against him on the charge involved in the indictment." While "flight from the

scene for reasons unrelated to the crime charged would not be probative of guilt

on that charge," here, the jury was not "left to speculate" about "defendant's

motivation" because it is undisputed that defendant fled after committing a

homicide.    Id. at 594-95.      Indeed, during summations, defense counsel

commented:

             This is not murder. Yes, [defendant] left. He ran. He
             went to Pennsylvania. You'll hear the [j]udge instruct
             you that that could be seen as . . . a consciousness of
             guilt. We're not denying that. . . . We're standing in
             front of you and telling you that [defendant] is guilty of
             a very serious crime, the most serious crime. And that
             is passion/provocation manslaughter.

      Thus, there was no need to "tailor the charge to the facts of the case to

prevent juror confusion." See id. at 578 (quoting State v. Randolph, 441 N.J.

Super. 533, 563-64 (App. Div. 2015)). Because the judge gave the model jury

charge for both murder and passion/provocation manslaughter, "[c]onsidering

the instructions in their entirety, in the context of the evidence and the arguments

of trial counsel, we are convinced that the charge was fair." Robinson, 165 N.J.

at 47; see Cagno, 211 N.J. at 514 ("This court has repeatedly held that portions


                                                                            A-4010-17T4
                                        25
of a charge alleged to be erroneous cannot be dealt with in isolation but the

charge should be examined as a whole to determine its overall effect." (quoting

State v. Wilbely, 63 N.J. 420, 422 (1973))).

                                       IV.

      In Point III of his counseled brief, defendant argues the prosecutor (a)

"made repeated improper comments that were not supported by the evidence ,"

(b) made comments "that denigrated the defense and defense counsel," and (c)

made comments "that drew attention to [defendant's] election not to testify."

Defendant asserts that while "the court intervened, instructing the jury on its

own motion to disregard one remark," defendant was nonetheless deprived of

"due process and a fair trial."

      "Prosecutors can sum up cases with force and vigor, and are afforded

considerable leeway so long as their comments are 'reasonably related to the

scope of the evidence presented.'" State v. Pressley, 232 N.J. 587, 593 (2018)

(quoting State v. Timmendequas, 161 N.J. 515, 587 (1999)). "[I]f a prosecutor's

arguments are based on the facts of the case and reasonable inferences

therefrom, what is said in discussing them, 'by way of comment, denunciation

or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178

(2001) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).


                                                                          A-4010-17T4
                                       26
      "[W]hile a prosecutor must advocate a position vigorously, there are

boundaries to such conduct." State v. Hawk, 327 N.J. Super. 276, 281 (App.

Div. 2000). A prosecutor is "not permitted to cast unjustified aspersions on the

defense or defense counsel." Smith, 167 N.J. at 177. Further, a prosecutor may

not make comments "which may adversely affect an accused's Fifth Amendment

rights" or "either in subtle or obvious fashion draw attention to a defendant's

failure to testify." State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991).

      However, "[a] prosecutor is permitted to respond to an argument raised by

the defense so long as it does not constitute a foray beyond the evidence adduced

at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001); see State

v. McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011) ("A prosecutor's

otherwise prejudicial arguments may be deemed harmless if made in response

to defense arguments."). In fact, "[a] prosecutor may respond to defense claims,

even if the response tends to undermine the defense case." State v. Nelson, 173

N.J. 417, 473 (2002).

      An appellate court "must assess the prosecutor's comments in the context

of the entire trial record," id. at 472, including whether the trial was lengthy and

the prosecutor's remarks short or "errant." Engel, 249 N.J. Super. at 382. "A

finding of prosecutorial misconduct does not end a reviewing court's inquiry


                                                                            A-4010-17T4
                                        27
because, in order to justify reversal, the misconduct must have been 'so

egregious that it deprived the defendant of a fair trial.'" Smith, 167 N.J. at 181

(quoting State v. Frost, 158 N.J. 76, 83 (1999)).

      "Thus, to warrant a new trial the prosecutor's conduct 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.'" Id. at 181-82 (quoting Timmendequas, 161 N.J. at 575).

              In determining whether a prosecutor's actions were
              sufficiently egregious to warrant the reversal of a
              conviction, a reviewing court should take into account:
              (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 182 (citations omitted).]

      "Generally, if no objection was made to the improper remarks, the remarks

will not be deemed prejudicial." Timmendequas, 161 N.J. at 576. "Failure to

make a timely objection indicates that defense counsel did not believe the

remarks were prejudicial at the time they were made," ibid. (citation omitted),

and deprives the court of the "opportunity to take curative action." Frost, 158

N.J. at 84.



                                                                          A-4010-17T4
                                         28
      When a defendant raises prosecutorial misconduct for the first time on

appeal, we need only be concerned with "whether the remarks, if improper,

substantially prejudiced the defendant['s] fundamental right to have the jury

fairly evaluate the merits of [his or her] defense, and thus had a clear capacity

to bring about an unjust result." Johnson, 31 N.J. at 510; see State v. Ross, 229

N.J. 389, 407 (2017) (noting that under the plain error standard of review, R.

2:10-2, "[t]he possibility of an unjust result must be 'sufficient to raise a

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

not have reached'" (quoting State v. Williams, 168 N.J. 323, 336 (2001))).

