                        NOT FOR PUBLICATION WITHOUT THE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-0864-14T3

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

STANLEY WALKER, JR., a/k/a
SELF STANLEY WALKER, JR.,
and QUENTIN WALKER,

          Defendant-Appellant.
_________________________________

              Submitted March 6, 2017 – Decided           March 21, 2017

              Before Judges Sabatino and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              12-01-0019.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Margaret R. McLane, Assistant
              Deputy Public Defender, of counsel and on the
              briefs).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Marc A. Festa, Senior
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     On January 9, 2012, a Passaic County grand jury returned a

fifteen-count indictment, charging defendant Stanley Walker, Jr.

in nine of those counts1 with first-degree murder, N.J.S.A. 2C:11-

3(a) (count one); two counts of second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b) (counts two and eight); two

counts of second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts three and seven); two counts

of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.

2C:11-3(a)   (counts   four   and   five);   fourth-degree   aggravated

assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count six);

and certain persons not to possess a handgun, N.J.S.A. 2C:39-7(b)

(count nine).

     Prior to defendant's trial, the trial judge denied his motion

to suppress an oral statement he gave to the police and an




1
   Defendant's girlfriend, Elisa Quiles, was charged in the
indictment with third-degree hindering apprehension, N.J.S.A.
2C:29-3(a)(2)   (count   thirteen);   fourth-degree    obstruction,
N.J.S.A. 2C:29-1 (count fourteen); and second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a) (count fifteen).
Pursuant to a plea agreement, Quiles pled guilty to count thirteen
and was sentenced to one year of probation "with up to 364 days
in the" county jail. Counts fourteen and fifteen were dismissed.
As required by the plea agreement, Quiles testified at defendant's
trial as a witness for the State. A second co-defendant, Andre
Morales, was charged in counts ten, eleven, and twelve with weapon
and drug offenses, but he did not testify at trial and the
disposition of these charges is not relevant to the present appeal.

                                    2                           A-0864-14T3
eyewitness identification.           Defendant does not challenge these

rulings on appeal.

       At the conclusion of the trial, the jury found defendant

guilty        of   the    lesser-included       offenses    of   second-degree

passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) (count

one), and second-degree aggravated assault, serious bodily injury,

N.J.S.A. 2C:1-b(1) (counts four and five).                 The jury also found

defendant guilty of counts three and eight.                 The jury acquitted

defendant of counts two, six, and seven, and the State dismissed

count nine on its own motion.            The trial judge subsequently denied

defendant's motion for a new trial.

       At sentencing, the trial judge granted the State's motion for

an extended sentence.         The judge merged count three into count one

and sentenced defendant to eighteen years in prison on count one,

subject to the 85% parole ineligibility provisions of the No Early

Release Act ("NERA"), and three years of parole supervision upon

his release.       The judge imposed seven-year terms, subject to NERA,

with three years of parole supervision on counts four and five.

The judge ruled that these terms would run concurrent to each

other, but consecutive to the sentence imposed under count one.

Finally, the judge sentenced defendant to a concurrent seven-year

term     on    count     eight,   with    a   three-year    period   of    parole



                                          3                               A-0864-14T3
ineligibility.    Thus, defendant's aggregate sentence was twenty-

five years, subject to NERA.    This appeal followed.

    On appeal, defendant raises the following contentions:

         POINT I

         THE PROSECUTOR'S IMPROPER BURDEN-SHIFTING IN
         SUMMATION VIOLATED DEFENDANT'S RIGHT TO A FAIR
         TRIAL   AND    REQUIRES   REVERSAL   OF    HIS
         CONVICTIONS, U.S. Const. Amend. V, XIV; N.J.
         Const. art I, ¶¶ 1, 10.

         POINT II

         THE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO
         THE ABSENCE OF JURY CHARGES ON THE PRIOR
         CONVICTION OF A WITNESS AND HOW TO EVALUATE
         THE TESTIMONY OF A COOPERATING-WITNESS. (Not
         Raised Below).

