                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5299-15T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

LUIS H. ELIAS-VELASCO,
a/k/a LUIS H. VELASCO,

     Defendant-Appellant.
____________________________

                   Submitted October 31, 2018 – Decided December 14, 2018

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 14-12-1832.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Gilbert G. Miller, Designated Counsel, on
                   the brief).

                   Dennis Calo, Acting Bergen County Prosecutor,
                   attorney for respondent (Jenny X. Zhang, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Luis H. Elias-Velasco appeals from a May 27, 2016 judgment

of conviction for third-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a). Although indicted and tried on two counts of second-degree sexual

assault, N.J.S.A. 2C:14-2(b) (counts one and two); one count of third-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count three); and one count

of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count

four), the jury convicted defendant only of count four as amended to a lesser-

included third-degree charge. Defendant argues the State's presentation of an

English transcript of his videotaped Spanish statement, absent testimony from

the translator as to its accuracy, violated his Sixth Amendment rights, and the

jury was improperly instructed with respect to the transcript. He also argues the

prosecutor's comments in summation deprived him of a fair trial.            After

reviewing the record in light of the contentions advanced on appeal, we affirm.

      Defendant was asked by a friend, D.G. (Danielle), to watch her two

children, H.T. (Hannah) and K.T. (Kyle), for the night while she went to the

hospital to give birth. 1 At the time, Hannah was eleven years old and Kyle was

fourteen. Defendant and his wife, D.N. (Donna) had previously lived with



1
  We use initials and pseudonyms to protect the privacy interests of the parties.
R. 1:38-3(c)(12).
                                                                         A-5299-15T3
                                       2
Danielle and the children for approximately five years, beginning when Hannah

and Kyle were toddlers. After moving into their own apartment, defendant and

his wife maintained their friendship with Danielle and continued to periodically

visit and babysit the children.

      In early August 2012, Hannah and Kyle spent the night at defendant's

home, a one-room apartment with a bed and a pull-out couch. Hannah and Kyle

slept in the bed while defendant and his wife shared the couch. The next day,

the children left to meet their mother at the hospital. Over the course of the next

two years, Hannah reported to several people -- including her best friend, Sandy;

her mother; a hospital employee; and a home therapist -- that defendant sexually

abused her while she stayed at his apartment that night.

      According to Hannah, before 8:00 a.m., as defendant was getting ready to

go to work, he climbed onto the bed, pulled down Hannah's pajama pants and

put his mouth and his hands on her vagina and backside, in non-penetrative skin-

to-skin contact. Hannah testified Kyle was in the bed at the time and Donna was

on the couch nearby, but both slept through the incident. According to Hannah,

the assault lasted about ten minutes, after which defendant left for work .

       Nearly two years later, Hannah told her therapist about the incident; the

therapist reported the allegations to the Division of Child Protection and


                                                                          A-5299-15T3
                                        3
Permanency, which referred the matter to the police. In August 2014, Hannah

and her mother spoke to Cliffside Park police detective George Santiago about

the incident. The police went to defendant's apartment and told his wife they

wanted to speak with him. Shortly thereafter, defendant voluntarily went to the

Cliffside Park police station.

       Defendant, a native Spanish speaker, was read his Miranda2 rights by

Detective George Santiago, who is fluent in Spanish, and was provided a

Spanish-language Miranda form. Defendant signed the form and agreed to

speak with the police. The interview was videotaped and conducted entirely in

Spanish. Defendant denied Hannah's allegations, but when asked by Santiago

whether it was possible, if defendant was very drunk, that he may have done

something and not remembered it, defendant stated, "is possible, . . . one

sometimes a little drunk, I don't know, one doesn't remember." At the end of

the interview, defendant was placed under arrest.

                                 I. The Statement

       At the Miranda hearing, the State presented an English-language transcript

of the interview prepared by a certified translator from the prosecutor's office.