                    A. Comments Not Supported By The Evidence

      Turning to defendant's specific contentions, first, defendant asserts the

following comments were not supported by the evidence: (1) that defendant "had

planted a gun in the area prior to Bostic's attack, with the intent to use it to

murder him[;]" (2) "that the shooting was motivated by a 'turf battle' between

[defendant] and Bostic[;]" and (3) "that [defendant] had lied in a sworn

statement."

      Regarding defendant secreting a gun beforehand, referring to the

surveillance video that tracked defendant's path on Durand Place and Burrell's

testimony that defendant approached an abandoned building on Durand Place


                                                                            A-4010-17T4
                                        29
prior to returning with the gun, the prosecutor stated that "[t]he gun was planted

[in an abandoned building] ahead of time for [defendant] to go get it and retrieve

it and kill [Bostic]." Also, referring to Wilson's testimony that earlier that

afternoon, defendant had told her that he was going to kill Bostic, the prosecutor

stated that defendant had brought the gun to the area "to have it nearby for the

murder later in the evening."      Contrary to defendant's contentions, we are

satisfied that these comments are reasonably related to the scope of the evidence

presented, and the reasonable inferences drawn therefrom. Moreover, defense

counsel interposed no objection.

      Defendant also challenges the following related comments made by the

prosecutor while showing the surveillance video retrieved from Mohammed's

pizzeria:

            I'm gonna start it again here at the moment when . . .
            defendant walks across the screen. This is right after
            the fight. And just look at the way he's walking with
            his body posture. Agitated? Angry, even? Nothing.
            Just walking away. . . . Is he terrified? Is he going to
            run to get his gun? No. Because that's not the point.
            The point is murder. The point is getting rid of
            [Bostic]. . . . Calmly walking away thinking, all right,
            I'm gonna go get the gun, make sure it's loaded, I think
            I loaded it last time. . . . I'm gonna go get it, I'm gonna
            come back – – I guess I'll come back the same way, he'll
            probably still be there. Thinking it through, all this
            time to think through every detail of how he's gonna do
            it.

                                                                          A-4010-17T4
                                       30
      Defense counsel objected to the prosecutor's narration of defendant's train

of thought, explaining to the judge that the prosecutor "put[] words into

[defendant's] mouth" and improperly "indicat[ed] that he[] used this gun before."

The prosecutor countered that it was "an inference that the jurors [could] draw"

and response to defense counsel's claim that defendant "lost self-control," and

"[was] not thinking." The judge agreed that the comment was objectionable.

However, instead of adopting defendant's requested curative instruction, before

giving the final charge, the judge instructed the jury in pertinent part that

            when the [p]rosecutor, in his summation, was
            discussing what . . . defendant may have said to himself
            at a certain point in time, that is his comment based on
            what some of the other evidence is in the case. But
            there is no evidence in the record of what . . . defendant
            or anyone else said at the time of the incident. So you
            cannot speculate as to what someone may have said at
            that point in time when you heard no evidence of it.

      We agree that the comment was improper, but are satisfied that the judge's

prompt, forceful, and targeted curative instruction ameliorated any prejudice to

defendant. "We will presume that the jury adhered to the court's instruction."

State v. Feaster, 156 N.J. 1, 65 (1998). Indeed, the comments are no more

prejudicial than the statements in Feaster. There, over defendant's objection, the

prosecutor argued that the defendant had loaded and cocked the gun during the

car ride to the scene of the murder, a claim which "had no basis in the record

                                                                           A-4010-17T4
                                       31
and was highly improper." Id. at 62. Nevertheless, the Court determined that

the comments "in the context of the entire trial" did not have the capacity to

deprive defendant of a fair trial. Id. at 63.

      Defendant also challenges the prosecutor's references to "a 'turf battle'"

and competition between defendant and Bostic. The prosecutor stated:

             [Wilson] also tells you, makes clear that they're
             competitors. It's not just from . . . defendant's mouth.
             They're selling drugs on the same street corner.
             [Mohammed] tells you the same thing. They're selling
             drugs on the same street corner, this one corner. This
             is a turf battle, ladies and gentlemen. This is a battle
             for that street corner. And this was a murder to make
             sure that [Bostic] no longer got more of the money.
             Remember, ten times, all [defendant] could talk about
             in the statement is money and how [Bostic] wants to
             have all the money.

      Again, we are satisfied that these comments are reasonably related to the

scope of the evidence presented, and the reasonable inferences drawn therefrom.

Further, defense counsel interposed no objection. We disagree with defendant's

contention on appeal that his and Bostic's friendship prevented them from being

competitors.    Indeed, as defendant acknowledged in his statement, his

relationship with Bostic was "about money and friendship."

      Defendant also challenges the prosecutor's comment that defendant "chose

to give a sworn statement" to police, and argues "[t]he prosecutor's only reason


                                                                        A-4010-17T4
                                        32
to claim that the statement was sworn was to present [him] as a person who lies

under oath."       Defense counsel objected to the prosecutor's comment and

requested a curative instruction. Counsel explained that the "statement was not

sworn" and the jury could be confused, having seen other witnesses come to

court and give sworn testimony under oath. The prosecutor countered that

defendant "swore at the end of the statement and affirmed that it was the truth."