         POINT III

         THE COURT ERRED IN ADMITT[ING] OTHER-CRIMES
         EVIDENCE WITHOUT FIRST CONDUCTING A 404(b)
         ANALYSIS AND WITHOUT ANY LIMITING INSTRUCTION.
         (Partially Raised Below).

         POINT IV

         THE DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE
         THE COURT IMPROPERLY IMPOSED AN EXTENDED TERM
         AND FAILED TO CONDUCT A THOROUGH YARBOUGH[2]
         ANALYSIS,   IMPROPERLY   GIVING   CONSECUTIVE
         RATHER THAN CONCURRENT SENTENCES.

         A.      The court improperly imposed an extended
                 term sentence because it engaged in
                 impermissible double-counting and failed
                 to   give   adequate   weight   relevant
                 mitigating factors.

2
  State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 474 U.S.
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

                                  4                         A-0864-14T3
            B.   Consecutive   sentences    were  improper
                 because Wade, Uddin, and Moore were
                 acting   in  concert    as   the  initial
                 aggressors against [defendant].

       Because we agree with defendant's contention in Point I that

the prosecutor, in his summation, improperly commented to the jury

on     defendant's   failure   to   testify,   we   reverse   defendant's

conviction.

                                    I.

       We derive the following facts from the evidence produced at

trial.     As noted above, Quiles was defendant's girlfriend.          She

had a child with her former boyfriend, Philip Ramos.          On July 13,

2011, Quiles and Ramos had a heated argument about Ramos's child

support payments while they were both at a house on Van Houten

Street in Patterson.

       While Quiles and Ramos were arguing, defendant drove up in a

car.     He asked Quiles if she was "okay," and she "said yes."

Defendant then drove to the back of the house.           However, Ramos

testified that he and defendant argued and that defendant "just

got angry and started acting crazy with me."         Ramos then left and

went to a location on Slater Street, where he met with some

friends.




                                     5                            A-0864-14T3
     After the argument, Quiles told defendant about her argument

with Ramos.     Defendant told Quiles that he was "tired of [her]

baby father."

     Later that day, defendant went to the Slater Street location

and challenged Ramos to a fight over how he had treated Quiles.

Ramos did not want to fight.          Ramos testified that defendant

started screaming and then pointed a gun at him.      Defendant then

"jumped in [his] car and left."

     Ramos's friend, Syed Uddin, was present when this incident

occurred. Uddin testified that defendant and Ramos got in a verbal

dispute and then defendant left the scene.      Uddin testified that

he "never saw [defendant] with a gun" and that "[n]obody was waving

a gun around."3

     Ramos testified that six of his Slater Street friends, Uddin,

Dennis Wade, Lanier Moore, Andre Morales, Itavious Reid, and Miguel

Chica, became angry at defendant over this incident and went to

confront defendant at the house on Van Houten Street. Ramos stated

that he was unable to go with his friends because he had to attend

a program as part of the conditions of his parole. Uddin testified



3
  Based on his alleged actions in this incident, defendant was
charged in counts two, six, and seven of the indictment. At the
conclusion of the trial, the jury acquitted defendant of each of
these charges.


                                  6                          A-0864-14T3
that    "[e]verbody    in    the    group       .    .    .    wanted   to    fight"    with

defendant.

       The six men drove to Van Houten Street in two cars.                              Wade

drove one car and Moore drove the other.                        When they got to their

destination, the men parked the cars in the street in front of the

house.    When they arrived, defendant, Quiles, and her child were

sitting on the back porch.                They heard the men out front, and

Quiles told defendant to stay inside the house while she went out

front to try to diffuse the situation.                    Quiles took her child with

her.     Moore testified that the men "were really mad" and yelled

at Quiles, "where the fuck is he."

       Quiles testified that she started talking to Morales, who was

her son's godfather.          She told the men to go away or she would

call the police.          Quiles stated that one of the men then saw

defendant      "through     the    back    through            the   alleyway."     Quiles

testified that Wade then pulled "a big machete out of his pants."

