                        NOT FOR PUBLICATION WITHOUT THE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 only binding 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-2317-14T3
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RASHAWN BOND,

        Defendant-Appellant.



              Argued September 26, 2017 - Decided October 18, 2017

              Before Judges Carroll, Leone and Mawla.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 10-03-0288.

              Stephen W. Kirsch, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Mr. Kirsch, of counsel and on the brief).

              Milton S. Leibowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Thomas K. Isenhour,
              Acting Union County Prosecutor, attorney; Mr.
              Leibowitz, of counsel and on the brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     A Union County grand jury returned Indictment No. 10-03-0288,

charging defendant Rashawn Bond and co-defendants Jamel Lewis,

Robert Harris, and Sharif Torres with first-degree kidnapping,

N.J.S.A.    2C:13-1(b)      (count      one);   two   counts   of   first-degree

robbery, N.J.S.A. 2C:15-1(a) (counts two and four); felony murder,

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

a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five);

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)

(count     six);    and     second-degree       aggravated     arson,     N.J.S.A.

2C:19-1(a) (count seven).

     Defendant      filed    a   severance      motion   seeking    to    be   tried

separately from his co-defendants.               The trial court granted the

motion after hearing arguments from counsel and testimony from

defendant,    who    asserted      an    affirmative     defense     of    duress.

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

kidnapping (count one), second-degree robbery (count two),1 felony

murder     (count    three),      and     a     lesser-included     offense        of

third-degree receiving stolen property.               Defendant was found not


1
  The judgment of conviction (JOC) mistakenly indicates that
defendant was convicted of first-degree robbery.     However, the
jury did not find defendant used a weapon during the robbery, and
the trial judge properly recognized at sentencing that defendant
was convicted of second-degree robbery. Accordingly, a remand is
necessary for correction of the JOC.

                                          2                                A-2317-14T3
guilty on the remaining counts.

     At   sentencing   on   November   20,    2014,    after    merging     the

convictions for receiving stolen property and robbery with the

felony murder conviction, the judge sentenced defendant to life

imprisonment,   with   an   eighty-five      percent   period    of     parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, for the felony murder.            The judge also imposed a

concurrent thirty-year prison term on the kidnapping conviction,

with an eighty-five percent period of parole ineligibility under

NERA.

     On appeal, defendant raises through counsel the following

arguments:

           POINT I

           THE JURY INSTRUCTION ON DURESS DID NOT
           PROPERLY EXPLAIN THE BURDEN OF PROOF, AND THE
           INSTRUCTIONS, WHEN VIEWED AS A WHOLE, WERE,
           AT BEST, CONTRADICTORY ON THE STATE'S DUTY TO
           PROVE THE ABSENCE OF DURESS BEFORE A
           CONVICTION COULD BE RETURNED ON ANY COUNT; THE
           INSTRUCTION ON EACH INDIVIDUAL COUNT LISTED
           ONLY A FINDING OF THE ELEMENTS OF THE CRIME
           AT ISSUE, NOT THE ABSENCE OF DURESS, AS A
           PREREQUISITE TO A CONVICTION.     (Not Raised
           Below)

           POINT II

           THE TRIAL COURT IMPROPERLY REFUSED TO ALLOW
           DEFENSE COUNSEL TO REFERENCE PRIOR CONSISTENT
           STATEMENTS OF DEFENDANT'S IN ORDER TO REBUT
           THE STATE'S REPEATED CHARGE THAT DEFENDANT WAS
           FABRICATING HIS TRIAL TESTIMONY.

                                   3                                  A-2317-14T3
         POINT III

         THE TRIAL JUDGE IMPROPERLY REFUSED TO SANITIZE
         DEFENDANT'S      PRIOR     CONVICTIONS     FOR
         WEAPONS-POSSESSION OFFENSES UNDER STATE V.
         BRUNSON, THEREBY SUBJECTING HIM TO IMPEACHMENT
         REGARDING THOSE OFFENSES WHEN HE TESTIFIED,
         WHICH INCLUDED THE PROSECUTOR'S DECISION TO
         INFORM THE JURY THAT THE WEAPON IN QUESTION
         WAS A GUN.

         POINT IV

         THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

         POINT V

         THE RECENT PUBLISHED APPELLATE DIVISION
         DECISION IN STATE V. VICTOR GONZALEZ MANDATES
         REVERSAL OF THE DEFENDANT'S CONVICTIONS FOR
         THE SAME REASON AS IN THAT CASE: THE REPEATED
         USE OF "AND/OR" LANGUAGE IN THE ACCOMPLICE-
         LIABILITY JURY INSTRUCTION COULD HAVE EASILY
         LED TO AN IMPROPER VERDICT FROM IMPROPER JURY
         DELIBERATION.

    In a pro se supplemental brief, defendant raises the following

arguments:

         POINT I

         PROSECUTORIAL MISCONDUCT

         A.    Knowing and Intentionally Withholding
         Exculpatory Discovery Pursuant to Rule 3:13-3
         in violation of Brady.

         B.   Prosecutor Breached Its Duty to Provide
         Discovery Pursuant to Rule 3:13-3(c)(7)
         Violation of Discovery Rule 3:13-3(b). (Not
         raised below)




                               4                          A-2317-14T3
          C.   Improperly Vouching for Its Key Witness'
          Credibility During Summation.    (Not raised
          below)

          D.   The Prosecutor Improperly Attacked the
          Defendant's    Credibility    During    Cross-
          Examination by Making Generic Accusations that
          Defendant Tailored His Trial Testimony After
          Being Present in the Courtroom and Hearing
          Prior Trial Testimony of State's Ballistics
          Expert Witness Michael Sandford In Violation
          of State v. Daniels.

          E.   The   Prosecutor   Improperly   Attacked
          Defendant's    Credibility   During    Cross-
          Examination by Making Generic Accusations of
          Tailoring   His    Testimony   to   Pre-Trial
          Discovery.

          F.   Making    Improper     Suggestions   and
          Insinuations   During   Cross-Examination  of
          Defendant's Key-Witness.

          G.   Improperly Stated in Summation That All
          of Defendant's Girlfriends Testified They Felt
          Threatened and Intimidated by the Defendant.

          POINT II

          THE TRIAL COURT FAILED TO PROVIDE THE JURY
          WITH CURATIVE INSTRUCTION PURSUANT TO N.J.R.E.
          105 IN VIOLATION OF THE DANIELS RULE. (Not
          raised below)

          POINT III

          CUMULATIVE ERROR DENIED DEFENDANT OF A FAIR
          TRIAL. (Not raised below)

    For   the     reasons   that   follow,   we   affirm   defendant's

conviction.     However, we remand for resentencing and correction

of the JOC.


                                   5                          A-2317-14T3
                                   I.

     A.    The State's Case

     On October 28, 2008, at 10:57 p.m., Elizabeth police found

the charred, lifeless body of Tanya Worthy in a white 2005 BMW

convertible that was engulfed in flames.         Investigation revealed

Worthy died from three gunshot wounds that were inflicted prior

to the fire.