The judge replayed the pertinent portion of defendant's statement.           At the

conclusion of the statement, Perez asked defendant whether "everything

[defendant] told [them was] the truth" as "[defendant] know[s] it," and defendant

replied "[y]ep."

      The judge determined that there was "a disagreement as to whether or not

. . . defendant was sworn when he gave the statement to the detectives or whether

he affirmed to the truth of his statement."          As a result, when addressing

defendant's statement in the final charge, the judge gave the following curative

instruction:

               There was also for your consideration in this case a
               recorded statement allegedly made by . . . defendant. It
               is your function to determine whether or not the
               statement was actually made by . . . defendant, and if
               made, whether the statement or any portion of it is
               credible. It is also your function to determine whether
               . . . defendant swore to the truth of or affirmed the truth
               of the statement. In considering whether or not the

                                                                             A-4010-17T4
                                          33
             statement is credible, you should take into
             consideration the circumstances and facts as to how the
             statement was made, as well as all other evidence in this
             case relating to this issue.

      We are persuaded that the comment, while improper, was not so egregious

as to deprive defendant of a fair trial.        Indeed, the falsity of defendant's

statement, in which he denied killing Bostic, was not disputed by the defense.

Thus, the defense itself acknowledged that defendant had lied to the detectives.

Moreover, the judge's curative instruction ameliorated any prejudice to

defendant.

                        B. Comments Denigrating The Defense

      Next, we consider defendant's argument that the prosecutor denigrated the

defense by referring to it as "ridiculous," "an 'insult to [the jury's] intelligence,'"

"a 'smokescreen,'" and "a 'trap.'"       Defendant also contends the prosecutor

implied that defense counsel and defendant "manufactured" and "fabricated the

passion/provocation defense" because they could not contest "identification."

Further, according to defendant, the prosecutor "unfairly mischaracterized the

defense summation" by claiming that "the defense was a mere appeal to

sympathy," and that "the jury should not convict [defendant] of murder because

the person he killed was a drug dealer."



                                                                               A-4010-17T4
                                         34
      Because defendant made no objection to these comments, we review for

plain error, see R. 2:10-2, and "may infer from counsel's failure to object to the

remarks at the time they were made that he [or she] did not in the atmosphere of

the trial think them out of bounds." Johnson, 31 N.J. at 511; see State v. Atwater,

400 N.J. Super. 319, 337 (App. Div. 2008) ("Where there was no objection at

the time, there is an inference that the defense did not view the summation as

prejudicial in the context of the trial.").

      Defendant cites the following comment in support of his contention that

the prosecutor implied the defense was manufactured or tailored:

                     Now . . . defendant can't contest identification in
             this case. And that goes, again, to why the argument is
             being made to you, the appeal for sympathy. You can't
             contest identification. . . . [D]efendant tried until all
             the evidence was obtained and set up. Crap, you know,
             . . . where am I going with identity? I can't say it wasn't
             me, actually, why did I say that, oh, geez, what am I
             gonna do now? So then it becomes, well, it's passion,
             it's provocation.

      In State v. Daniels, our Supreme Court held that "prosecutors are

prohibited from making generic accusations of tailoring during summation."

182 N.J. 80, 98 (2004). However, "[i]f there is evidence of tailoring, beyond

the fact that the defendant was simply present at the trial and heard the testimony

of other witnesses, a prosecutor may comment, but in a limited fashion." Id. at


                                                                           A-4010-17T4
                                         35
98-99. However, in every case, "[t]he prosecutor's comments must be based on

the evidence in the record and the reasonable inferences drawn therefrom." Id.

at 99.

         Here, we are satisfied defendant's comments fell within permissible

bounds.      The prosecutor's reference to the disparity between defendant's

statement to detectives, in which he denied shooting Bostic, and his defense at

trial as argued by defense counsel in openings7 and summation, acknowledging

that defendant shot Bostic, were clearly supported by the record.           These

comments are not equivalent to "the insinuations of manufactured testimony

based upon collusion" that were condemned in Nelson, 173 N.J. at 462, and State

v. Rose, 112 N.J. 454, 518 (1988), or the statements implying that the defense

expert's testimony "was manufactured out of empathy" denounced in State v.

Jenewicz, 193 N.J. 440, 472 (2008). See id. at 471 ("[W]hen the prosecutor

stated that [the defense expert] 'crossed over the bridge from being an objective

psychiatrist to a subjective advocate' out of a 'zeal to help [the defendant],' it

was the prosecutor who crossed the line of acceptability."); Nelson, 173 N.J. at



7
   In her opening statement, defense counsel asserted "Ladies and gentlemen,
this is not an identification case. [Defendant] does not deny that he was there
on July 15[], 2015. He does not deny that he shot . . . Bostic. He doesn't deny
it and he's never denied it."
                                                                          A-4010-17T4
                                       36
462 (finding that the prosecutor's allegations that the expert testimony was

contrived and that there was collusion between the experts and the defense were

not supported by the record and constituted reversible error); Rose, 112 N.J. at

518 (finding misconduct where the prosecutor had stated that defense doctors

"were explained the law by the lawyers, as to what he's being charged with, what

he faced and how he could beat the penalty that the law provides for him").