Quiles asserted that she told Wade to stop, but Chica said, "fuck

that,    and   he   pulled    out   a     gun       and   pointed       it   directly    at"

defendant.      Quiles testified that Chica pulled the trigger twice,

but the gun jammed both times.                  The police later found a live

bullet in the alleyway.

       Each of the four witnesses who testified as to what happened

next, Reid, Uddin, Moore, and Quiles, gave different accounts.

                                            7                                     A-0864-14T3
Reid stated that he "heard gunshots" and "just started running"

until he was shot in the leg.      He saw Wade driving his car away

from the scene, but Wade's car then hit the sidewalk and the car

flipped over.     Reid did not know who shot him.

       Uddin claimed he saw that defendant "had, like, something—it

looked, like black or something, like—it looked like it was black,

and then [Uddin] ran to the front car to get cover . . . because

all [he] heard was boom, boom."       Once he was by one of the car's

tires, Uddin testified that he "felt something go through [his]

feet" and believed he had been struck by a "ricochet."          Uddin

stated he was "not sure" that defendant fired any of the shots,

but he opined that it "was probably him."

       Moore testified that he was sitting in the driver's seat of

his car and watching the argument.     He then heard Wade yell at him

to start the car.     Moore alleged that as he started the car, he

saw "a hand and a gun come out the alleyway, but that's all" he

saw.    Moore testified that he never saw who was shooting.

       Prior to the trial, Quiles told the police that defendant did

not have a gun.    However, after she was arrested, she gave another

statement in which she asserted that defendant did have a gun.

Quiles later testified at trial that after Chica tried to shoot

defendant, he pulled out a gun and started shooting at the men.

She and her child then ran inside the house.

                                  8                           A-0864-14T3
     In his oral statement to the police, defendant asserted that

when he walked out of the house to the alleyway, one of the men

pulled out a gun.    Defendant stated that the man with the gun

tried to shoot him, but the gun "didn't go off."     Defendant then

saw another man take out a machete and defendant took off running.

Defendant told the police, "I just kept going.    Like I ain't never

looked back until this day, know what I’m saying?      Like I ain't

never looked back at all.   Kept going.   That’s that."

     Moore drove Uddin and Reid to the hospital. Uddin was treated

for a gunshot wound to his foot and Reid was treated for a wound

to his leg.    Uddin was released that night, but Reid required

surgery and he remained in the hospital for almost three weeks.

     The police who responded to the scene found Wade dead in the

driver's seat of his car.    The autopsy revealed that Wade died

from a gunshot wound to his back which severed his aorta.         The

police did not find any bullet holes in the car, but the driver's

side and rear passenger side windows were open.    The police found

a machete "[b]etween the driver's seat and the door molding."

     Quiles testified that she did not see defendant again until

around midnight. A few days later, defendant, Quiles, and Quiles's

child went to upstate New York, where they stayed one night in a

hotel.   Quiles and her child returned to Patterson the next day.

On July 16, 2011, an arrest warrant was issued for defendant, but

                                9                            A-0864-14T3
he could not be located.    On July 28, 2011, defendant was arrested

in North Carolina.4

     Defendant did not testify at trial and did not call any

witnesses on his behalf.

                                  II.

     Defendant's defense at trial was that although he was present

at the scene when the shooting started, he ran away as soon as he

heard the shots fired.     Obviously, defendant had no obligation to

testify at trial or to tell the jury who shot Wade, Uddin, and

Reid.   State v. Jones, 364 N.J. Super. 376, 382 (2003) ("It is,

of course, a basic tenet of our criminal jurisprudence that a

defendant has no obligation to establish his innocence.").

     However, during his summation, the prosecutor told the jury:

               Ladies and gentlemen, when the witnesses
          told you that he [sic] saw the individual
          shooting from the alley, I don't expect you
          to believe it just because they came in here
          and said it.     But the physical evidence
          doesn't lie. Use your common sense. Say does
          what the physical evidence tell us match what
          they said.

