                                NOT FOR PUBLICATION WITHOUT THE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 p osted 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-1627-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES A. STUART,

     Defendant-Appellant.
__________________________

                    Submitted January 28, 2020 – Decided March 2, 2020

                    Before Judges Accurso and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 13-09-
                    0949.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Dana R. Anton, Senior
                    Assistant Prosecutor, on the brief).

PER CURIAM
      David Compton was shot in the head while at the home of defendant James

Stuart. Compton later died from the gunshot wounds. Defendant has never

disputed that he shot Compton.         The issue is whether the shooting was

intentional, reckless, or a tragic accident.

      Defendant has been tried twice for the shooting of Compton. Following

his first conviction for murder and aggravated manslaughter, we reversed and

remanded for a new trial because of errors in the jury charge. State v. Stuart,

No. A-3262-15 (App. Div. Aug. 3, 2017).

      A   second    jury   convicted    defendant   of   second-degree   reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included offense of first-

degree murder, N.J.S.A. 2C:11-3(a)(2). Defendant was sentenced to seven years

in prison with periods of parole ineligibility and parole supervision following

his release from prison, as prescribed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

      Defendant now appeals his second conviction, contending there were

errors at his second trial that warranted a reversal of his conviction and the

sentence was excessive. We affirm his conviction. We remand for resentencing

so that the court can rebalance the aggravating and mitigating factors without

considering aggravating factor one. We also remand so the court can consider


                                                                         A-1627-18T4
                                         2
whether defendant should be disqualified from all future state employment in

addition to his forfeiture of past state employment.

                                       I.

       We derive the facts from the testimony and evidence presented at the

second trial. In 2013, defendant was a Deptford Township police officer.

      On January 4, 2013, defendant, while off duty, went out to a bar with a

group of friends. Compton was one of those friends. Defendant and his friends

drank various alcoholic beverages together for several hours. Compton and

defendant then went to defendant's home where they continued to drink and

watched a movie. While watching the movie, defendant removed a Glock 27

handgun from his ankle holster. As a police officer, defendant was required to

carry a gun, even when off duty except when doing so would be impracticable.

The Glock 27 was defendant's department-approved off-duty handgun.

      According to defendant, Compton asked to see the gun.          Defendant

testified at trial that he made the weapon safe by removing the magazine and

placing the round that had been in the chamber on a table. Defendant next dry

fired the gun and then allowed Compton to handle the weapon. Defendant also

retrieved two other guns – his service weapon, a Glock 22, and a revolver – from

a gun safe and showed those weapons to Compton.


                                                                        A-1627-18T4
                                        3
      According to defendant, he thereafter fell asleep while watching the

movie. Sometime later, defendant claims he woke up suddenly when he was

startled by a loud scene in the movie. Defendant picked up the Glock 27

intending, according to defendant, to dry fire it at the movie screen. Compton,

however, was shot in the head.

      At approximately 5 a.m. on January 5, 2013, defendant called an

emergency dispatcher at the Gloucester County Communication Center and

reported that Compton had been shot.          Several Deptford police officers

responded to defendant's home. They found Compton slumped over on the

couch, still alive, but with a bullet hole in his cheek. Two responding officers

testified that defendant appeared to be in a state of shock and that he was taken

to the backyard.

      The officer who accompanied defendant to the backyard testified that

defendant was walking and talking slowly, smelled of alcohol, and appeared to

be intoxicated. That officer also testified that he heard defendant call his union

representative and leave him a message.

      Compton was transported to a hospital. A trauma surgeon who treated

Compton testified that the gunshot fractured Compton's first cervical vertebra

and injured one of the arteries that provided blood to Compton's brain. The


                                                                          A-1627-18T4
                                        4
surgeon also testified that those injuries caused severe neurological damage and

Compton never regained consciousness. Compton's family removed him from

life support, and he died.