     Raheem Jackson testified he was dating Worthy and lived with

her in Green Brook.   On October 28, 2008, Worthy left home in the

BMW around 10:00 a.m.     She told Jackson she was going to work and

then getting something to eat.     Worthy called Jackson around 5:00

p.m. from a restaurant because she was going to bring him home

some food.     At approximately 6:15 p.m., after she finished her

meal,   Worthy   placed   a   "to-go"   order.     Cell   phone   records

established that Worthy left the restaurant and drove to the Newark

home of defendant, who she was also dating.       Worthy never returned

to the restaurant to pick up her order.

     Cell phone records further revealed that: at approximately

7:30 p.m., Lewis, Harris, Torres, and Titus Lowery2 also arrived

at defendant's house; around 8:00 p.m., Lewis, Lowery, and Worthy

drove toward Green Brook, where Jackson and Worthy lived; after


2
  According to the State, "Titus Lowery was an unindicted co-
conspirator who died before trial."

                                    6                             A-2317-14T3
defendant borrowed a car from another girlfriend, Jasmine Campbell

Sykes, he drove with Harris and Torres toward Green Brook; and at

approximately 8:40 p.m., Lewis, Lowery, and Worthy arrived at

Worthy and Jackson's home on Thomas Court in Green Brook.

     Jackson heard his garage door open and observed Worthy's car

in the driveway.       Jackson observed someone get out of the car

wearing a hoodie and a mask.         The individual pointed a handgun at

Jackson and told him, "don't move."           Jackson could not see the

person's   face   or   tell   what    type   of   gun    he   held.     Jackson

immediately closed the garage door and ran inside.               Worthy's car

drove away, and Jackson summoned the police.

     Cell phone records around that time placed Lewis and Lowery

near a PSE&G electrical transmission tower on Route 22 in Green

Brook, across the highway from Thomas Court.              Defendant, Harris,

and Torres were approximately ten minutes from Thomas Court, in

Watchung; and Lewis and Harris were in constant communication with

each other.   Lewis and Lowery drove down Route 21 to Routes 1 and

9, toward the New Jersey Turnpike.

     At approximately 10:47 p.m. on October 28, 2008, the Elizabeth

police and fire departments were dispatched to Neck Lane in

Elizabeth,    where    they   found    Worthy's    BMW    convertible    fully

engulfed in flames.     Worthy's body was in the rear passenger seat,

face down, with three gunshot wounds.

                                       7                              A-2317-14T3
     Mark   Chai,   a   retired   former   fire   investigator    and   fire

official for the City of Elizabeth, was called as an expert in

arson investigation.      He testified he responded to Neck Lane at

approximately 10:58 p.m. on October 28, 2008, and participated in

the processing of the BMW.        Chai concluded the fire originated in

the rear passenger seat and "it was set on purpose."             The county

medical examiner determined Worthy died from the gunshot wounds,

and her body was burned after her death.

     Lieutenant Michael Sandford, supervisor of the Ballistics Lab

of the Union County Police Department, testified as an expert in

ballistics.    He explained that two projectiles were recovered from

the autopsy.     Both were ".38 caliber class," which meant that

"both were fired from a weapon that had a caliber in the .38

caliber class, which could be anything from a .38 Short through a

9 millimeter Luger, 357 Magnum, .38 Smith & Wesson."

     Cell phone records established that, after the fire was set,

Lewis and Lowery drove back to Newark.        Shakeerah Scott testified

she had a daughter with Lewis and, on the night of Worthy's death,

Lewis called her for a ride; she picked him up along with two

other individuals in Newark and drove them to get Lewis's car.

Sykes testified that she expected defendant to borrow her car for

a couple of hours, so she began calling him around 11:00 p.m., but

he did not answer.        Defendant called her back sometime after

                                      8                            A-2317-14T3
midnight from outside her house; he was alone and looked normal.

He handed her a black leather handbag and asked if she wanted it.

After defendant left, Sykes looked through the handbag and found

two business cards.     One was Worthy's business card from DeVry

University where she worked.

     In early December 2009, Detective Joe Vendas of the Union

County Prosecutor's Office, Homicide Task Force, spoke with Sykes

about Worthy.    Vendas asked Sykes about the handbag, which in the

interim she had given to her cousin.      Sometime later, defendant

told Sykes "if somebody comes to you, don't say nothing."

     Defendant's brother, Terron Billups, testified pursuant to a

plea deal and a cooperation agreement.    He stated that just prior

to Worthy's death, Lewis was spending time at defendant's house

"every day" or "every other day or so." He also saw Harris hanging

around defendant's house during that time.    Both he and defendant

were "affected very deeply" by the October 2007 murder of their

brother, Abdul Billups.

     Sean Williams also testified for the prosecution pursuant to

a plea deal.    Williams was an experienced car thief, who testified

that during a birthday party three days before the murder, which

defendant did not attend, Lewis asked him to steal a car for a

"jux" (i.e., a robbery).    Lewis was going to rob "one of Shawny's

[i.e., defendant's] bitches" for $200,000 and he needed a fast car

                                  9                         A-2317-14T3
for the job.    Lewis told Williams that defendant was going to pay

Williams for the car.     Lewis did not tell Williams who was going

to be involved in the robbery, or when or where it would take

place.     According to Williams, he refused the job because he did

not want to take the risk since he had just been released from

prison and his girlfriend was pregnant.

     Williams stated he knew, from growing up in Newark, that the

South Side Cartel was a subset of the Bloods gang and had a

reputation for violence.     While he and Lewis were in the Union

County Jail, Lewis and other members of the South Side Cartel

threatened him about his statements and testimony in this case.

On February 8, 2012, he wrote a letter to Vendas, which read:

            To Detective Joe Vendas From Sean L. Williams.
            I am writing in regards to the recorded
            statement I gave to you on December 24th, '09
            regarding a Mr. Jamel Lewis and Rashawn Bond.
            I'd like to inform you that any statement or
            testimony that I gave to the Union County
            Prosecutor's Office on December 24th, '09 is
            false. Any statement I, Sean Williams, made
            that is relative to the murder of Miss Tanya
            Worthy against the defendants Jamel Lewis and
            Rashawn Bond is false.

Williams claimed he wrote the letter at "a time when I was gettin'

threatened again."

     Vendas testified he was present at defendant's house on

January 16, 2009, when defendant was arrested on federal drug

charges.    While there, he seized defendant's cell phone, which was

                                 10                          A-2317-14T3
in plain view.     That day, defendant received a phone call from

Torres's phone, although Vendas did not know what the call was

about.

     Vendas interviewed defendant that same day.       Defendant denied

any involvement in the murder of Worthy, and initially denied

knowing her.    The interview was recorded and played for the jury.