               I don't expect you to believe them just
          'cause they walked in here. Does Ramos have
          a criminal record? Sure, he does. Does Syed
          Uddin have a criminal record? Sure, he does.
          I'm not asking you to believe them because

4
  As noted above, Quiles was later indicted for hindering
apprehension, obstruction, and endangering the welfare of her
child because she brought the child outside the house with her
when the six men arrived looking for defendant.

                                  10                         A-0864-14T3
          they're Boy Scouts. I'm asking you to believe
          them because what they said matches the
          evidence.

               Ladies and gentlemen, did six guys go
          down there looking for defendant? Yeah, they
          did. Was Dennis Wade one of them? Yeah, he
          was. Defendant himself says he went outside
          to the front to confront them. Who shot those
          men? Who else was in the alley? If anybody
          else was in the alley, defendant would have
          told you that.

          [(emphasis added).]

     At the end of the prosecutor's summation, defense counsel

objected to these comments and moved for a mistrial, based upon

the prosecutor's statement that "[i]f anybody else was in the

alley, defendant would have told you that."       The trial judge

dismissed the jury for the day and reserved decision on defendant's

motion.

     The next day, the trial judge denied the motion.     The judge

acknowledged that the prosecutor specifically told the jury that

if anyone else was in the alley, defendant would have told "you,"

meaning the jury, who that person was.   However, the judge found

that the prosecutor really meant to say that if anybody else was

in the alley, defendant would have told the police that in the

statement he gave to the police.     The judge noted that a court

should consider whether a curative instruction should be given

when a prosecutor comments "on the accused's silence," but the


                                11                          A-0864-14T3
judge denied defendant's motion without giving such an instruction

to the jury.

     In our judgment, the trial judge's characterization of the

prosecutor's   comment   was   overly   generous.   In   addition,    it

overlooked the fact that the remarks, coming right after the

prosecutor reminded the jury that the State's four witnesses had

come to court and "told" them what happened,        went right to the

crux of the defense.

     We have repeatedly commented on the impropriety of remarks

by the prosecutor implying to a jury that a defendant has an

obligation to present any evidence at all. In Jones, the defendant

was charged with aggravated assault, possession of a weapon for

an unlawful purpose, and unlawful possession of a weapon.       Jones,

supra, 364 N.J. Super. at 378.          He was found not guilty of

aggravated assault and convicted of the two weapons offenses.

Ibid.   During the course of the case, defense counsel cross-

examined various witnesses to elicit testimony that no fingerprint

tests had been performed on the weapon, and he commented on that

omission in his summation.     Id. at 381-82.

     In response, the prosecutor noted that while the defendant

had no burden of proof, the jury should ask itself why defendant

had not dusted the gun for fingerprints.        Id. at 382.   We noted

the Supreme Court's statement in State v. Frost, that "[t]he impact

                                  12                           A-0864-14T3
of violating a defendant's right to a fair trial cannot be measured

by, or weighed against, the quantum of evidence bearing upon his

innocence or guilt."      State v. Frost, 158 N.J. 76, 87 (1999).

     We further noted that the Court in Frost directed a tripartite

test to measure the impact of improper remarks in a prosecutor's

summation and determine a proper remedy:

           (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 83.]

Here, defendant's attorney did make a timely objection, the remarks

were not withdrawn, they were not stricken from the record, and a

corrective instruction was not given.

     State v. Cooke is also instructive.          345 N.J. Super. 480

(App. Div. 2001), certif. denied, 171 N.J. 340 (2002).         In that

case, the defendant was charged with two counts of burglary, two

counts of aggravated sexual assault, and two counts of sexual

assault.   Id. at 483.     The jury found him guilty of one count of

sexual assault. Ibid. The victim testified that on two occasions,

he awoke on the living room couch of his home to find a man



                                  13                           A-0864-14T3
performing oral sex on him.        Id. at 484.       The police responded to

the second incident and arrested the defendant.              Ibid.

    Although   the     defendant    did   not    testify     or   present   any

witnesses, the defense at trial was consent.             Id. at 485.    In the

course of his summation, the prosecutor remarked:

              Now, let's look back              at    the   defense
         theory. Consent again.