      After Compton was taken to the hospital, defendant was transported to the

police station. The officer who drove defendant to the police station testified

that defendant fell asleep on the ride. At the station, defendant was interviewed

by a detective from the prosecutor's office. Defendant told that detective that

Compton had not shot himself; instead, Compton was shot when defendant and

Compton were dry firing the guns and one of them went off. Defendant also

told the detective that he panicked after the shooting and put all the guns in his

safe before emergency medical help arrived.

      Several law enforcement personnel who dealt with defendant after the

shooting testified that he appeared to be under the influence of alcohol.

Defendant consented to provide blood and urine samples and testing revealed

that defendant's blood alcohol level was approximately .14 percent.

      At defendant's home, the police recovered a spent .40 caliber shell casing

and a live .40 caliber bullet under a table near the couch. In defendant's

bedroom, police found the Glock 27 on the top of a bureau and the two handguns

in a safe in the bedroom closet. The Glock 27 had its magazine in the gun and


                                                                          A-1627-18T4
                                        5
the magazine contained nine .40 caliber bullets. At trial, an officer explained

that the Glock 27 had an extended clip that could hold ten bullets, with an

additional bullet in the chamber. The Glock 22 was found with the magazine

outside the gun and one bullet in the chamber of the gun. Both the Glock 22 and

Glock 27 fire a .40 caliber bullet. The second handgun in defendant's gun safe

was an unloaded .38 caliber revolver.

      At defendant's second trial, which was conducted in August 2018, thirty-

one witnesses testified including several experts and defendant. One of the

state's experts was a ballistic expert. He examined the Glock 27 and found that

it was in working order. He opined that the recovered shell casing had been

fired from the Glock 27.     He also testified that the bullet recovered from

Compton during the autopsy was too damaged to match it to a particular gun.

      The state also called a Deptford police captain who supervised firearms

instruction for the police department. 1     The captain described the police

department's gun training and safety policies. In that regard, he explained that

officers were only allowed to point a weapon at a person when performing a

law-enforcement function. The captain also testified that it would be an illegal



1
 At the time of the incident in 2013, the captain was a lieutenant in the Deptford
Township Police Department's special services division.
                                                                          A-1627-18T4
                                        6
aggravated assault to point a weapon at someone when not exercising a law-

enforcement function.     The captain also explained that the Glock 27 was

defendant's registered off-duty weapon.

      During his testimony at trial, defendant contended that the shooting was

an accident because he believed the Glock 27 was unloaded and he did not point

the weapon at Compton. Defendant also testified that one of the responding

police officers told him to call his union representative and that it was his

understanding that his union representative would hire an attorney for him.

      On cross-examination, the prosecutor asked defendant if he was "aware

that it's illegal to point a firearm at or in the direction of any person, whether

you think it's loaded or unloaded." Without objection, defendant responded that

he understood that it was a crime to knowingly point a gun at another person.

      In her summation, the assistant prosecutor made arguments about the call

to the union representative and the criminal nature of pointing a firearm at

someone. The assistant prosecutor argued that when defendant called his union

representative, he was not acting like a person in a state of panic; rather, he was

acting out of his own "self-preservation." In that regard, the assistant prosecutor

argued:

                  So defendant is outside, guzzling water, trying to
            sober up, trying to wash gun residue off his hands. Who

                                                                           A-1627-18T4
                                        7
            knows? But he's outside. No other suspect would have
            been able to guzzle water. And before David Compton
            is even taken out of the house for treatment, he is on the
            phone to his union representative.         Again, self-
            preservation. And he falls asleep on the way to the
            police station.

                   What does that tell you? What do those facts tell
            you about his state of mind? He wants you to believe
            that he was in a panic over what happened. I don't know
            that that – those are the actions of someone in a panic
            over what happened.

      With regard to pointing a gun at another person, the assistant prosecutor

contended that such an act was a crime and that crime was part of a link in a

chain of events showing defendant's reckless indifference. Specifically, the

assistant prosecutor in her closing contended:

            Even if everything defendant said to you is true - which
            the State submits to you that it's not - but even if what
            he said is true, it's still aggravated manslaughter, it's
            still is aggravated manslaughter.