     Vendas admitted the State had no evidence that defendant was

in Worthy's BMW or at her home the evening she was murdered. While

there was evidence that defendant picked up Sykes's car in Hillside

at approximately 8:30 p.m. that evening, Vendas admitted it would

have been very difficult, if not impossible, to drive from her

house in Hillside to Green Brook in approximately twenty minutes.

He acknowledged that although Williams testified he had been

recruited by Lewis to steal a car for the robbery, the car that

was recovered from Hansbury and Elizabeth Avenues in Newark on the

night of the murder, which defendant had allegedly driven and

abandoned, was stolen "well before" Lewis spoke with Williams.

Also, although Sykes testified she picked up defendant and only

one other person, Vendas conceded that the cell phone records

demonstrated that both Harris and Torres were with defendant at

the time.

     Vendas's    handwritten   notes   of   his   "pre-interview"   with

Williams, dated December 17, 2009, were produced to the defense

                                  11                           A-2317-14T3
during the trial.   Vendas testified he forgot he took those notes.

He wrote down that Williams told him that "Broke," meaning Lewis,

was associated with the 793 Bloods gang, which had an affiliation

with the South Side Cartel.   Williams also told him Lewis carried

a .357 revolver, which was consistent with the caliber of bullets

that killed Worthy; that "Broke and Dubird did Hinnant," i.e.,

that Lewis and Billups killed Jermaine Hinnant; and that somebody

named "Farad" killed defendant's brother Abdul Billups.

     B.    Defendant's Case

     Defendant testified at trial.   He did not dispute much of the

State's case; rather, he claimed he acted under duress.

     According to defendant, his brother Abdul had been a member

of the South Side Cartel, a gang with a reputation for violence

and killing people "they think are snitches or cooperating against

them[.]"   Lewis was defendant's cousin and belonged to the 793

gang, which was affiliated with the South Side Cartel.    Abdul was

murdered in October 2007.      About two weeks later, Lewis told

defendant "don't be mad at me, but your brother had to go, we

couldn't take no chances of taking us all down."   Lewis also said

he murdered defendant's friend of thirty years, Jermaine Hinnant,

in February 2007, because Hinnant gave a statement to police about

Lewis.

     Defendant did not associate with Lewis prior to Abdul's death,

                                12                         A-2317-14T3
but afterwards Lewis frequently came to his house.   Defendant did

not want Lewis around, but was scared to tell him to leave.

       In September 2008, Lewis suggested they rob Worthy and her

drug-dealer boyfriend, Jackson, who Lewis suspected kept a large

amount of cash in his home. Defendant did not want to get involved,

but he did not refuse because "[t]hat's like committing suicide,

man.   You know, you just don't tell a person like that."

       Defendant pretended to call Worthy three or four times so

Lewis would leave him alone.     However, Lewis persisted, and on

October 19 or 20, 2008, Lewis forced defendant to call Worthy from

his phone, "[b]ecause he thought I was bullshitting." Lewis pulled

out a .357 handgun, put it on his lap, and said "man, don't be

stupid like your brother, . . . don't make me kill you, call her."

Defendant called Worthy from Lewis's phone because "I was afraid

of him."

       Lewis repeatedly told defendant they were not going to hurt

Worthy. Lewis's plan was to have Worthy come to defendant's house,

pretend he was robbing defendant, take Worthy to Green Brook, and

have defendant follow in a stolen car.   He told defendant that his

friends Lowery, Harris, and Torres were also going be involved.

Lowery, Harris, and Torres called themselves "B-Block," and all

had reputations for violence.

       Defendant testified he "just went along with it" because

                                13                          A-2317-14T3
Lewis threatened to kill him if he did not participate.                     Also,

Lewis never asked him to pay Williams for a stolen car.             Defendant

explained that Lewis was a car thief himself, and would not need

Williams to steal a car for them.

       On October 27, 2008, defendant called Worthy several times

from Lewis's phone to see if she would come to his house, but she

was not available that day.          At Lewis's request, defendant picked

up Lowery, Torres, and Harris in Philadelphia and drove back to

Newark.

       The next day, Worthy began calling Lewis's phone, since

defendant had called her from that phone and told her it was his

new phone number.     Lewis did not answer the calls and told Lowery

to have defendant call Worthy using Lowery's phone so Lowery could

monitor the conversation.          Defendant called Worthy, and she agreed

to come to his home.

       At approximately 5:00 p.m., Lewis went to defendant's house

and   picked   up   Harris   and    Torres,   but   left   Lowery   to    ensure

defendant did not contact Worthy, who arrived there around 6:45

p.m. At approximately 7:15 p.m., defendant and Worthy went outside

to Worthy's car.     Lewis, Lowery, Harris, and Torres "came out from

the garage with two weapons" and forced them back into the house.

Harris and Torres took defendant into another room and pretended

to    rob   him.    Lewis    and    Lowery    initially    took   Worthy     into

                                       14                                A-2317-14T3
defendant's bedroom, and shortly thereafter they left the house

with Worthy and drove off in her car toward Green Brook.

       Defendant went into his bedroom, where he picked up Worthy's

"pocketbook and stuff."   Defendant, Torres, and Harris then drove

"the stolen car" to Hansbury and Elizabeth Avenues in Newark,

where defendant left the car and called Sykes to pick them up.

After dropping Sykes off at her house and giving her Worthy's

pocketbook, defendant intentionally drove the opposite direction

on Route 22 because he did not want to participate in the robbery.

Meanwhile, Lewis kept calling Harris from Green Brook to find out

where they were.    Harris had one of Worthy's cell phones, which

he discarded while they drove on Route 78.

       Shortly after 8:49 p.m., Lewis called Harris and said, "fuck

it, it's over with, everythin' over with, fuck it."       Defendant

turned the car around and headed back toward Newark to meet Lewis.

When they met on Route 78, Lewis was driving Worthy's car, and he

instructed defendant to follow him.    Lewis then stopped at a gas

station and purchased a five-gallon can of gasoline.     Defendant

was able to see Lowery in the car but could not see Worthy.

       Lewis drove to an area near the Budweiser brewery, where he

set Worthy's car on fire.   Lewis and Lowery then got into Sykes's

car.   While defendant was driving, Lewis put a .357 handgun to the

back of his head and said, "I should blow your fucking head off,

                                 15                        A-2317-14T3
where the fucking car at, where the stolen car, where the car at,

you fucked up everything, why the fuck you ain't follow me out

here."   Defendant stated he felt nervous and scared.

     Defendant drove back to Newark to retrieve the stolen car,

which was not there because the police had already picked it up.

Lewis became angry and yelled at defendant that he should have

killed him.    Lewis also stated, "I did all this shit for nothin',

I had to kill some fucking body for nothin', I didn't get nothin'

out of it."     It was at this point that defendant realized Lewis

had killed Worthy.    Harris and Torres stayed at defendant's home

that evening, and the next day defendant drove them back to

Philadelphia.

     Defendant did not report Lewis to the police for the murder

of Worthy because he feared recrimination from Lewis and the South

Side Cartel.    He admitted he lied to Vendas during his January 16,

2009 interview for the same reason.