      We also reject defendant's contention that the prosecutor "unfairly

mischaracterized the defense summation" by claiming that "the jury should not

convict [defendant] of murder because the person he killed was a drug dealer."

On the contrary, the prosecutor "agree[d] completely" with defense counsel that

"the fact that [Bostic and defendant were] drug dealers doesn't matter." The

prosecutor stressed "we don't judge them to be bad people because of that for

this particular case. All it tells us is motive."

      On the other hand, we agree with defendant's assertion that the prosecutor

denigrated the defense by referring to it as "ridiculous," "an 'insult to [the jury's]

intelligence,'" "a 'smokescreen,'" and "a 'trap.'" In urging the jury to reject the

passion/provocation defense, the prosecutor exhorted the jury, "Don't fall into

the trap. Don't fall into the smokescreen. Don't get lost in the smokescreen.

Focus on the facts."      As the prosecutor painstakingly reviewed the video


                                                                              A-4010-17T4
                                         37
surveillance, he argued that defendant committed premeditated murder, and

explained to the jury

            This was no, oh my God, I lost all self-control. It's
            ridiculous. It's an insult to your intelligence as human
            beings to think that that is an adequate provocation to
            lose self-control . . . .

                   ....

            There he is, calmly walking. I would describe it like a
            stroll. And I don't think that's any exaggeration or mere
            argument. Let's look at it again. Just strolling to go get
            his 9 millimeter and shoot the [victim eleven] times.

                  Provoked? Losing self-control, at a loss of self-
            control there? It's, again, an insult to our intelligence.

      Before the prosecutor proceeded any further, the judge sua sponte

instructed the jury:

            I'll just ask you to disregard the last remark, jurors. . . .
            As far as insult to your intelligence. I know it was
            mentioned twice, but, look, each attorney makes their
            own arguments . . . . And then, obviously, as I told you,
            you are the judges of the facts and I will instruct you on
            the law.

      In State v. Acker, we held that the prosecutor's comments in summation

"were so egregious, inflammatory and prejudicial as to deny [the] defendant a

fair trial," and reversed the defendant's convictions for sexual assault of two

minors and related charges. 265 N.J. Super. 351, 356 (App. Div. 1993). There,


                                                                            A-4010-17T4
                                        38
the prosecutor disparaged the defense with baseless allegations, and, over

defense counsel's objection, suggested that it was the jury's "function . . . to

protect young victims of alleged sexual offenses as a group." Ibid. While the

latter "argument alone had the clear capacity to deprive defendant of his

constitutional right to a fair trial," we determined it was also "highly improper

for the prosecutor to characterize the defense attorney and the defense as

outrageous, remarkable, absolutely preposterous and absolutely outrageous."

Id. at 356-57. We noted "defense counsel was attacked unjustifiably for simply

trying to discredit the State's case." Id. at 356.

      In State v. Ates, we affirmed the defendant's murder conviction,

concluding that the prosecutor's comment in summation that his medical expert's

testimony "was 'absolutely preposterous,' although improper, was insufficient to

raise a reasonable doubt that it led the jury to a verdict it would not have

otherwise reached." 426 N.J. Super. 521, 536 (App. Div. 2012). Noting that

"the failure to object [gave] rise to an inference that the defense did not view the

remark as prejudicial," we explained that "[e]ven when an improper comment is

made, . . . we must consider its context to determine whether the prejudicial

effect warrants reversal." Ibid. Likewise, here, in light of the considerable

evidence of guilt and the judge's sua sponte curative instruction, which was


                                                                            A-4010-17T4
                                        39
reinforced in the final charge, we conclude the comments, although improper,

were insufficient to raise a reasonable doubt that it led the jury to a verdict it

would not have otherwise reached.        Indeed, like Ates, "[t]he prosecutor's

summation relied on the voluminous evidence introduced by the State

implicating defendant in the murder." Ibid.

           C. Comments Implicating Defendant's Election Not To Testify

      Next, we consider defendant's contention that the following comment, to

which there was no objection by defense counsel, constituted an impermissible

reference to defendant's decision not to testify:

            Well, what's clear is that [defense counsel's] arguments
            have many, many problems.             Number one, it's
            completely at odds with her own client's statement. The
            [j]udge took quite a bit of time with all of you, during
            voir dire, to go over that constitutional right, that a
            defendant does not have any obligation to testify. And
            that's absolutely true. That's why we took such time
            and we were so careful about that because there is no
            constitutional obligation to testify. The burden is on
            me to prove this offense to you, this murder to you. But
            many of you voiced that you did expect the defendant
            to say the truth. And in this case, the defendant chose
            to speak. He chose to give a sworn statement. You
            heard the statement. No one was pressuring him. He
            was calm. He was relaxed. Again, going to the lack of
            passion/provocation. He didn't sound upset about what
            happened. He was cool, calm, and collected. He was
            gonna deny it all. He hadn't seen the [surveillance]
            video yet. So that was gonna be his first line of defense.


                                                                          A-4010-17T4
                                       40
             He was just gonna deny it. It wasn't me, I don't know
             what you're talking about.