                  Think of it as a chain, and each of the following
            things I am going to tell you is a link in that chain . . . .

                  ....

                   Link number four: He pointed the gun in the
            direction of another. There is some dispute – and we'll
            talk about it – as to whether or not he pointed the gun
            at [Compton], or if he pointed it at his T.V. The State
            submits that he pointed it at [Compton]. Defendant
            tells you he pointed it at his T.V. This is a very small


                                                                            A-1627-18T4
                                         8
            room. The T.V. is not far from [Compton] at all, and
            you'll see it in the picture.

                  The statute – there is a statute that says pointing
            a firearm at or in the direction of another human,
            whether or not you think it's loaded or unloaded – you
            can even think it's unloaded – it's a crime to do that.
            That's a crime. And you heard [the Captain] say that
            you never point a gun at something you don't intend to
            destroy. This is his supervisor, his instructor. He's
            heard this may times before.

      Defendant did not object to the state's closing arguments. Instead, the

defense contended that the shooting was an accident. In that regard, defense

counsel suggested that Compton may have loaded the Glock 27 while defendant

was sleeping.

      After hearing all of the evidence, including the testimony of defendant,

the jury in the second trial found defendant not guilty of murder and aggravated

manslaughter, but convicted him of the lesser-included offense of second-degree

reckless manslaughter.

                                       II.

      On this appeal, defendant presents four arguments for our consideration,

which he articulates as follows:

            POINT I – THE TRIAL COURT ERRONEOUSLY
            ALLOWED THE STATE TO INTRODUCE
            TESTIMONY THAT DEFENDANT CONTACTED
            HIS POLICE UNION REPRESENTATIVE, FROM

                                                                        A-1627-18T4
                                       9
            WHICH THE STATE IMPERMISSIBLY URGED
            THE JURY TO DRAW A NEGATIVE INFERENCE.

            POINT II – DEFENDANT WAS DENIED DUE
            PROCESS    AND   A    FAIR  TRIAL   BY
            INTRODUCTION OF EVIDENCE THAT HE
            COMMITTED THE UNCHARGED CRIME OF
            POINTING A FIREARM, WHICH WAS COMBINED
            WITH ARGUMENT THAT THE JURY COULD
            CONSIDER THIS CRIME AS PROOF THAT HE
            HAD THE REQUISITE MENS REA FOR
            MANSLAUGHTER.

            POINT III – THE ORDER REQUIRING
            DEFENDANT TO FORFEIT ALL PUBLIC
            EMPLOYMENT SHOULD BE VACATED BECAUSE
            THE DISQUALIFYING OFFENSE DID NOT
            INVOLVE OR TOUCH HIS EMPLOYMENT.

            POINT IV – THE SENTENCE IS EXCESSIVE
            BECAUSE IT WAS NOT BASED ON A PROPER
            FINDING AND WEIGHING OF AGGRAVATING
            AND MITIGATING FACTORS.

      A.    Testimony Regarding the Call to the Union Representative

      During the state's case, a police officer testified that he overheard

defendant call his union representative while defendant was in the backyard and

other officers were inside the home attending to Compton. In her closing, the

assistant prosecutor argued that defendant's call revealed his state of mind and

showed that he was not panicking or in shock but was acting for his own "self-

preservation." When defendant testified on direct examination, he explained


                                                                        A-1627-18T4
                                      10
that he understood that his union representative would hire a lawyer on his

behalf.

      Defendant now argues that allowing the testimony concerning his call to

his union representative violated his Fifth Amendment right against self-

incrimination because it related to hiring an attorney. In that regard, defendant

contends that "any reasonably-informed juror" would understand "that legal

representation for a police officer is obtained through that officer's membership

in the [Policemen's Benevolent Association] union." Defendant also asserts that

the error was compounded when the trial court failed to give a limiting

instruction.