Defense counsel was provided a copy of the transcript the day before the


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-5299-15T3
                                        4
hearing. Defense counsel, who appeared to be fluent in Spanish, told the court

she reviewed the transcript, and had "some proposed changes," which she

provided to the assistant prosecutor.

      The parties and the court followed along with the transcript while the

video of the statement played. Defense counsel and the prosecutor went page

by page, line by line, suggesting their respective edits of the transcript. Each

party consented to the other's edits. With respect to proposed redactions, the

prosecutor and defense counsel agreed to discuss redactions after the hearing

and come to an agreement before trial. At the close of the hearing, the judge

ruled the statement was admissible.

      On another day, the judge heard argument regarding defendant's motion

to redact certain portions of defendant's statement. In clarifying which portions

defendant wanted to redact, defense counsel referred to page and line citations

from the transcript. Defense counsel expressed her lack of concern about any

other portion of the transcript. After hearing argument from both parties, the

judge ruled the challenged portions of the statement admissible, but that a

limiting instruction would be required to "instruct the jury that it is their function

to determine if the statements were actually made by the defendant" and "if they




                                                                             A-5299-15T3
                                          5
are credible." The judge instructed counsel "to work together to come up with

a limiting instruction for the [c]ourt."

                                   II. The Trial

      The State presented five witnesses at trial: Hannah's mother, Danielle;

Hannah; Kyle; Hannah's best friend, Sandy; and Detective Santiago. Defendant

called Donna and two character witnesses. He elected not to testify.

      Sandy testified that Hannah told her on the afternoon of August 3, 2012,

that "something happened" and "somebody touched her" while she stayed at

defendant's house the night before, but Hannah did not give specific information

or identify defendant. Hannah's mother testified that Hannah told her on or

around August 4, 2012, that "the man had touched her" in her "intimate part,"

while she stayed at defendant's home, but Danielle elected not to contact the

police, and instead, told Hannah to stay away from defendant and his wife.

      Donna testified that on the morning of the incident, she and defendant

woke up together just before 7:00 a.m., and she helped him get ready for work

as the children slept. Donna stated that the children slept through the night, and

were asleep through the time defendant left for work. Donna also testified that,

about two weeks before trial, the police brought her to the station and asked her

six specific questions. On cross-examination, the prosecutor asked Donna


                                                                         A-5299-15T3
                                           6
whether one of the questions was if she "[saw] or [heard] anything" on the night

of the incident.    Donna confirmed that was one of the questions.         Donna

confirmed that she did not tell the police about checking on the children in the

middle of the night, or certain other details about helping defendant get ready in

the morning, to which she had testified on direct.

      The video of defendant's statement was played for the jury during

Detective Santiago's testimony. The video was presented on a split-screen, with

the transcript scrolling on one side of the screen as the video played; each juror

was also provided a hard copy of the transcript to follow along as the video

played. The translator who prepared the English transcript was not called to

testify as to its accuracy.

      Defendant argues on appeal:

             POINT I: THE JURY'S USE OF THE ENGLISH-
             LANGUAGE TRANSCRIBED TRANSLATION OF
             DEFENDANT'S     VIDEOTAPED     SPANISH-
             LANGUAGE STATEMENT TO POLICE, AS A
             DETECTIVE UNSCROLLED THE TRANSCRIPT
             ON HALF OF A SPLIT SCREEN AT A PACE
             PURPORTEDLY SYNCHRONIZED WITH THE
             UNFOLDING DIALOGUE OF THE VIDEOTAPED
             STATEMENT PLAYING ON THE OTHER HALF OF
             THE SCREEN, WITHOUT THE TRANSLATOR
             APPEARING    TO   TESTIFY   THAT   THE
             TRANSLATION ON THE TRANSCRIPT WAS
             AUTHENTIC AND ACCURATE, VIOLATED THE
             SIXTH AMENDMENT'S PROHIBITION AGAINST

                                                                         A-5299-15T3
                                        7
            TESTIMONIAL HEARSAY AND THE HEARSAY
            PROSCRIPTION OF THE NEW JERSEY RULES OF
            EVIDENCE. (Not raised below)