     Newark Police Officer Derrick Clemons testified he responded

to Hansbury Avenue on a report of a stolen car shortly after 11:00

p.m. on October 28, 2008.     He observed the front windshield was

cracked and there was some ignition and steering column damage,

"which is pretty common with a vehicle being stolen," and the keys

were in the ignition.     The vehicle was stolen in New York City

sometime between September 30, 2008, and October 2, 2008, and the

                                 16                         A-2317-14T3
theft was reported on October 3, 2008.

                                      II.

     We first address defendant's arguments, raised for the first

time on appeal, that the jury instructions on duress and accomplice

liability were improper.   We begin by noting that when a defendant

fails to object to a jury charge at trial, we review for plain

error, and "disregard any alleged error 'unless it is of such a

nature as to have been clearly capable of producing an unjust

result.'"     State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting

R. 2:10-2).     Plain error, in the context of a jury charge, is

"[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and 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."     State v. Camacho, 218 N.J. 533, 554 (2014)

(alteration in original) (quoting State v. Adams, 194 N.J. 186,

207 (2008)).

     Of course, 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), and the effect of any error must be considered "in light

'of the overall strength of the State's case.'" State v. Walker,

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

                                 17                        A-2317-14T3
(2006)).   However, a defendant's attorney's failure to object to

jury instructions not only "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), but is also "considered

a waiver to object to the instruction on appeal."            State v.

Maloney, 216 N.J. 91, 104 (2013).

                                       A.

      In Point I of his counselled brief, defendant contends the

court committed plain error in its jury instruction on duress.        He

argues that the court's failures to "properly explain the burden

of proof with respect to duress, and to properly integrate the

concept of duress into the individual instructions on each of the

crimes charged, both individually and collectively denied [him]

the   thorough   and   complete    jury     instructions,   and   jury

deliberations, to which he was entitled."

      N.J.S.A. 2C:2-9, "Duress," provides in relevant part:

           (a). . . . it is an affirmative defense that
           the actor engaged in the conduct charged to
           constitute an offense because he was coerced
           to do so by the use of, or a threat to use,
           unlawful force against his person or the
           person of another, which a person of
           reasonable firmness in his situation would
           have been unable to resist.

Although a defendant initially must produce some evidence tending

to establish the affirmative defense of duress, the State must


                                  18                          A-2317-14T3
disprove the defense beyond a reasonable doubt.     State v. B.H.,

183 N.J. 171, 187-88 (2005); State v. Romano, 355 N.J. Super. 21,

35-36 (App. Div. 2002).

     The trial judge charged the jury on the affirmative defense

of duress in accordance with Model Jury Charge (Criminal), "Duress

(N.J.S.A. 2C:2-9)" (May 5, 1982).     In relevant part, the charge

provided:

            Now, in defense of the charge of robbery and
            kidnapping of Tanya Worthy and/or the robbery
            of Raheem Jackson and/or the arson of Tanya
            Worthy's vehicle and/or the weapons counts,
            the defendant contends that he is not guilty
            because at the time of the offense, he acted
            under duress. In other words, he was coerced
            to commit the offense due to the use of, or a
            threat to use, unlawful force against him or
            another person.

                 . . . .

            Before conduct, which would otherwise be
            criminal, can be excused on the ground that
            such conduct was a direct result of force or
            threats of force upon the defendant or
            another, the evidence must indicate that the
            following conditions existed at the time:

            (1) That there was use of, or threatened use
            of, unlawful force against the person of the
            defendant or another; and

            (2)   That the force, or threatened force,
            would be of such a type that a person of
            reasonable firmness in a similar situation
            would have been unable to resist.

                 . . . .


                                 19                         A-2317-14T3
           The State has the burden to prove beyond a
           reasonable doubt each element of those
           offenses, robbery and kidnapping, and all the
           elements of every charge in the indictment.
           If you find that the defendant acted under
           duress in the commission of either the robbery
           charges or the kidnapping charges, then in
           that event, he may not be found guilty of
           felony murder.

           The State also has the burden to disprove
           beyond a reasonable doubt the defense of
           duress. If you find that the State has proven
           beyond a reasonable doubt each element of the
           offenses charged and that the State has
           disproved beyond a reasonable doubt the
           defense of duress, you must find the defendant
           guilty. If, however, you determine that the
           State has failed to prove beyond a reasonable
           doubt one or more elements of the charges of
           robbery, kidnapping, arson or the weapons
           counts, or has failed to disprove the defense
           of duress, you must find him not guilty.

    Defendant     now   contends     the     model   charge    includes      the

preliminary legal decision reserved for the judge as to whether

there is sufficient evidence to support the defense at all.                   He

argues that, as a result, the model charge "badly commingles the

judge's job of determining the sufficiency of [] defendant's proofs

of duress – i.e., whether there is merely evidence sufficient to

instruct   the   jury   on   the   defense   –   with   the   jury's   job     of

determining whether the State has disproved the defense beyond a

reasonable doubt."      Defendant contends the duress charge should

mirror Model Jury Charge (Criminal), "Murder, Passion/Provocation

and Aggravated/Reckless Manslaughter" (Revised June 8, 2015),

                                     20                                A-2317-14T3
which defines the elements of the defense in conjunction with the

State's obligation to disprove at least one of them beyond a

reasonable doubt.       Defendant also argues the judge did not make

clear that the defense applied to all counts of the indictment.

We find these arguments unpersuasive.

      The model charge on duress informs the jury of those factors

that make the defense available in the first instance, as well as

those factors that make the defense unavailable.          The charge does

not imply that a defendant has any burden of proof and clearly

tells the jury that the State bears the burden of disproving the

elements of the defense beyond a reasonable doubt.             We see no

reason to adapt the model charge on duress to the format used in

the   model    charge   on   passion/provocation    manslaughter,   which

ultimately asks the jury to consider the factual underpinnings of

that defense, albeit later in the charge.          As the Court has said,

              insofar as consistent with and modified to
              meet the facts adduced at trial, model jury
              charges should be followed and read in their
              entirety to the jury. The process by which
              model jury charges are adopted in this State
              is comprehensive and thorough; our model jury
              charges   are   reviewed   and   refined   by
              experienced jurists and lawyers.

              [State v. R.B., 183 N.J. 308, 325 (2005).]

      Defendant's other claim, that the charge did not make clear

to the jurors they were to consider duress as to all counts of the


                                    21                           A-2317-14T3
indictment,   lacks   sufficient        merit   to   warrant   extensive

discussion.   R. 2:11-3(e)(2).     The judge listed all the charges

against defendant to which duress could provide a defense, and

clearly told the jury that, in addition to the burden to prove

beyond a reasonable doubt each element of each substantive offense,

the State also bore "the burden to disprove beyond a reasonable

doubt the defense of duress."

                                   B.