      It is improper for the state to elicit testimony about, or comment on, a

defendant's request for an attorney to infer that defendant is guilty. State v.

Marshall, 123 N.J. 1, 124 (1991); United States v. Williams, 556 F.2d 65, 66

(D.C. Cir. 1977).    Accordingly, "[courts] should endeavor to excise any

reference to a criminal defendant's invocation of his right to counsel." State v.

Feaster, 156 N.J. 1, 75 (1998). When such references do not relate to the alleged

crime and are permitted only to explain why questioning ended, a trial court has

discretion to allow the testimony. Id. at 76. Nevertheless, in exercising that

discretion, the court should give a limiting instruction explaining that


                                                                         A-1627-18T4
                                      11
defendant's invocation of his right to counsel may not be used to infer guilt.

Ibid.

        The state did not violate defendant's Fifth or Sixth Amendment rights.

The testimony elicited by the state only referred to defendant calling his union

representative. There was no reference to defendant seeking legal counsel or to

hire an attorney. Instead, the state sought the testimony to show defendant's

state of mind; that is, he was not in shock or panicking, but was thinking about

how he should proceed. We reject defendant's unsupported contention that the

jury knew that the union representative would hire an attorney for defendant.

There was no support for such an inference in the limited testimony elicited from

the police officer who overheard defendant making the call to his union

representative.2

        The testimony about the union representative hiring an attorney came

from defendant on his direct examination by his own counsel. Accordingly,

defendant cannot seek reversal of the jury verdict on evidence he introduced.

See State v. Munafo, 222 N.J. 480, 487 (2015) (citing State v. A.R., 213 N.J.

542, 561 (2013)). Moreover, defendant did not ask for a limiting instruction


2
  The testimony also fell within an exception to the hearsay rule since it was
offered against defendant, a party opponent. See Griffin v. City of E. Orange,
225 N.J. 400, 419 (2016); N.J.R.E. 803(b)(1).
                                                                         A-1627-18T4
                                      12
concerning his testimony and, therefore, we discern no reversible error or plain

error. See State v. Anthony, 237 N.J. 213, 238 (2019); R. 2:10-2.

      Finally, we note that the reference to the call to the union representative

was relatively limited and was not a substantial part of the evidence presented

or arguments made at defendant's second trial. Instead, defendant's credibility

and state of mind were the central issues at trial. The trial record does not reflect

that the testimony about defendant calling his union representative was "clearly

capable of producing an unjust result." R. 2:10-2.

      B.     The Evidence that Defendant Pointed the Gun at Compton

      Defendant argues that the state introduced testimony that pointing a

firearm at another person constituted the crime of aggravated assault. Defendant

then argues that he was denied a fair trial because in its closing, the state argued

that defendant committed that crime, which formed a "link in the chain" showing

he acted with reckless indifference.         In making that argument, defendant

contends that the jury was never instructed on the elements of aggravated assault

and there was a prejudicial "blurring of legal principles" that denied defendant

due process.

      Defendant did not object to the testimony about pointing a firearm at

another person. Nor did defendant object to the state's arguments during its


                                                                             A-1627-18T4
                                        13
closing. Furthermore, defendant did not request a jury charge on aggravated

assault. Consequently, we review these issues for plain error. R. 2:10-2; State

v. Funderburg, 225 N.J. 66, 79 (2016); State v. Camacho, 218 N.J. 533, 554

(2014).

      In reviewing any claim of error relating to a jury charge, "[t]he charge

must be read as a whole in determining whether there was any error." State v.

Torres, 183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422

(1997)). In addition, "[t]he error must be considered in light of the entire charge

and must be evaluated in light 'of the overall strength of the State's case.'" State

v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289

(2006)). Furthermore, counsel's failure to object to jury instructions "gives rise

to a presumption that he did not view [the charge] as prejudicial to his client's

case." State v. McGraw, 129 N.J. 68, 80 (1992).