            POINT II:       THE COURT'S INSTRUCTIONS
            REGARDING THE JURY'S EVALUATION OF
            [DEFENDANT'S] VIDEOTAPED STATEMENT
            WERE PLAINLY ERRONEOUS, AS THEY
            DEPRIVED HIM OF HIS CONSTITUTIONAL
            RIGHT TO AN IMPARTIAL JURY AND A FAIR
            TRIAL. (Not raised below)

            POINT III: THE PROSECUTOR ENGAGED IN
            MULTIPLE INSTANCES OF MISCONDUCT ON
            SUMMATION WHICH INDIVIDUALLY AND
            CUMULATIVELY DEPRIVED DEFENDANT OF A
            FAIR TRIAL.

               III. English Transcript of Defendant's Statement

      Defense Points I and II were not raised in the trial court and are therefore

reviewed for plain error. R. 2:10-2. Plain error is one that is "clearly capable

of producing an unjust result." R. 2:10-2. Such an error 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." State v. Chavies, 345 N.J. Super. 254, 265

(App. Div. 2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

      Before the video was played, the judge explained to the jurors the process

by which the transcript would be displayed along with the video, and told the

jury they had "the option of reading and watching on the screen or reading the


                                                                         A-5299-15T3
                                        8
transcript . . . ." Defense counsel did not object. The judge offered no other

instruction to the jurors at that time.

      At one point, a juror asked what "IA" meant, as it appeared on the

transcript. The question was then posed to Detective Santiago, who testified:

"Inaudible, occasionally the acoustics in the room don't always allow for clear

sound to be picked up. So if the transcriber can't figure out what it is, they don't

guess they just put down inaudible."

      The transcript was marked for identification, but was not admitted into

evidence because the State objected. Defendant argues the use of the transcript

at trial, absent any testimony from the transcriber as to its accuracy, violated the

Sixth Amendment's prohibition on testimonial hearsay, and the New Jersey

evidence rules. Defendant further asserts the court improperly instructed the

jury with respect to his statement. Neither argument was raised in the trial court.

      According to defendant, the transcript was prepared in anticipation of, and

for the purpose of, litigation, and therefore does not fall under any business

record exception to the hearsay rule. Defendant contends the fact that the

transcript was never formally submitted into evidence is irrelevant; the jurors

were provided no other means of translating defendant's videotaped statement,




                                                                           A-5299-15T3
                                          9
therefore, the translation constituted substantive evidence, not simply a visual

aid.

       "Mistakes at trial are subject to the invited-error doctrine." State v. A.R.,

213 N.J. 542, 561 (2013). "Under that settled principle of law, trial errors that

'were induced, encouraged or acquiesced in or consented to by defense counsel

ordinarily are not a basis for reversal on appeal . . . .'" Ibid. (quoting State v.

Corsaro, 107 N.J. 339, 345 (1987)).

       Appellate courts may consider an induced or invited error on appeal if that

error "cut mortally into the substantive rights of the defendant." State v. Harper,

128 N.J. Super. 270, 277 (App. Div. 1974). In such cases, the court may decline

to apply the invited error doctrine when doing so would "cause a fundamental

miscarriage of justice." N.J. Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 342 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 508

(1996)).

       Here, defense counsel actively participated in the creation of the

transcript, referred to the transcript in her motions and her closing argument,

and insisted the jury not watch portions of the videotaped statement without the

accompanying transcript.       Indeed, defense counsel told the jury during

summation to "focus . . . on that statement because you'll have it. And, you can


                                                                           A-5299-15T3
                                        10
read parts of it or all of it." When the jury requested to view certain video clips

of the statement during deliberations, defense counsel insisted, "you can't just

play the clips without the transcript."

      Given defendant's participation in perfecting the English transcript and

active involvement in urging the jury have access to the transcript, we find no

error in its use.