                    So, yeah, that's BS. We can disregard that. It's a
             BS story, other than that it tells us that he's a liar. He's
             not gonna say the truth. But the funny thing about the
             truth, as we all know from life, is that it has a funny
             way of kind of rising to the surface. We do our best to
             lie sometimes. We know people in life that just do their
             best to cover things up, but the truth has a funny way.
             And for . . . defendant, it managed to rear its ugly head.
             That statement is littered with the resentment that he
             had toward [Bostic]. How much motive he had to get
             rid of [Bostic]. It's not the fight. He tells you in his
             statement, they fought all the time.

      "The Fifth Amendment forbids a prosecutor from commenting upon a

defendant's failure to testify as such comment would penalize defendant's

constitutional right against self-incrimination."      State v. Scherzer, 301 N.J.

Super. 363, 439 (App. Div. 1997).          Thus, "[r]eversal is mandatory if the

prosecuting attorney has unambiguously called attention to [the] defendant's

failure to testify in exercise of his fifth-amendment constitutional right." State

v. Williams, 113 N.J. 393, 454 (1988); see also Scherzer, 301 N.J. Super. at 439

(finding that a "[c]omment about a defendant's failure to present evidence is

impermissible, if it could only be referring to the absence of testimony by the

defendant"). However, "[n]ot all prosecutorial comments on [a] defendant's

failure to testify . . . compel this result." Williams, 113 N.J. at 454.


                                                                            A-4010-17T4
                                         41
      Significantly,

            [a] prosecutor has the right to make fair comment on
            the evidence and to argue to the jury the significance of
            the testimony presented, but when he begins to discuss
            the significance of what testimony was not presented
            and if it does not clearly appear that persons other than
            defendant could have been called, there is a danger that
            he may reflect upon a defendant's [f]ifth [a]mendment
            right to remain silent. Every time a prosecutor stresses
            a failure to present testimony, the facts and
            circumstances must be closely examined to see whether
            the defendant's right to remain silent has been violated.

            [Scherzer, 301 N.J. Super. at 440 (quoting State v.
            Sinclair, 49 N.J. 525, 548-49 (1967)).]

      In Sinclair, the Court disapproved of the prosecutor's "repeated remark"

that the testimony of an eyewitness "was 'uncontradicted' -- in view of the

testimony showing that only Sinclair and his co-defendant could deny the

testimony of [the eyewitness]." 49 N.J. at 459. The Court concluded there was

a "danger that the jury would draw an improper inference from Sinclair's failure

to take the stand." Ibid. In State v. Irizarry, we found reversible error where,

over defense counsel's objection, part of the prosecutor's summation "unfairly

urged the jury to disregard a proper defense argument because defendant did not

testify to support it." 270 N.J. Super. 669, 675 (App. Div. 1994). We reasoned

that the prosecutor's comments "lent added weight to the State's evidence in a



                                                                        A-4010-17T4
                                      42
case where the elements of the crime [were] not clear-cut and the State's proofs

left room for a reasonable doubt as to [the] defendant's guilt." Id. at 676.

      However, in Williams, the Court found that "[t]he record . . . [was] devoid

of any indication that the State improperly referred to [the] defendant's silence

at trial." 113 N.J. at 455. The Court explained that "the State's comments were

directed to properly admitted evidence, not defendant's failure to testify." Ibid.

Likewise, in State v. Purnell, the Court found no reversible error in the

prosecutor's references "to the various statements of defendant and his family"

or to the prosecutor's comment that the defendant "fail[ed] to explain how his

sweatshirt was found at [a prosecution witness's] house." 126 N.J. 518, 539-40

(1992). The Court explained that the sweatshirt comment was in response to

defense counsel's assertion in summation that the witness had lied when she

testified that the defendant was at her house, and "there [was] no indication that

the prosecutor sought to take advantage of defendant's failure to testify in th[e]

case." Id. at 540.

      Similarly, in State v. Zola, the Court found no misconduct where a

prosecutor stated in his opening "[s]cience fails to be of assistance here, and

only [the defendant] and [the murder victim] know for sure." 112 N.J. 384, 427

(1988). The Court also found no impermissible comment on the defendant's


                                                                          A-4010-17T4
                                       43
failure to testify in "the prosecutor's closing remarks that 'the primary basis for

knowing what [the defendant] did or didn't do at [the murder victim's] apartment

. . . [was] the self-serving statements of [the defendant] . . . ." Ibid. According

to the Court, "these comments were intended to address not so much the failure

of the defendant to testify as the incompleteness of the experts' analyses of all

the evidence in the trial." Ibid.

      Here, because the prosecutor's comments were directed at defendant's

statement to the detectives, which was properly admitted at trial, and responded

to defense counsel's summation, the comments did not infringe on defendant's

constitutional right not to testify. See State v. O'Neill, 193 N.J. 148, 180 (2007)

("In considering the admissibility of a defendant's incriminating statements

following unwarned and warned interrogations, the proper standard under state

law focuses on whether the defendant knowingly, voluntarily, and intelligently

waived his rights before speaking to the police.").