      The trial court correctly charged the jury on the elements of murder,

aggravated manslaughter, and reckless manslaughter as a lesser-included

offense. Accordingly, we discern no error in the jury instructions.

      Moreover, we discern no reversible error in the arguments made in the

state's closing. Read in full context, the state was not asking the jury to find

defendant guilty merely because he pointed a firearm.           Instead, the state


                                                                            A-1627-18T4
                                        14
contended that defendant acted with knowing recklessness in pointing a firearm

at Compton. Indeed, in making that argument, the state acknowledged that

defendant contended he did not point the firearm at Compton; rather, he pointed

the firearm at the screen on which the movie was playing. When considered in

full context, the state did not cross the boundary between a fair argument and

prosecutorial misconduct. See State v. R.B., 183 N.J. 308, 330 (2005); State v.

McGuire, 419 N.J. Super. 88, 139 (App. Div. 2011).

      C.     Forfeiture of Public Employment

      The Legislature has mandated that persons convicted of certain crimes

must forfeit public employment. N.J.S.A. 2C:51-2(a). Specifically, that statute

provides that any person holding public employment shall forfeit that position

if the person is (a) convicted of an offense involving dishonesty, (b) convicted

of a crime of the third-degree or higher, (c) convicted of an offense involving or

touching the public employment, or (d) the "Constitution so provides." Ibid.

      The forfeiture statute also mandates that if a person is convicted of an

offense involving or touching his public employment that person "shall be

forever disqualified" from holding any public office or position in New J ersey

or a political subdivision of the State. N.J.S.A. 2C:51-2(d). In that regard,

subsection (d) of the forfeiture statute states:


                                                                          A-1627-18T4
                                        15
            In addition to the punishment prescribed for the
            offense, and the forfeiture set forth in subsection [(a)]
            of N.J.S.A. 2C:51-2, any person convicted of an offense
            involving or touching his public office, position or
            employment shall be forever disqualified from holding
            any office or position of honor, trust or profit under this
            State or any of its administrative or political
            subdivisions. As used in this subsection "involving or
            touching on his public office, position or employment"
            means that the offense was related directly to the
            person's performance in, or circumstances flowing
            from, the specific public office, position or employment
            held by the person.

      In defendant's judgment of conviction, the trial court ordered: "Defendant

is to forfeit all public employment." Defendant contends that that ruling was

erroneous because his conviction did not involve or touch his publ ic

employment. We reject that argument as inconsistent with the plain language

of N.J.S.A. 2C:51-2(a)(1). Defendant was convicted of a second-degree offense

and under subsection (a)(1) his conviction was higher than a third-degree and,

therefore, he had to forfeit his public employment as a Deptford police officer.

In making his argument, defendant focused on N.J.S.A. 2C:51-2(a)(2), which

requires forfeiture if his conviction involved or touched on his public

employment as a police officer.

      We are constrained, however, to remand for clarification whether the

order covers future employment under N.J.S.A. 2C:51-2(d). The order entered,


                                                                          A-1627-18T4
                                       16
which is part of the judgment of conviction, is not clear on whether defendant is

disqualified from future public employment within this State. Moreover, the

court made no findings concerning whether his conviction involved or touched

on his public employment. 3

         Forfeiture   of   public   employment   is   a   collateral   consequence.

Accordingly, the lack of clarification in the trial court's judgment of conviction,

does not preclude a remand for further proceedings and clarification of this

issue.    See State v. Ercolano, 335 N.J. Super. 236, 243 (App. Div. 2000)

(explaining that forfeiture of a public office is a collateral consequenc e of a

sentence and can be imposed after sentencing); State v. Horton, 331 N.J. Super.

92, 98-99 (App. Div. 2000) (same). Indeed, the forfeiture statute itself allows

for an application to enter an order of forfeiture when the court inadvertently

fails to order forfeiture at the time of conviction or sentencing. N.J.S.A. 2C:51-

2(g). Accordingly, we remand the issue of whether defendant should be required

to be disqualified from future public employment to the trial court.