              Now, the Judge instructed you [on] the
         evidence in this case, where does it come
         from? From the stand when the witness takes
         it.

              You have zero in this case about consent.
         The only evidence you heard over there was the
         victim say that there was no consent.

         [Ibid.]

    The defendant's attorney did not move for a mistrial, but did

object, and the trial court gave a clear and strong curative

instruction.   Ibid.    The judge directed the jury as follows:

              Ladies and Gentlemen of the jury. I am
         instructing you to totally disregard anything
         you might have heard referring to the only
         evidence you heard over there.     Okay.  You
         must totally disregard this statement. Do not
         consider it.    Wipe it from your mind, and
         certainly you're not to use it during any of
         your deliberations.     Everybody understand
         that?

         [Id. at 486.]

    We noted that the prosecutor's remarks were clearly improper

because "a prosecutor should not in either obvious or subtle

                                     14                                A-0864-14T3
fashion draw attention to a defendant's decision not to testify."

Ibid.   (citing State v. Engel, 249 N.J. Super. 336, 382 (App.

Div.), certif. denied, 130 N.J. 393 (1991)).   However, we declined

to reverse the defendant's convictions in light of the strong and

immediate curative instruction provided by the trial judge.     Ibid.

Here, this defendant did not receive this relief.

     Our Supreme Court recently held that it is permissible for

the State to comment on a testifying defendant's post-arrest

omissions and inconsistencies in a statement he gave to the police

after waiving his or her Miranda5 warnings.      State v. Kucinski,

___ N.J. ___ (2017) (slip op. at 36).   Moreover, "[i]t is not an

infringement of a defendant's right to remain silent for the State

to point out differences in the defendant's testimony at trial and

his or her statements that were freely given."   Id. at 37 (quoting

State v. Tucker, 190 N.J. 183, 189 (2007) (emphasis in original).

     As stated above, however, the prosecutor did not tell the

jury that if anybody else was in the alley, defendant would have

told the police that in his oral statement to them.    Instead, the

prosecutor clearly stated that if someone other than defendant was

in the alley, defendant would have told the jury that was what

happened.   The prosecutor's remarks were clearly improper because


5
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                15                            A-0864-14T3
they drew the jury's attention to the fact that, unlike the State's

four eyewitnesses, defendant did not take the witness stand.                    The

statement also impermissibly shifted the burden to defendant to

disprove his guilt.       Thus, we conclude that the judge should have

excluded this portion of the prosecutor's summation and given a

strong curative instruction.             That did not occur.

       This error was clearly not harmless. Here, the State's proofs

were not overwhelming.            Defendant was acquitted of all of the

charges pertaining to the earlier incident with Ramos.                     Of the

four    witnesses    to   the     shooting      that   followed,    only    Quiles

specifically testified that defendant had a gun.                 However, Quiles

had previously given a contradictory statement to the police,

which she changed only after she was arrested and charged.                        In

addition, there was testimony that one of the men who went to

confront defendant had a gun and had attempted to shoot it.

       Moreover, even if the State's evidence was strong, this would

not give the prosecution license to present improper arguments to

the    jury,   and   it   would    not    authorize    us   to   disregard     that

impropriety when a defendant has properly sought relief but to no

avail.    Under these circumstances, we are constrained to reverse

defendant's convictions and remand for further proceedings.



                                         III.

                                         16                                A-0864-14T3
     Our conclusion that defendant's convictions must be reversed

makes it unnecessary to address defendant's contention in Point

IV of his brief that the sentence the trial judge imposed was

excessive.   We   add   the   following   brief   comments   concerning

defendant's remaining arguments.