     Relying on State v. Gonzalez, 444 N.J. Super. 62 (App. Div.),

certif. denied, 226 N.J. 209 (2016), defendant contends for the

first time on appeal in Point V of his counselled brief that the

accomplice liability charge was plainly erroneous because the

court's repeated use of the phrase "and/or" could have confused

the jury and led to an improper verdict.         He argues that, as in

Gonzalez, the instruction "improperly allows the jury to conclude

that [he] is liable for crimes committed by the principal as long

as he aided or abetted one of those crimes."             Alternatively,

"different jurors could conclude that defendant aided or abetted

different crimes and find accomplice liability for all of those

crimes, or all of the crimes committed by the principal."         In the

context of the present case, we disagree.

     In Gonzalez, the defendant was charged as a co-conspirator

and accomplice with robbery and three counts of aggravated assault.

                                 22                             A-2317-14T3
Id. at 73.     He testified that he was at the scene of the fatal

shooting with two co-defendants, but that his participation was

the product of duress.     Ibid.    The panel criticized the use of the

imprecise "phrase 'and/or[.]'"       Id. at 71.   It found error in the

jury charge on conspiracy and accomplice liability because the

charge   referred   to   "robbery   and/or   aggravated   assault"   when

referring to the substantive crimes the co-defendants were alleged

to have committed for which the defendant was to be considered

accountable.   Id. at 73-75.   The panel explained the critical flaw

in the charge as follows:

           [T]he nature of the indictment required that
           the jury decide whether defendant conspired
           in or was an accomplice in the commission of
           a robbery, or an aggravated assault, or both.
           By     joining     (or    disjoining)    those
           considerations    with   "and/or"   the  judge
           conveyed to the jury that it could find
           defendant guilty of either substantive offense
           — which is accurate — but left open the
           possibility that some jurors could have found
           defendant conspired in or was an accomplice
           in the robbery but not the assault, while
           other jurors could have found he conspired in
           or was an accomplice in the assault but not
           the robbery. In short, these instructions did
           not   necessarily    require  that   the  jury
           unanimously conclude that defendant conspired
           to commit or was an accomplice in the same
           crime. Such a verdict cannot stand.

           The jury was also told that "to find the
           defendant guilty of committing the crimes of
           robbery and/or aggravated assault charges, the
           State must prove [among other things] that
           [the co-defendant] committed the crimes of

                                    23                          A-2317-14T3
            robbery and/or aggravated assault." Assuming
            the   "and/or"   in   this   instruction   was
            interpreted as being a disjunctive, it is
            entirely   possible   the  jury   could   have
            convicted defendant of both robbery and
            aggravated assault even if it found [the co-
            defendant] committed only one of those
            offenses, i.e., the jury was authorized, if
            it interpreted "and/or" in this instance as
            "or," to find defendant guilty of robbery
            because it was satisfied the State proved that
            [the co-defendant] committed an aggravated
            assault.

            [Id. at 75-77 (citations omitted).]

In denying certification, the Supreme Court expressly limited the

panel's holding "to the circumstances in which it was used in

th[at] case."     Gonzalez, supra, 226 N.J. at 209.

     In the present case, the judge charged the jury on accomplice

liability    in   accordance   with    Model   Jury   Charge   (Criminal),

"Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice"

(Revised 5/22/95):3

            In the alternative, the State alleges that the
            defendant is legally responsible for the
            criminal conduct of Jamel Lewis, Robert Harris
            and Sharif Torres in violation of the law,
            which reads in pertinent part as follows:

            A person is guilty of an offense if it is
            committed by his own conduct or the conduct
            of another person for which he is legally
            accountable or both.   A person is legally
            accountable for the conduct of another when

3
  This model jury charge, prior to the judge tailoring the charge
to the specific facts of the case, uses the phrase "and/or" five
times.

                                      24                          A-2317-14T3
he is an accomplice of such other person in
the commission of an offense. A person is an
accomplice of another in the commission of an
offense if, with the purpose of promoting or
facilitating the commission of the offense,
he (a) solicits such other person to commit
it, and/or (b) aids or agrees or attempts to
aid such other person in planning or
committing it.

This provision of the law means that not only
is the person who actually commits the
criminal act responsible for it, but one who
is legally accountable as an accomplice is
also responsible as if he committed the crime
himself.

In this case, the State alleges that the
defendant is guilty of the crimes committed
by Jamel Lewis, Robert Harris and Sharif
Torres because he acted as his or their
accomplice.   In order to find the defendant
guilty as an accomplice, the State must prove
beyond a reasonable doubt each of the
following elements: (1) That Jamel Lewis,
Robert Harris, and/or Sharif Torres committed
the crimes of robbery and kidnapping of Tanya
Worthy and/or robbery of Raheem Jackson,
and/or the arson of Ms. Worthy's vehicle;
. . . .   (2) That this defendant solicited
them or one of them to commit them, and/or did
aid or agree or attempt to aid him or them in
planning or committing the offenses; (3) That
this defendant's purpose was to promote or
facilitate the commission of the offenses; (4)
That this defendant possessed the criminal
state of mind that is required to be proved
against the person who actually committed the
act.

     . . . .

If you find that the defendant, with the
purpose of promoting or facilitating the
commission of the offenses of robbery and/or

                     25                          A-2317-14T3
kidnapping, and/or arson, solicited Jamel
Lewis, Robert Harris, and/or Sharif Torres to
commit it or them, and/or aided or agreed or
attempted to aid him or them in planning or
committing them, then you should consider him
as if he committed the crimes himself.    The
defendant's status as an accomplice must be
considered separately as to each charge.

     . . . .

In order to convict the defendant as an
accomplice to the crimes charged, you must
find that the defendant had the purpose to
participate in those particular crimes.     He
must act with the purpose of promoting or
facilitating the commission of the substantive
crimes with which he is charged.

It is not sufficient to prove only that the
defendant had knowledge that another person
was going to commit the crimes charged. The
State must prove that it was the defendant's
conscious object that the specific conduct
charged be committed.    In sum, in order to
find the defendant guilty as an accomplice of
committing   the   crimes   of   robbery   and
kidnapping of Tanya Worthy and/or the robbery
of Raheem Jackson, and/or the arson of Tanya
Worthy's vehicle, the State must prove each
of the following elements beyond a reasonable
doubt:   (1) That Jamel Lewis and/or Robert
Harris and/or Sharif Torres committed the
crimes of robbery and/or kidnapping of Tanya
Worthy and/or the robbery of Raheem Jackson
and/or the arson of Tanya Worthy's vehicle;
(2) That this defendant's purpose was to
promote or facilitate the commission of those
offenses; (3) That this defendant solicited
him or any one of them to commit them and/or
did aid or agree or attempt to aid them or any
one of them in planning or committing them;
(4) That this defendant possessed the criminal
state of mind that is required to be proved


                     26                          A-2317-14T3
           against the person who actually committed the
           criminal act.