3
   We note that at sentencing the assistant prosecutor stated that she would
submit a forfeiture order to the court. We were not provided with such a separate
order as part of the record on this appeal. Instead, as previously noted, the only
forfeiture order in the record is contained in the judgment of conviction.
                                                                            A-1627-18T4
                                        17
      D.    The Sentence

      We review sentencing determinations under a deferential standard. State

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606

(2013)). We will not substitute our judgment for the judgment of the sentencing

court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we

will affirm a sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating 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. Miller, 237 N.J. 15, 28 (2019) (alteration in
            original) (quoting State v. Fuentes, 217 N.J. 57, 70
            (2014)).]

      Defendant was sentenced to seven years in prison subject to NERA. That

sentence fell within the mid-range of a conviction for a second-degree crime.

N.J.S.A. 2C:43-6(2) (setting forth a range of five to ten years of imprisonment

for a second-degree conviction).       Because defendant was convicted of

manslaughter, his sentence was subject to NERA. N.J.S.A. 2C:43-7.2(d)(2).




                                                                         A-1627-18T4
                                      18
      Defendant contends that the sentencing court erred in finding and

balancing the applicable aggravating and mitigating factors and the court did not

consider the real time consequences of a NERA sentence. The sentencing court

found aggravating factors one, the nature and circumstance of the offense and

the role of the actor therein, including whether or not it was committed in an

especially heinous, cruel, or depraved manner (N.J.S.A. 2C:44-1(a)(1)); factor

three, the risk of re-offense (N.J.S.A. 2C:44-1(a)(3)); and factor nine, the need

for deterrence (N.J.S.A. 2C:44-1(a)(9)).     The sentencing court also found

mitigating factors two, defendant did not contemplate that his conduct would

cause or threaten serious harm (N.J.S.A. 2C:44-1(b)(2)); factor four, there were

substantial grounds tending to excuse or justify defendant's conduct (N.J.S.A.

2C44-1(b)(4)); and factor seven, defendant had no prior criminal record

(N.J.S.A. 2C:44-1(b)(7)).

      Having reviewed the sentencing record, we find no error in the court's

determinations of the aggravating and mitigating factors except for aggravating

factor one. All the other aggravating and mitigating factors are supported by

facts in the record and the applicable law. Moreover, the sentencing court

appropriately considered but rejected defendant's argument for the application

of additional mitigating factors.


                                                                         A-1627-18T4
                                      19
      The sentencing court erred, however, in finding aggravating factor one.

Aggravating factor one calls on the court to consider the nature and

circumstances of the offense and the role of the actor in committing that offense,

including whether or not it was committed in an especially heinous, cruel or

deprived manner.     In finding that factor, the sentencing court focused on

defendant's actions after the shooting by not calling 911 and, instead, calling

another number, and in not attending to the injured victim. There was no

evidence presented at trial that any immediate medical attention to Compton

would have increased his chances of survival. More to the point, defendant was

convicted of reckless manslaughter, which focuses on the act causing the death;

here, that would be the shooting. Defendant's conduct following the shooting

does not go to any of the elements that constituted the crime for which he was

convicted. Accordingly, it was an error to apply aggravating factor one in

sentencing defendant.

      Consequently, we remand for a resentencing. In doing so, we note that

we find nothing shocking about a seven-year sentence imposed for the

conviction of second-degree reckless manslaughter. Nevertheless, the court will

need to rebalance the remaining aggravating factors against the mitigating




                                                                          A-1627-18T4
                                       20
factors it found and determine whether it will impose the same or a different

sentence.

      In summary, we affirm defendant's conviction.      We remand for two

limited purposes: (1) consideration of whether an order should be entered

barring defendant from future public employment; and (2) a rebalancing of the

aggravating and mitigating factors without consideration of aggravating factor

one and imposition of a new sentence.

      Affirmed in part, reversed and remanded in part.     We do not retain

jurisdiction.




                                                                       A-1627-18T4
                                     21