     As part of her plea agreement, Quiles agreed to testify

honestly at defendant's trial.    Quiles had also pled guilty to the

hindering charge in count thirteen of the indictment, although she

had not yet been sentenced.    Defense counsel did not ask the trial

judge to include Model Jury Charges (Criminal), "Testimony of a

Cooperating Co-defendant or Witness" (2006) or Model Jury Charges

(Criminal), "Credibility—Prior Conviction of a Witness" (2003) in

the final charge to the jury.    In Point II of his brief, defendant

argues that the judge erred by not giving sua sponte instructions

on these two topics.    We disagree.

     Because defendant did not object to the final charge the

judge gave to the jury, we review the claimed error under the

plain error standard.    R. 2:10-2.

          In the context of a jury charge, plain error
          requires     demonstration     of     "[l]egal
          impropriety . . . prejudicially affecting the
          substantial    rights    of   the    defendant
          sufficiently grievous to justify notice by the
          reviewing court and to convince the court that
          of itself the error possessed a clear capacity
          to bring about an unjust result."


                                 17                             A-0864-14T3
          [State v. Burns, 192 N.J. 312, 341 (2007)
          (quoting State v. Jordan, 147 N.J. 409, 422
          (1997)).]

A "[d]efendant is required to challenge instructions at the time

of trial."    State v. Morais, 359 N.J. Super. 123, 134 (App. Div.)

(citing R. 1:7–2), certif. denied, 177 N.J. 572 (2003).             Failure

to do so creates a "presum[ption] that the instructions were

adequate."    Id. at 134-35.

     Reviewed under that standard, we discern no error, let alone

plain error.        Generally, a defendant has a right, upon request,

to a specific cautionary instruction that a witness' testimony

must "be carefully scrutinized and assessed in the context of his

specific interest in the proceeding."         State v. Begyn, 34 N.J. 35,

54 (1961) (quoting State v. Spruill, 16 N.J. 73, 80 (1954)).

     However, the charge carries "risks for the defendant because

phrasing is difficult to avoid conveying to the jury an impression

that the court is suggesting his guilt solely because the witnesses

have admitted theirs and implicated him."           Id. at 55.      We have

held that a judge may instruct jurors about a co-defendant "sua

sponte   if    he    or   she   thinks   it   is   advisable     under   the

circumstances."      State v. Shelton, 344 N.J. Super. 505, 520 (App.

Div. 2001), certif. denied, 171 N.J. 43 (2002).                However, the

Supreme Court has held that it is "[c]ertainly . . . not error,

let alone plain error, for a trial judge to fail to give this

                                    18                              A-0864-14T3
cautionary comment where it has not been requested."            State v.

Artis, 57 N.J. 24, 33 (1970).

     Here, defense counsel did not request a cooperating witness

instruction and, therefore, the judge did not err in failing to

provide such an instruction to the jury.        Moreover, a judgment of

conviction had not yet been issued concerning Quiles's plea, which

was contingent on her testimony at the trial.              Therefore, an

additional charge on the prior "conviction" of a witness would not

have been appropriate.

     In   addition,   defendant's    attorney   cross-examined     Quiles

extensively   concerning   the   terms   of   her   plea   agreement   and

addressed this issue again in his summation.          The trial judge's

general charge on credibility provided the jury with factors upon

which to assess Quiles's credibility.         The judge instructed the

jury that it could look to a witness's interest in the outcome of

the trial, possible bias, and any other matters in evidence which

would serve to support or discredit testimony.               That charge

adequately informed the jury as to the appropriate factors that

it could look to in assessing Quiles's testimony.

     Therefore, we reject defendant's contention on this point.

We also note that because we have reversed defendant's convictions,

he may ask for these specific jury charges on the remand should a

trial be necessary to complete this case.

                                    19                            A-0864-14T3
       Turning to Point III of defendant's brief, defendant admitted

to the police in his oral statement that he "was high" on the date

of the incident because he "was smoking" a "little weed" earlier

that    day.       Prior   to   trial,    defense    counsel    asked    that   the

references to marijuana use be redacted from the statement when

the State presented it to the jury.                   The trial judge denied

defendant's    motion,      finding      that    under    N.J.R.E.   404(b),    the

evidence was relevant to defendant's "ability to perceive events

as they're unfolding and react to events at least as the way he

portrays these events."          The judge did not conduct an analysis on

the record of the four factors set forth in State v. Cofield, 127

N.J. 328 (1992) before rendering his oral decision.                  He also did

not give a limiting instruction to the jury when defendant's

statement was presented.          Defendant contends that the judge erred

by     admitting     the   unredacted         statement    without   a   limiting

instruction.