                                 IV. Jury Charge

      Defendant also claims the court had an obligation to instruct the jury "as

to how the jury should deal with the interrelation between the English language

on the transcript and Spanish language of the videotaped statement which was

actually in evidence." Defendant further asserts the court should have instructed

jurors "not to use any [personal] knowledge of Spanish which they might have

to interpret the Spanish on the videotape," as such knowledge constitutes an

improper outside influence on the jury.

      The judge asked defense counsel for input regarding "the instruction on

defendant's statement." Defense counsel stated, "I took a stab . . . at drafting

something that I thought somewhat applies but I didn't find in the model [jury]

charges . . . if I could just make some copies and just give these to the State."

Defense counsel then provided the prosecutor and the court with a copy of her


                                                                          A-5299-15T3
                                          11
proposed jury instructions.    Defense counsel explained where to place her

recommended wording within the overall charge. The prosecutor responded, "I

have no objection to the language." Defense counsel and the prosecutor then

conferred about the final charge with respect to the statement, with defense

counsel stating "[t]hat's fine" to the final proposed charge.

      After closing arguments, the trial judge provided the following

instructions with respect to defendant's statement:

            Now, I want to address with you the statement by the
            defendant.

            There is for your consideration in this case, a recorded
            statement made by the defendant. In considering how
            much weight, if any, you should place on this statement
            or portions thereof, you should take into consideration
            all of the facts and circumstances regarding both the
            taking of the statement and the answers that were given
            to the questions that were asked as well as the other
            evidence relating to this case.

            If after consideration of all of these factors, you
            determine that the statement is not credible, then you
            must completely disregard that statement. If you find
            that part or all of the statement is credible, then you may
            give whatever weight that you think is appropriate to
            that portion or portions of the statement that you find
            truthful an[d] credible.

            As I mentioned, there is, for your consideration in this
            case, a recorded statement made by the defendant. It is
            marked S-15 in evidence and you will have a copy of it
            when you are in the jury room. I instruct you in that

                                                                          A-5299-15T3
                                       12
            case that there are also, and I've already told you this
            once before, there are certain portions of the recorded
            statement that are redacted -- they've not been provided
            to you.

            You may only consider those portions of the statement
            which have been admitted into evidence and must not
            speculate as to the contents of the omission or the
            reason or reasons for the omissions.

      After the judge finished giving the jury these instructions, the prosecutor

reminded the judge that the jury would not have a copy of defendant's statement

with them in the jury room. The judge then gave the following instruction:

            All right, ladies and gentlemen of the jury, there's just
            one modification to my instruction. When I -- when I
            referred to [defendant's] statement, I indicated that you
            would have that in the jury room.

            That is the one thing you will not have in the jury room.
            If you wish to view that statement, you will come back
            out into the courtroom -- that's only if you wish to,
            obviously. And, you will consider all of the evidence
            collectively.

            But, if you do wish to view the statement, you'll have
            to come back out to court and then obviously a
            transcript can be provided to you if -- if that's how you
            wish to view it. Or, you can just view as Counsel has
            been doing where it's a half screen -- the interview and
            then the translation.

      Before deliberations began, the trial judge asked the parties "to view all

the evidence to make sure that the evidence and the verdict sheet [were] in


                                                                         A-5299-15T3
                                      13
order," and asked both counsel, "[c]an you state for the record . . . whether the

evidence and verdict sheet are in order?" Defense counsel stated, "Yes, Judge.

I did review the evidence. It is in order. I did, also, review the verdict sheet

and some of the jury instructions." Defense counsel offered no objections or

suggested changes or additions to the jury instructions.

      During deliberations, the jury requested to view the videotape of

defendant's statement again with the transcript. Defense counsel offered no

objection. The jurors were shown the video and provided copies of the transcript

to follow along. Afterwards, one of the jurors appears to have asked whether

the jury could take the transcript into the jury room, to which the judge

responded, "[y]ou cannot." The judge gave the following instruction:

            Ladies and gentlemen of the jury, you requested a
            playback of the audio statement of the defendant. And
            that recorded testimony has been played for you. In
            your deliberations you are instructed to consider all of
            the evidence and not give undue weight to the
            testimony you've heard being played back. You are to
            consider all of the evidence.