      Indeed, given the prosecutor's prefatory comments as well as the judge's

instruction in the final charge to "not consider for any purpose or in any manner

. . . that defendant did not testify," unlike Sinclair, there was no danger that the

jury would draw an improper inference from defendant's failure to take the

stand. Further, unlike Irizarry, evidence of defendant's guilt for murder was


                                                                            A-4010-17T4
                                        44
overwhelming given the two eyewitness accounts as well as the surveillance

videos depicting the shooting. In sum, "[w]e have carefully reviewed each

instance of impropriety asserted by defendant[]" and are satisfied that, "[w]hile

in several instances the prosecutor walked on or even crossed the line," when

viewed both separately and in the aggregate, the prosecutor's comments "did not

jeopardize defendant's right to a fair trial." Scherzer, 301 N.J. Super. at 446.

                                        V.

      In Point IV of his counseled brief, defendant argues evidence that

defendant was a drug dealer "should have been excluded because it was

irrelevant, and its probative value was outweighed by its prejudicial effect."

Defendant asserts that at the pre-trial hearing to determine the admissibility of

the evidence to prove motive, "the [S]tate failed to show that [defendant] and

Bostic were competitors, or, for that matter, that either of them w[as] engaged

in the drug trade at the time of the shooting."

      Our "review of a trial judge's determination on the admissibility of 'other

bad conduct' evidence is one of great deference." State v. Goodman, 415 N.J.

Super. 210, 228 (App. Div. 2010) (quoting State v. Foglia, 415 N.J. Super. 106,

122 (App. Div. 2010)). Because the decision "rests in the sound discretion of

the trial court," State v. Willis, 225 N.J. 85, 96 (2016), "[o]nly where there is a


                                                                           A-4010-17T4
                                       45
'clear error of judgment' should the 'trial court's conclusion with respect to that

balancing test' be disturbed."    State v. Marrero, 148 N.J. 469, 483 (1997)

(quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994)).

      "N.J.R.E. 404(b) generally precludes the admission of evidence pertaining

to other crimes or wrongs, except to show 'proof of motive, opportunity, intent,

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

such matters are relevant to a material issue of dispute.'" Goodman, 415 N.J.

Super. at 229 (quoting N.J.R.E. 404(b)). "[W]hen motive or intent is at issue,

we generally admit a wider range of evidence." State v. Jenkins, 178 N.J. 347,

365 (2004). In State v. Cofield, 127 N.J. 328, 338 (1992), "the Court articulated

a four-part test designed to guide the determination of when to admit such

evidence." State v. Barden, 195 N.J. 375, 389 (2008).

            The Cofield test requires that:

                   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;

                   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.

                                                                           A-4010-17T4
                                       46
            [State v. Williams, 190 N.J. 114, 122 (2007) (citing
            Cofield, 127 N.J. at 338).]

      "In Williams, however, the Court observed that the second Cofield factor

'is not one that can be found in the language of Evidence Rule 404(b). Cofield's

second factor, therefore, need not receive universal application in Rule 404(b)

disputes.'" Goodman, 415 N.J. Super. at 230 (quoting Williams, 190 N.J. at

131). Indeed, "[i]ts usefulness as a requirement is limited to cases that replicate

the circumstances in Cofield." Williams, 190 N.J. at 131.

            Ultimately, if the party seeking to admit the evidence
            "demonstrate[s] the necessity of the other-crime
            evidence to prove a genuine fact in issue and the court
            has carefully balanced the probative value of the
            evidence against the possible undue prejudice it may
            create, the court must instruct the jury on the limited
            use of the evidence."

            [State v. Willis, 225 N.J. 85, 100 (2016) (alteration in
            original) (quoting Cofield, 127 N.J. at 340-41).]

"The instruction should be given when the evidence is presented and in the final

charge to the jury." Barden, 195 N.J. at 390.

      Here, following the pre-trial hearing, during which Wilson and

Mohammed testified consistent with their trial testimony, the judge admitted,

under N.J.R.E. 404(b), the testimonial evidence of drug dealing activities as well

as defendant's unredacted admissions in that regard contained in his statement

                                                                           A-4010-17T4
                                       47
to detectives. Applying the Cofield factors, the judge determined "the State met

its burden by providing . . . clear and convincing evidence" of "drug dealing" to

prove "[d]efendant's motive for [the] shooting," which was "highly relevant to

the case." The judge expounded that "[e]ach witness testified that [d]efendant

and decedent were engaged in drug dealing in the same vicinity," and defendant

conceded in his statement that "the decedent thought he was entitled to the lion's

share of the activity."

      Further, the judge concluded "the probative value of the evidence [was]

not outweighed by its prejudice," noting "the fact that the . . . evidence

implicates the decedent, in addition to . . . [d]efendant, as a drug dealer tends to

lessen the prejudicial effect of the State's evidence." Additionally, the judge

gave the requisite limiting instruction when the evidence was presented and in

the final charge to the jury. See Feaster, 156 N.J. at 64-65 (noting that it is

"presume[d] that the jury adhered to the [trial] court's instruction").

Notwithstanding defendant's contentions to the contrary, we agree with the

judge's decision and discern no abuse of discretion. See State v. Green, 274 N.J.

Super. 15, 31-32 (App. Div. 1994) (finding that the defendant's "participation in

drug sales constituted critical evidence in establishing his motive" for




                                                                            A-4010-17T4
                                        48
committing murder based on "the State's theory" that the defendant retaliated

against the victim for his earlier robbery of one of the defendant's confederates).