           Again, you are reminded that you must consider
           the defendant's accomplice status separately
           as to each charge. So, you first have to go
           through the facts as you find them on the
           charge of Count One of the indictment, which
           is the kidnapping charge. Was the kidnapping
           charge committed by any one of them in the
           indictment. First you're going to look at him
           as a principal, whether he was involved as a
           principal, and then you'll look at his
           accomplice status. Was the crime committed.
           Did he participate in that. Did he agree, was
           that his purpose to have it done with any one
           of the people [] you find committed those
           offenses. And you have to do that with respect
           to each charge in the indictment[.]

           Now, if you find that the State has proved
           each and every one of the elements that I have
           explained to you beyond a reasonable doubt,
           then you must find the defendant guilty. If,
           on the other hand, you find that the State has
           failed to prove one or more of these elements
           beyond a reasonable doubt, then you must find
           the defendant not guilty.

           [(Emphasis added).]

     The court next reiterated the State's burden of proof and the

requirement that the jury's verdict must be unanimous.      It then

provided the duress charge and defined the elements of each offense

charged.

     We acknowledge that the court's accomplice liability charge

is markedly similar to that which the panel found unduly ambiguous

and hence defective in Gonzalez.      Nonetheless, under the facts


                                 27                         A-2317-14T3
presented, we conclude defendant has not carried his burden to

show that usage of the phrase "and/or" was "clearly capable of

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

     Here, in its accomplice liability instruction, the court used

"and/or" three ways.      First, the court instructed that the jury

must find that "defendant solicited [another defendant] to commit

[the crime] and/or did aid or agreed or attempted to aid [the

other defendant] in planning or committing [the crime.]"                 This

comports with the model charge, and is a correct recitation of the

law because either solicitation or aiding or both is sufficient

to establish accomplice liability.

     Second,   the    instruction    referenced     the   other   defendants

committing "the crimes of robbery and kidnapping of Tanya Worthy

and/or the robbery of Raheem Jackson, and/or the arson of Tanya

Worthy's vehicle[.]" The use of "and/or" regarding multiple crimes

similarly occurred in Gonzalez, where the defendant was convicted

on all counts.       Gonzalez, supra, 444 N.J. Super. at 68.           Here,

however, defendant was acquitted of robbing Jackson, the arson of

Worthy's car, and the weapons offenses.          Hence, there is no reason

to believe the jury convicted defendant of the kidnapping and

robbery of Worthy based on any of those other crimes.              Regarding

the court's instruction to consider whether defendant was an

accomplice in the "robbery and/or kidnapping of Tanya Worthy," we

                                    28                              A-2317-14T3
expect that the jury followed the court's repeated instructions

that "[t]he defendant's status as an accomplice must be considered

separately as to each charge."     See State v. Miller, 205 N.J. 109,

126   (2011).   Further,   the   court   went   on   to   illustrate   that

admonition by explaining how the jury could convict defendant of

kidnapping as an accomplice only if one of the other defendants

committed "the kidnapping charge" and if defendant participated

in or agreed to the kidnapping, adding, "[a]nd you have to do that

with respect to each charge in the indictment."

      Third, the court told the jury it had to find that "Jamel

Lewis, Robert Harris, and/or Sharif Torres" committed a crime, and

that defendant solicited "them or one of them" or aided "him or

them."   It is implausible the jury would convict defendant as an

accomplice if, e.g., Lewis and Harris committed the crime but

defendant aided Torres who did nothing.         Moreover, according to

defendant, Lewis, Harris, and Torres together carried out the

kidnapping and robbery of Worthy.        Thus, given the facts of this

case and the testimony at trial, defendant has not shown that the

judge's use of "and/or" in the context of the entire charge led

to an "ultimate determination of guilt or innocence . . . based

on speculation, misunderstanding, or confusion."          State v. Olivio,

123 N.J. 550, 568 (1991).    Accordingly, we find no plain error in

the jury instruction.

                                  29                              A-2317-14T3
                                  III.

     In Point II of his counselled brief, defendant contends the

court erred by refusing to admit his prior consistent statements

to rebut the State's argument that he fabricated his duress

defense.   We disagree.

     On January 16, 2009, defendant gave a recorded statement to

Vendas in which he denied any involvement in the kidnapping,

robbery, and murder of Worthy.        On November 15, 2012, defendant

testified at the hearing on the severance motion that he was

involved in those crimes; however, he acted under duress, as he

was afraid that Lewis or other members of the South Side Cartel

would kill him if he did not participate.

     At trial, defense counsel sought to cross-examine Vendas

about unrecorded statements defendant made to federal authorities

in May and June, 2009, which were allegedly consistent with his

duress defense.    Vendas was present when defendant made those

statements.   The trial judge conducted a N.J.R.E. 104 hearing

outside the presence of the jury, and concluded that the proposed

cross-examination was improper because the State had not yet made

a claim of "recent fabrication," and because there was some

confusion as to what was said by defendant, since there were no

recordings.



                                 30                          A-2317-14T3
     Defense counsel attempted to question defendant about his

alleged   statements   to   federal   authorities   on   his     direct

examination.   The judge sustained the State's objection, again

finding the questioning premature.    During cross-examination, the

State highlighted the discrepancies between defendant's trial

testimony, his 2009 recorded statement, and his testimony at the

hearing on the 2012 severance motion. On redirect, defense counsel

once more sought to elicit testimony about defendant's alleged

prior consistent statements to federal authorities.        The judge

sustained the State's objection, finding the State had not alleged

recent fabrication or improper influence on the issue of duress.

Defendant challenges these evidentiary rulings on appeal.

     "The general rule as to the admission or exclusion of evidence

is that '[c]onsiderable latitude is afforded a trial court in

determining whether to admit evidence, and that determination will

be reversed only if it constitutes an abuse of discretion.'" State

v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting State v. Feaster,

156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct.

1380, 149 L. Ed. 2d 306 (2001)).         "Under that standard, an

appellate court should not substitute its own judgment for that

of the trial court, unless 'the trial court's ruling "was so wide

of the mark that a manifest denial of justice resulted."'"        Ibid.

(quoting State v. Marerro, 148 N.J. 469, 484 (1997)).

                                31                             A-2317-14T3
      Generally, "[a] prior consistent statement offered to bolster

a witness' testimony is inadmissible."               Palmisano v. Pear, 306

N.J. Super. 395, 402 (App. Div. 1997); see also State v. Gomez,

246 N.J. Super. 209, 223 (App. Div. 1991).                "However, a prior

statement may be admitted in evidence to support the credibility

of a witness for the purpose of rebutting an expressed or implied

charge of recent fabrication."         Palmisano, supra, 306 N.J. Super.

at 402.

      N.J.R.E. 607 provides, in relevant part:           "A prior consistent

statement shall not be admitted to support the credibility of a

witness except to rebut an express or implied charge against the

witness of recent fabrication or of improper influence or motive

and   except   as   otherwise      provided   by   the   law   of   evidence."