      After deliberating for a few hours, the jury again requested to re-watch

the portions of defendant's statement the prosecutor had played during her

summation. Defense counsel proposed showing the jury a segment of the video

containing all four "clips" used by the prosecutor, rather than playing the clips


                                                                         A-5299-15T3
                                      14
alone without the intervening content. Defense counsel argued it "make[s] more

sense to play them continuously because you can't just play the clips without the

transcript . . . ."

       The jurors were then played the entire segment of defendant's statement

containing the four clips, and were again provided the transcript to follow along.

Afterwards, the judge instructed the jury again that they "must consider all of

the testimony collectively."

       The jury did not reach a verdict on the first day, so deliberations continued

the following day, when another judge stood in for the trial judge, who was

unavailable. The jury requested "to see the transcript of [defendant]'s testimony,

video, again for clarification to help us decide?" Defense counsel informed the

new judge that the reason the transcript was not in evidence was because the

State would not stipulate to its accuracy.

       The jury was played the portion of defendant's statement corresponding to

pages eighteen through twenty-seven of the transcript. After the video was

played, the judge reminded the jury "to consider all the evidence presented, and

don't give undue weight to any specific testimony that you've heard. Consi der

everything in the context."




                                                                           A-5299-15T3
                                        15
      When a defendant does not object to a jury charge at trial, the charge is

reviewed under the plain error doctrine. State v. Noble, 398 N.J. Super. 574,

593 (App. Div. 2008); see also R. 1:7-2; R. 2:10-2. In the context of a jury

charge, plain error is "[l]egal impropriety in the charge 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." Noble, 398 N.J. Super. at 593

(alteration in original) (quoting State v. Brown, 190 N.J. 144, 160 (2007)).

      "[E]rroneous [jury] instructions are almost invariably regarded as

prejudicial.   Such errors are 'poor candidates for rehabilitation under the

harmless error philosophy.'" State v. Vick, 117 N.J. 288, 289 (1989) (quoting

State v. Crisantos (Arriagas), 102 N.J. 265, 273 (1986)).        In reviewing a

challenged jury instruction, the appellate court "must read the charge 'as a whole

[to determine] whether there was' plain error." Noble, 398 N.J. Super. at 594

(quoting State v. Torres, 183 N.J. 554, 564 (2005)).

      Defense counsel actively participated in the drafting of the jury charge

regarding defendant's statement. She was instructed by the court to submit a

proposed instruction and she did so. Defense counsel's active participation in

crafting the transcript and the jury instructions precludes reversal, based on the


                                                                         A-5299-15T3
                                       16
invited error doctrine. As we stated in A.R., "[t]his case is not one . . . in which

defense counsel merely failed to object to the course selected by the trial judge."

A.R., 213 N.J. at 561 (applying invited error doctrine); cf. State v. Bailey, 231

N.J. 474, 490 (2018) (declining to apply invited error for jury charge where

defendant failed to object to use of the model jury instruction).

      Application of the invited error doctrine in this context would not cause a

fundamental injustice. Defendant does not argue the transcript was inaccurate.

The jury was instructed to consider the full context of defendant's statement and

was repeatedly instructed not to give the statement undue weight in relation to

other evidence.

                          V. Prosecutorial Misconduct

      "Prosecutors in criminal cases are expected to make vigorous and forceful

closing arguments to juries." State v. Timmendequas, 161 N.J. 515, 587 (1999).

In reviewing the challenged portion(s) of a prosecutor's closing argument,

appellate courts must "consider the 'fair import' of the State's summation in its

entirety."   State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.

Wakefield, 190 N.J. 397, 457 (2007)). "A finding of prosecutorial misconduct

does not end a reviewing court's inquiry because, in order to justify reversal, the

misconduct must have been 'so egregious that it deprived the defendant of a fair


                                                                           A-5299-15T3
                                        17
trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J.

76, 83 (1999)).