                                            VI.

      In Point V of his counseled brief, defendant argues even if we find no

individual errors warranting reversal, the "cumulative effect" of the individual

errors "cast[s] sufficient doubt upon the verdict to warrant reversal." Reddish,

181 N.J. at 615; see also Jenewicz, 193 N.J. at 473 ("We have recognized in the

past that even when an individual error or series of errors does not rise to

reversible error, when considered in combination, their cumulative effect can

cast sufficient doubt on a verdict to require reversal."). However, we conclude

there were no reversible errors and any existing errors lack a cumulative effect

to require reversal.

                                       VII.

      In Point VI of his counseled brief, defendant argues the judge "erred in

finding that [defendant] was subject to a mandatory extended term, failed to

consider a significant mitigating factor, and imposed an excessive sentence."

      "Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). We will

            affirm the sentence unless (1) the sentencing guidelines
            were violated; (2) the aggravating and mitigating

                                                                           A-4010-17T4
                                       49
            factors found by the sentencing court were not based
            upon competent and credible evidence in the record; or
            (3) "the application of the guidelines to the facts of [the]
            case makes the sentence clearly unreasonable so as to
            shock the judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

      Defendant argues the judge erred in sentencing him on the murder

conviction "to a mandatory extended term pursuant to N.J.S.A. 2C:44-3(d),

which applies to a second offender with a firearm, because the evidence does

not establish that [defendant] had a prior firearm conviction."            Pursuant to

N.J.S.A. 2C:44-3, "[i]f the grounds specified in subsection d. are found," and

the defendant is being sentenced for committing murder with a gun, among other

designated offenses, "the court shall sentence the defendant to an extended term

. . . , and application by the prosecutor shall not be required." Subsection d

specifies that in order to be eligible for mandatory extended term sentencing,

the defendant must be "at least [eighteen] years of age and . . . been previously

convicted of . . . [N.J.S.A.] 2C:11-4," among other crimes, and "used or

possessed a firearm, as defined in 2C:39-1f., in the course of committing or

attempting to commit [that] crime[], including the immediate flight therefrom."

N.J.S.A. 2C:44-3(d).


                                                                               A-4010-17T4
                                        50
      At sentencing, defendant, then thirty-four years old, conceded that he was

"eligible for mandatory extended term sentencing," based on a prior homicide.

The record reveals that in 2005, defendant pled guilty to reckless manslaughter,

N.J.S.A. 2C:11-4, in connection with a robbery.         The original indictment

charged defendant with murder and related offenses. Accordingly, as correctly

noted by the judge, defendant's sentencing exposure on the instant murder

charge was "between [thirty-five] years and life imprisonment, of which . . .

defendant shall serve [thirty-five] years before being eligible for parole."

N.J.S.A. 2C:43-7(a)(6).

      Next, defendant argues the judge "erred in failing to consider mitigating

factor [eleven,] N.J.S.A. 2C:44-1(b)(11)," based on the hardship his

incarceration would cause to his five-year-old son. The judge acknowledged

that defendant was "single," "ha[d] no history of employment," and "ha[d] one

child, age [five], who currently reside[d] with the mother." While the judge

found that "no statutory mitigating factors" applied, or "were cited by the

defense," the judge considered defendant's showing of remorse to the victim's

family as a non-statutory mitigating factor. On the other hand, the judge found

aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that . . . defendant

will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of . . .


                                                                           A-4010-17T4
                                       51
defendant's prior criminal record and the seriousness of the offenses of which

he has been convicted"); and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for

deterring . . . defendant and others from violating the law").

      In that regard, the judge explained:

            [D]efendant has an unabated adult criminal history,
            which seems only to be interrupted by periods of
            detention or incarceration. [8] Despite being just [thirty-
            four] years of age, defendant has now been convicted
            of five felonies as an adult, including two separate
            homicides.

                   ....

            There is a substantial need to protect the public from
            this defendant given his numerous violent convictions,
            including this most recent offense where he shot and
            killed a friend of his at point blank range, with multiple
            shots, even while his friend remained defenseless on the
            ground. And, again, this was just two years after being
            released from State Prison for a manslaughter
            conviction.

      "Based on the analysis of aggravating and mitigating factors," the judge

was   "clearly   convinced    that   [the]   aggravating    factors   substantially

predominate[d]." Applying our deferential standard of review, we are satisfied



8
    The judge also recounted defendant's juvenile history, consisting of
"[nineteen] petitions . . . resulting in ten adjudications[,]" the "first contact"
occurring "just one month past [defendant's eleventh] birthday."


                                                                           A-4010-17T4
                                       52
that the judge's findings are amply supported by the record, that the sentence

comports with the guidelines enunciated in the Code of Criminal Justice, and

that the aggregate sentence 9 does not reflect an abuse of discretion or shock our

judicial conscience.

                                         VIII.

      In Point I of his pro se brief, defendant argues the judge erred in failing to

charge "the lesser included offenses of [a]ggravated [m]anslaughter and

[r]eckless [m]anslaughter."      As defendant points out, neither charge was

requested by defense counsel at trial.