Additionally, N.J.R.E. 803(a)(2) excludes from hearsay the prior

statement of a witness that "is consistent with the witness'

testimony and is offered to rebut an express or implied charge

against the witness of recent fabrication or improper influence

or motive[.]"

      Here,    while   it    is   certainly   true    that   the    State   used

defendant's January 2009 statement and 2012 testimony to impeach

his credibility, it did not allege that his claim of duress was a

recent fabrication.         On cross-examination, the prosecutor did not

adduce any evidence, express or implied, of a recent falsehood or

                                      32                               A-2317-14T3
change in defendant's testimony about his duress defense.              Rather,

the prosecutor highlighted defendant's admitted lies (that he did

not have a relationship with Worthy and was not involved in her

kidnapping, robbery, and murder), and other inconsistencies, to

demonstrate his testimony was not credible.               Since there was no

claim of recent fabrication, the trial court properly barred the

use of defendant's alleged prior consistent statements.

      Additionally,       defendant     cannot    show    prejudice.      Prior

consistent statements are most probative if they predate the motive

to fabricate.      State v. Moorer, 448 N.J. Super. 94, 110-11 (App.

Div. 2017).    The State did not allege and defendant has not shown

that his alleged statements to federal authorities in May and June

2009 predated defendant having a motive to fabricate concerning

the crimes; indeed, defendant was admittedly fabricating to avoid

liability for the crimes as early as January 2009.                  Moreover,

defendant was able to use his 2012 testimony to show that he had

testified similarly then and in his trial testimony.                Defendant

has not identified any alleged statements to federal authorities

in   2009   that   were    consistent      with   his   trial   testimony    but

unmentioned in his 2012 testimony.4


4
  For example, defendant does not allege his 2009 statements to
federal authorities mentioned Lewis's alleged possession of a .357
caliber gun, the tattoo, or the nicknames which we discuss in
Section IV.

                                      33                               A-2317-14T3
                                         IV.

     In   a   somewhat   similar    vein,       defendant   in    his   pro    se

supplemental brief contends the State improperly attacked his

credibility   by   accusing   him   of     tailoring    his      testimony,    in

violation of State v. Daniels, 182 N.J. 80 (2004).                  He further

contends the trial court compounded this error by failing to

provide the jury with an appropriate curative instruction.

     "[A] criminal defendant has the right to be present at trial,"

"to be confronted with the witnesses against him and to hear the

State's evidence," "to present witnesses and evidence in his

defense," and "to testify on his own behalf[.]"                     Id. at 97

(citations omitted).      "Prosecutorial comment suggesting that a

defendant tailored his testimony inverts those rights, permitting

the prosecutor to punish the defendant for exercising that which

the Constitution guarantees." Id. at 98. Such comments "undermine

the core principle of our criminal justice system--that a defendant

is entitled to a fair trial."       Ibid.

     "Allegations of tailoring are specific when there is evidence

in the record, which the prosecutor can identify, that supports

an inference of tailoring."        Ibid.       While generic accusations of

tailoring are prohibited, specific accusations are permitted in a

limited fashion.    Id. at 98-99.    In order to comment on, or cross-

examine a defendant about, specific accusations of tailoring,

                                    34                                  A-2317-14T3
there must be "evidence of tailoring, beyond the fact that the

defendant was simply present at the trial and heard the testimony

of other witnesses[.]"       Ibid.        The comments or questions "must be

based on the evidence in the record and the reasonable inferences

drawn therefrom."      Id. at 99.         "Moreover, the prosecutor may not

refer   explicitly     to   the    fact    that     the     defendant   was     in   the

courtroom or that he heard the testimony of other witnesses, and

was thus able to tailor his testimony."                Ibid.

       A curative instruction must be immediate and specific in

order to alleviate potential prejudice from inadmissible evidence

and its substance must be adequate.                 State v. Vallejo, 198 N.J.

122,    134-35   (2009).      If    a     party     fails    to   request     such   an

instruction,     the   decision     is     reviewed       under   the   plain    error

standard as to whether it was "clearly capable of producing an

unjust result."        R. 2:10-2; State v. Macon, 57 N.J. 325, 337

(1971).     "If the defendant does not object to [a] [curative

instruction] at the time it is given, there is a presumption that

the [curative instruction] was not error and was unlikely to

prejudice the defendant's case."                State v. Singleton, 211 N.J.

157, 182 (2012).       It is with these principles in mind that we

examine defendant's claims of error.

                                               A.

       In Point I(D) of his pro se supplemental brief, defendant

                                          35                                  A-2317-14T3
argues that the prosecutor committed misconduct by accusing him

of     tailoring     his   testimony    and    thereby     violated      Daniels.

Specifically, he contends the prosecutor improperly attacked his

credibility     by   making      "generic"   accusations   of    tailoring     his

testimony after hearing the testimony of the State's ballistics

expert, Lt. Sandford.         In Point II of his pro se brief, defendant

contends for the first time that the trial court erred in failing

to provide the jury with an appropriate curative instruction.

       In reviewing alleged acts of prosecutorial misconduct, we

inquire whether the conduct "was so egregious that it deprived the

defendant of a fair trial."             State v. Frost, 158 N.J. 76, 83

(1999); State v. Loftin, 146 N.J. 295, 386 (1996).               In determining

whether a defendant's right to a fair trial has been denied, we

consider several factors, such as whether the defense counsel made

a timely objection, whether the prosecution promptly withdrew the

improper remark, whether the trial judge ordered that the improper

remark be stricken, and whether the trial judge instructed the

jury    to   disregard     the   improper    remark.     Ibid.     "To   justify

reversal, the prosecutor's conduct must have been 'clearly and

unmistakably improper,' and must have substantially prejudiced the

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

merits of his defense."          State v. Timmendequas, 161 N.J. 515, 575

(1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d

                                       36                                A-2317-14T3
89 (2001).

    At   trial,      defendant   testified   he    "read   through    all   the

discovery,"    but      denied   looking   at     the   ballistics    report.

Subsequently, the following colloquy between the prosecutor and

defendant occurred:

          Q.   Nowhere in [the transcript of the pre-
          trial severance hearing] do you say anything
          about Jamel Lewis having a .357 gun in his
          lap; is that right?

          A.      No, it's nowhere in there.

          Q.   So, at no time in November of 2012, when
          you gave previous testimony, did you say
          anything about that; is that right?

          A.      No.

          Q.   That was new for this trial; is that
          right?

          A.      Yes, but it happened.

          Q.   Okay.   And that's after you've had the
          opportunity to look at everything; correct?

          A.      No.

          Q.   And you've heard testimony               about   the
          ballistics report; right?

          A.      Yes.

          Q.   You heard Lieutenant Sandford come in and
          testify about the ballistics report in this
          case?

          A.      Yes.



                                     37                               A-2317-14T3
Q.   And you testified that the bullets that
were found in Ms. Worthy were consistent with
a .357; is that right?