            Three factors guide the [reviewing] [c]ourt's
            assessment of the impact of improper prosecutorial
            remarks: "(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."

            [Jackson, 211 N.J. at 409 (quoting Smith, 167 N.J. at
            182).]

      In summation, the prosecutor began by addressing the undisputed facts –

that Hannah and Kyle spent the night at defendant's apartment in early August

2012; that defendant and his wife were good family friends of Danielle and the

children prior to the incident; and that defendant and his wife had both stated

that they loved the children as their own. When addressing the testimony of the

witnesses, the prosecutor made several comments with which defendant takes

issue, most of which defendant objected to at the time. In discussing Donna's

testimony, the prosecutor told the jury:

            What I find unacceptable -- what I find insulting, is that
            she will come here and testify that she remembers
            waking up and checking the children, that she
            remembers what time it was, getting the clothes for him
            -- all this stuff, but two weeks ago, that she never told
            the police that at all.


                                                                          A-5299-15T3
                                       18
            . . . She went to the police department. She answered
            the questions. She was told that she didn't have to and
            she did.

            And, in those questions about what happened on August
            2nd, 2012, never mentioned it at all. So, how do two
            weeks later, you come here and come up with a story -
            - literally invented from thin air, that we are supposed
            to rely on.

Defense counsel objected, and the court overruled the objection.

      The prosecutor continued, opining that Donna's failure to report certain

details to the police did not merely constitute inconsistency in her testimony,

but rather, was indicative of "deceit. Deceit is someone who comes and lies to

you. That's the lie that is unacceptable."

      Moving on, the prosecutor addressed Donna's trial testimony that Danielle

would occasionally leave the children with defendant and Donna from Friday

through Sunday, despite initially stating she would pick them up on Saturday.

The prosecutor made the following comments, over defendant's objections:

            [PROSECUTOR]: And, the third thing that I wanted to
            point out that I recall from [Donna]'s testimony -- and
            what I found, I don't know maybe just personally
            offensive, was that --

            [DEFENSE COUNSEL]: Objection, Judge.

            THE COURT: Counsel -- personally offensive, please
            rephrase.


                                                                       A-5299-15T3
                                       19
            [PROSECUTOR]: Okay. What I submit that I would
            think is offensive is that she comes and talks so poorly
            about [Danielle]. [Danielle], who is the child's mother,
            who is not a witness to anything, who has never said a
            bad word about her at all, who has never called the
            police on her husband, who has -- who she has known
            intimately, by her own words, who she has lived with,
            and who she has known, who she knew when she lived
            with the children's father, who she knew how this father
            left them to go to another country, that she knew that
            she worked cleaning on her hands -- on her hands and
            knees cleaning toilets and all you can think of --

            [DEFENSE COUNSEL]: Objection, Judge. There's no
            testimony to that effect.

            [PROSECUTOR]: That was in the witness' testimony.

            THE COURT: The testimony is that [Danielle] cleaned
            homes -- cleaned houses. Please proceed.

            [PROSECUTOR]: That was the testimony by [Donna]
            -- that she knew that to be true. And, if that's what she
            knows to be true, that the only thing that she can come
            here to tell -- to add on is that, oh, to try to disparage
            [Danielle] as a mother somehow. Because, somehow
            that would help. I didn't understand. But, it is offensive
            that you can go that far. Because there is no evidence
            at all that these children were not taken care of or not
            provided for.

      The prosecutor then addressed Danielle's actions in failing to call the

police when Hannah purportedly disclosed the abuse in 2012. Defense counsel

had argued that Danielle's failure to report the incident to police was evidence



                                                                         A-5299-15T3
                                       20
that in fact, Hannah never made the disclosure to her in 2012. Countering that

claim, the prosecutor argued, again over defendant's objections:

            [PROSECUTOR]: I don't know how you feel about
            that. But, I -- I can't help it -- you know, it's like, how
            do you not call the police. Your daughter tells you this
            -- a man touched her. She tells you it's definitely in her
            private parts. And, you sit there and you cry and you
            let your daughter cry and you tell her to stay away.
            And, you just -- you feel that that's protecting her.