      When a defendant does not request the judge to charge a particular lesser-

included offense, the judge need not sua sponte give that instruction unless the

facts clearly indicate that the jury could find the defendant guilty of the lesser -

included offense, rather than the charged offense. State v. Choice, 98 N.J. 295,

299 (1985). Notably, the trial court is not obliged to, "on its own meticulously

. . . sift through the entire record in every murder trial to see if some combination

of facts and inferences might rationally sustain a manslaughter charge." Ibid.



9
   The judge imposed a concurrent ten-year term, with a five-year period of
parole ineligibility, on the unlawful possession of a handgun charge, and merged
the possession of a weapon for an unlawful purpose charge with the murder
conviction.
                                                                             A-4010-17T4
                                         53
"Instead, the evidence supporting a lesser-included charge must 'jump[] off the

page' to trigger a trial court's duty to sua sponte instruct a jury on that charge."

State v. Fowler, 239 N.J. 171, 188 (2019) (alteration in original) (quoting State

v. Denofa, 187 N.J. 24, 42 (2006)).

            A defendant commits manslaughter when he acts
            recklessly, causing the death of another human being.
            N.J.S.A. 2C:11-4(b)(1). A killing will be considered to
            constitute aggravated manslaughter if it is done
            recklessly and "under circumstances manifesting
            extreme indifference to human life." N.J.S.A. 2C:11-
            4(a)(1). A defendant acts recklessly when he or she
            "consciously disregards a substantial and unjustifiable
            risk" that death will occur from the defendant's conduct,
            and disregarding the risk "involves a gross deviation
            from the standard of conduct that a reasonable person
            would observe" in the same situation. N.J.S.A. 2C:2-
            2(b)(3).

            [Id. at 188-89.]

      In Fowler, the Court found no error in the exclusion of aggravated

manslaughter or reckless manslaughter as lesser-included offenses of murder

where "the jury was presented with two distinct, mutually exclusive versions of

events" in the murder trial of defendants Joey Fowler and Jamil Hearns. Id. at

189. "The State depicted a premeditated and purposeful murder" while "[the

d]efendants' version asserted that, faced with an armed assailant at close range,

Hearns attempted to disarm his attacker using non-lethal force in an unpopulated


                                                                            A-4010-17T4
                                        54
area." Ibid. The Court concluded that "neither the State's nor defendants'

scenario reasonably depict[ed] Hearns as an actor who consciously disregarded

a substantial and unjustifiable risk providing a platform for a manslaughter or

aggravated manslaughter charge based on recklessness." Id. at 189-90.

      We reach the same conclusion here. Neither the State's nor defendant's

scenario provided the basis for an aggravated manslaughter or reckless

manslaughter charge, "let alone constitutes a scenario where that conclusion

jumps off the page." Id. at 190.

                                      IX.

      In Point II of his pro se brief, defendant argues the State deprived him of

a fair trial by failing to disclose correspondence received from a behavioral

healthcare facility until one day before the jury returned its verdict .     The

correspondence related that Wilson was suffering from "suicidal ideation" when

she was admitted into their program in May 2017, some four months before the

trial. According to defendant, the evidence was both exculpatory and newly

discovered evidence.

      "It is well-settled that the suppression by the prosecution of evidence

favorable to a defendant violates due process of law where the evidence is

favorable to the defense, and is material." State v. Russo, 333 N.J. Super. 119,


                                                                         A-4010-17T4
                                      55
133-34 (App. Div. 2000) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).

The result is referred to as a Brady violation. "In order to establish a Brady

violation, the defendant must show that: (1) the prosecution suppressed

evidence; (2) the evidence is favorable to the defense; and (3) the evidence is

material." State v. Martini, 160 N.J. 248, 268-69 (1999) (alterations in original)

(quoting Brady, 373 U.S. at 87). "[E]vidence is 'material' if there is a 'reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.'" Id. at 269 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)).

      On the other hand,

            to qualify as newly discovered evidence entitling a
            party to a new trial, the new evidence must be (1)
            material to the issue and not merely cumulative or
            impeaching or contradictory; (2) discovered since the
            trial and not discoverable by reasonable diligence
            beforehand; and (3) of the sort that would probably
            change the jury's verdict if a new trial were granted.

            [State v. Carter, 85 N.J. 300, 314 (1981).]

      "[D]etermining whether evidence is 'merely cumulative, or impeaching,

or contradictory,'" under prong one of the Carter test "necessarily implicates

prong three[.]" State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Ways,

180 N.J. 171, 188-89 (2004)). Because "prongs one and three are inextricably


                                                                            A-4010-17T4
                                        56
intertwined," evidence that "'would shake the very foundation of the State's case

and almost certainly alter the earlier jury verdict' could not be categorized as

'merely cumulative.'" Ibid. (quoting Ways, 180 N.J. at 189). All three prongs

"must be met before the evidence can be said to justify a new trial." Carter, 85

N.J. at 314.

      Here, defendant failed to establish that the evidence constitutes either

exculpatory or newly discovered evidence to             meet either standard.

Significantly, even assuming delayed disclosure and the potential to impeach

Wilson's credibility, given the overwhelming evidence of defendant's guilt, we

are satisfied that the result of the proceeding would have been no different.

      Affirmed.




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                                      57