       In response, the State argues that defendant's marijuana use

was part of the "intrinsic evidence" of the commission of the

crime.     "[E]vidence that is intrinsic to the charged crime is

exempt from the strictures of Rule 404(b) even if it constitutes

evidence of uncharged misconduct that would normally fall under

Rule 404(b)" because it is not "evidence of other crimes, wrongs,



                                         20                                A-0864-14T3
or acts."       State v. Rose, 206 N.J. 141, 177 (2001) (citation

omitted).

      In Rose, the Supreme Court approved of the Third Circuit's

"workable,     narrow    description     of   what   makes     uncharged      acts

intrinsic evidence of the charged crime, and therefore not subject

to Rule 404's directed purpose requirements."                Id. at 180 (citing

United States v. Green, 617 F.3d 233 (3d Cir. 2010)).                In Green,

the   Third    Circuit   stated   that   "evidence      is    intrinsic    if    it

'directly proves' the charged offense" or if the "uncharged acts

[are] performed contemporaneously with the charged crime [and]

. . . facilitate the commission of the charged crime."               Supra, 617

F.3d at 248-49.

      Here, it is by no means clear that defendant's marijuana use

prior to the incident was "intrinsic evidence" that he committed

the offense that followed.        Defendant's use of marijuana did not

"directly prove" that he was the shooter.            Defendant did not smoke

marijuana "contemporaneously" with the charged crime and the State

did   not     argue   that   defendant's      actions    "facilitate[d]         the

commission" of the shooting.

      In any event, the trial judge did not conduct a full analysis

of the issue under either Cofield or Rose.           Just as significantly,

the judge did not give the jury a limiting instruction on how it

was to consider defendant's use of marijuana earlier in the day

                                    21                                    A-0864-14T3
of the shooting.    It is well-established that if evidence of other

crimes under Rule 404(b) is admitted, the judge must instruct the

jury as to the limited purpose of the evidence and the restricted

significance that the jury can attach to it.           State v. Marrero,

148 N.J. 469, 495 (1997).      The trial judge's limiting instruction

"should be formulated carefully to explain precisely the permitted

and prohibited purposes of the evidence."            Cofield, supra, 127

N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).

     Moreover,     even   if   defendant's   marijuana    use   could    be

considered "intrinsic" to the shooting, a limiting instruction was

still required.     As we explained almost forty years ago in State

v. Ciuffini, a defendant's "contemporaneous use of illegal and

potentially dangerous drugs, insofar as it may relate to a witness'

ability to perceive and recall, is highly relevant to credibility."

164 N.J. Super. 145, 154 (1978) (citing State v. Franklin, 52 N.J.

386, 398-400 (1968).      However, although "this line of examination

is proper . . . , the jury should be carefully instructed that any

testimony about drug use is admitted solely for the purpose of

evaluating credibility, and no other."       Ibid.

     Therefore, assuming for purposes of this opinion that the

evidence of defendant's marijuana use was admissible under either

Cofield or Rose, the judge erred by failing to properly instruct

the jury on how to consider this evidence.       Should there be a new

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trial on remand, the parties may address this issue anew. However,

we note that the cumulative effect of the judge's mistake on this

point, when added to the prosecutor's improper statements during

summation,   provide     further     support   for     our   conclusion   that

defendant's convictions must be reversed.               State v. Simms, 224

N.J. 393, 407 (2016) (citing State v. Weaver, 219 N.J. 131, 155

(2014)   (noting   the   duty   of    an   appellate   court   to   reverse   a

defendant's conviction "[w]hen legal errors cumulatively render a

trial unfair").

     Reversed and remanded.          We do not retain jurisdiction.




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