            I don't know how you feel about it, but I feel like I could
            never do that.

            [DEFENSE COUNSEL]:              Objection, Judge.    How
            [c]ounsel would feel --

            [THE COURT]: Counsel, I'm going to ask that we
            allow [c]ounsel to complete her closing statement.

            [DEFENSE COUNSEL]: Yes, Your Honor. But, it's
            inappropriate for [c]ounsel to say what she would feel
            -- what she would do.

            THE COURT: Counsel, continue. Overruled.

            [PROSECUTOR]: But, I have a law degree. I have a
            job. I have extended friends and family. I have a loud
            voice. I have the ability to do more I would hope. But,
            if I was in [Danielle]'s position, could I do any better?
            I don't know.

      Finally, the prosecutor argued against the defense counsel's use of the term

"young woman" to describe Hannah, who was fourteen at the time of trial. She

described Hannah's demeanor while testifying:

                                                                          A-5299-15T3
                                       21
            [Y]ou saw her on that stand. It's when she slumped
            down and she put her head down as she couldn't look
            you in the eye. That's humiliation. It's when she was
            grabbing those tissues and fighting slowly to tell you
            what happened, frame by frame. That's being degraded
            -- struggling up on that stand to get through it without
            breaking down.

            That's the maturity of the [fourteen] year old now.
            That's not the maturity that she had when she was
            [eleven]. But, you saw the [eleven] year old up there
            telling you how in, literally minutes, this defendant
            climbed around and climbed through up on that bed.

      Defense counsel did not object. The prosecutor then made several more

comments indicating the jury should view Hannah as an eleven year old,

including: "[Eleven] year old [Hannah] can't say vagina. [Eleven] year old

[Hannah] says girl private parts"; and "it was [eleven] year old [Hannah] up

there on that stand, looking down . . . , explaining where else or how else he

touched her . . . with his mouth. What [eleven] year old knows anything about

a man's mouth touching a vagina?"

      Defendant argues that the prosecutor's "improper and prejudicial" remarks

during summation "individually and cumulatively" deprived him of a fair trial.

Defendant claims the prosecutor: (1) imposed her personal opinions on the jury;

(2) disparaged a defense witness; (3) made comments not supported by the

evidence; and (4) inflamed the passion of the jury.


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      All persons accused of crimes are guaranteed the right to a fair trial. U.S.

Const. amend. VI; N.J. Const. art. I, ¶ 10.          When a defendant alleges

prosecutorial misconduct, we conduct a two-part analysis. Wakefield, 190 N.J.

at 446.    First, we must determine "whether the prosecutor committed

misconduct." Ibid.; see also Smith, 167 N.J. at 181. Second, we "must decide

whether the prosecutor's misconduct constitutes grounds for a new trial." Smith,

167 N.J. at 181. "In determining whether the prosecutor's comments were

sufficiently egregious to deny defendant a fair trial, we consider the tenor of the

trial and the responsiveness of counsel and the court to the improprieties when

they occurred." Timmendequas, 161 N.J. at 575.

      Prosecutors are afforded "considerable leeway in closing arguments so

long as their comments are reasonably related to the scope of the evidence

presented." Timmendequas, 161 N.J. at 587-88 (finding prosecutor's graphic

description of the murder to be a "proper reconstruction" based on the evidence).

"Nevertheless, prosecutors also have the overriding obligation to see that justice

is fairly done." State v. Gregg, 278 N.J. Super. 182, 185, 187-88, 190 (App.

Div. 1994) (reversing conviction for aggravated manslaughter, despite "more

than sufficient" evidence to sustain the conviction, due to prosecutor's

prejudicial statements in summation).


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      "Prosecutors may not make inaccurate factual or legal assertions during

summation . . . ." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003)

(finding misconduct when prosecutor referred to the victim as "an athletic young

pretty mother of two children," which was not part of the trial testimony); see

also Frost, 158 N.J. at 80-81, 84–85 (finding misconduct when prosecutor stated

that "buy money" allegedly used in drug transaction was not presented at trial

because it was "confiscated" and therefore inadmissible; statement was "not only

inaccurate, [but] misleading"). Nor may prosecutors make comments "solely to

inflame the jury and elicit passion." State v. Williams, 113 N.J. 393, 448, 457

(1988) (reversing murder conviction where prosecutor's guilt phase opening

statement extolled the virtues of the victim and described her as "[filled with]

such joy, such hope, such promise").

      Furthermore, "[a] prosecutor is not permitted to cast unjustified

aspersions" on the defense, or defense counsel's motives. State v. Lockett, 249

N.J. Super. 428, 432, 433-34 (App. Div. 1991) (reversing conviction where

prosecutor stated defense counsel's strategy was to distract the jury from the

evidence); see also Gregg, 278 N.J. Super. at 189, 191 (requiring new trial where

prosecutor referred to defendant as "disgusting, a ninny, a buffoon, nasty, and

violent, and using a whole slang dictionary's worth of demeaning


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colloquialisms"). Lastly, a prosecutor may not "express his [or her] personal

opinion on the veracity of any witness." State v. Rivera, 437 N.J. Super. 434,

463, 465 (App. Div. 2014) (reversing conviction where prosecutor's statement

that "defendant is lying to you" was not supported by any evidence of

contradiction, and prosecutor improperly opined that "the reality is [the State's

witness] is not lying").

      In sum, "prosecutors should confine their summations to a review of, and

an argument on, the evidence, and not indulge in improper expressions of

personal or official opinion as to the guilt of the defendant, or [otherwise

engage] in collateral improprieties of any type, lest they imperil otherwise sound

convictions." Frost, 158 N.J. at 88 (alteration in original) (quoting State v.

Thornton, 38 N.J. 380, 400 (1962)).

      Here, the prosecutor improperly inserted her personal opinion into the

case – describing what she found "insulting," what she found "unacceptable,"

and what she found "personally offensive." See Jenkins, 299 N.J. Super. at 70.

The judge corrected this expression of personal opinion once, but not every time

it occurred. The prosecutor also injected herself inappropriately with respect to

Danielle's failure to contact the police in 2012, telling the jurors that even the




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prosecutor herself, with all of her education, power, and resources, might not

have done "any better" than Danielle.

      The prosecutor's reference to Danielle cleaning toilets "on her hands and

knees" was also an over-dramatization of the testimony that Danielle cleaned

houses, and the judge corrected the prosecutor.

      Many of the allegedly inappropriate comments were responses to the

defense summation. See State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.

1996) (noting that "[a] prosecutor may respond to an issue or argument raised

by defense counsel" because his or her "response to an issue injected b y

opposing counsel cannot be considered a foray beyond the evidence adduced at

trial"); see also State v. McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011)

(finding that "[a] prosecutor's otherwise prejudicial arguments may be deemed

harmless if made in response to defense arguments"). The question is whether

the prosecutor's inappropriate comments were "sufficiently egregious to deny

defendant a fair trial." Rodriguez, 365 N.J. Super. at 48. In this case, the jury

deliberated extensively, asking to review defendant's statement multiple times.

      A reviewing court must look at the closing as a whole, not just isolated

remarks. State v. Whittaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008);

State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008); see also State v.


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Engel, 249 N.J. Super. 336, 379 (App. Div. 1991) (explaining that the reviewing

court should take into consideration tenor of trial, conduct of counsel, comments

of defense, and conduct of court). Here, although the prosecutor stepped over

the line in her summation, taken as a whole it did not deprive defendant of a fair

trial, especially given the defense summation.

      The errors alleged by defendant did not prejudice defendant, cut mortally

into his substantive rights, or lead the jury to an outcome it may otherwise not

have reached.      See Macon, 57 N.J.at 335-36 (discussing the standard for

harmless error).

      Affirmed.




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