A.   Yes.

Q.   And you heard about that, and you heard
your lawyer asking questions about a .357;
correct?

A.   I heard that, yes.

Q.   So, for the first time last week and
today, you come up with two instances . . .
where you say that Jamel Lewis threatened you
with a .357; correct?

     . . . .

Q.   And you talk about a []9 millimeter and
a .45; correct?

A.   Yes.

Q.   So, you did talk about guns with Jamel
Lewis when you testified back in 2012?

A.   Yes.

Q.   But never about a .357; is that right?

A.   Yes.

Q.   And you never said anything in 2012 about
Jamel Lewis pointing a gun at your head and
saying he should kill you; did you?

A.   No, I didn't. Yes, I did, in, um -- right
after the murder, I said that. He put --

Q.   That he pointed a gun at your head in the
car, after you got into the car?

A.   Yes, I believe so, in the statement.


                     38                          A-2317-14T3
            [(Emphasis added).]

      Defendant did not object to this questioning or request a

curative instruction.          Nor did the court sua sponte provide a

specific curative instruction.             Rather, it provided essentially

the same "generic jury instruction" that the Court in Daniels,

supra, 182 N.J. at 101-02, determined was insufficient to cure the

prosecutor's impropriety.

      The prosecutor's allegations of tailoring here were specific,

not   generic.        The   prosecutor     specifically    pointed    out    the

differences between defendant's trial testimony and his prior

testimony, which supported an inference of tailoring.                See id. at

98.   Thus, the cross-examination was based on the evidence in the

record and the reasonable inferences drawn therefrom.                Id. at 99;

State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif.

denied, 165 N.J. 492 (2000).

      However, while the prosecutor had "reasonable grounds" for

posing     questions        during   cross-examination       that     impugned

defendant's credibility, she improperly referenced his attendance

at trial and his ability to hear Sandford's testimony.                      That

portion    of   the   cross-examination      was   in   direct   violation    of

Daniels.    Id. at 99-101 ("[A]t no time during cross-examination

may the prosecutor reference the defendant's attendance at trial

or his ability to hear the testimony of preceding witnesses.");

                                      39                               A-2317-14T3
State v. Feal, 194 N.J. 293, 308 (2008) (noting Daniels established

a bright-line rule).       Such comments and questions "are precisely

the type that a prosecutor is prohibited from making, even when

the   record   indicates   that   defendant    tailored    his   testimony."

Daniels, supra, 182 N.J. at 101.

      Nonetheless, in the context of this case, defendant has not

shown the prosecutor's brief reference to defendant having heard

Sandford's ballistics testimony was plain error, nor was the

court's failure to provide the jury with a more specific curative

instruction.      The prosecutor's improper reference did not cause

the jury to believe that defendant rather than Lewis possessed the

handgun.    Rather, the jury acquitted defendant of the weapons

offenses, and found the State failed to prove he was armed with a

deadly weapon during the robbery of Worthy.         See Feal, supra, 194

N.J. at 313 (finding no plain error from "the prosecutor's fleeting

references" in closing that the defendant changed his story "after

hearing all the witnesses testify").           Defendant has thus failed

to    establish    that    the    prosecutor's    remark    "substantially

prejudiced [his] fundamental right to have a jury fairly evaluate

the merits of his defense."       Timmendequas, supra, 161 N.J. at 575.

                                          B.

      In Point I(E) of his pro se supplemental brief, defendant

advances the additional claim that, on cross-examination, the

                                     40                             A-2317-14T3
prosecutor committed misconduct by making "generic" accusations

that he tailored his testimony to the pre-trial discovery.     Again,

we are not persuaded.

     Defendant cites three accusations of tailoring he asserts

were "generic" and therefore improper.      The first relates to

questions posed by the prosecutor about his brother, Abdul, having

a South Side Cartel tattoo:

          Q.   Now, in 2012, you also gave testimony
          about the South Side Cartel; correct?

          A.   Yes, ma'am.

          Q.   And you gave testimony about Amin Roland;
          is that right?

          A.   Yes.

          Q.   And then [defense counsel], while you
          were in court this time, asked you some more
          questions about the South Side Cartel; isn't
          that true?

          A.   Yes, ma'am.

          Q.   When you testified in 2012, you said not
          a word about tattoos; correct?

          A.   Uh --

          Q.   You didn't say anything about your
          brother having a South Side Cartel tattoo;
          right?

          A.   That question wasn't     asked.     That
          question wasn't asked.

          Q.   But after you got the packet in discovery
          with the South Side Cartel tattoo, then you

                               41                            A-2317-14T3
         testified in court here today -- or last week
         about the South Side Cartel tattoo; correct?

         A.   Excuse me. I can't answer that question
         with a yes or no.

         Q.   Okay, that's fine. Then you can't answer
         my questions.

    The second instance relates to questions about gang member

Lawrence "Larry" Parks:

         Q.   And one of the things you testified to
         before this jury is that Jamel Lewis was best
         friends with Lawrence Parks; is that right?

         A.   Yes.

         Q.   And then you were asked right after that,
         by [defense counsel], did you get as part of
         discovery in the trial pictures of members of
         the South Side Cartel; correct?

         A.   Yes.

         Q.   And that you had the opportunity to look
         at those pictures; right?

         A.   Yes.

         Q.   And one of those pictures in the chart
         that you got was Larry Parks; correct?

         A.   It was more than Larry Parks, yes.

         Q.   Yes, but one of the pictures --

         A.   Yes.

         Q.   -- was Larry Parks; correct?

         A.   Yes.



                              42                          A-2317-14T3
         Q.   And you didn't get that chart when you
         testified in November of 2012; correct?

         A.   No.

         Q.   Name me one time, Mr. Bond, in 2012 when
         you even mentioned the name of Larry Parks.

         . . . .

         A.   I can't answer that yes or no, judge.

         . . . .

         Q.   Well, isn't it fair to say that not once
         does Larry Parks' name come up?

         A.   I can't answer that yes or no.

         Q.   Okay.   Why can't you answer it?

         . . . .

         A.   Because of the simple fact that during
         my duress hearing, it wasn't based on the
         South Side Cartel.     Only thing my duress
         hearing was . . . to show enough for me to get
         a separate trial from the rest of my three
         codefendants. It wasn't in depth for me to
         go into all these other details[.]

    The final instance relates to questions about gang members'

nicknames:

         Q.   Okay.    And another thing you never
         mentioned in November of 2012, you never
         mention that Farad Roland's nickname was BU;
         correct?

         A.   No.
         Q.   And that was part of that chart; correct?

         A.   I grew up with all these guys, so, I mean
         --

                              43                          A-2317-14T3
          Q.   And you never mention that Amin Roland's
          nickname was Crack; correct?

          A.     No.

          Q.   But that was part of the chart that you
          got before trial; right?

          A.     Yes.

          Q.   And you never mentioned that Larry Parks'
          nickname was Big L; correct?

          A.     Yes.

          Q.   Because you never mentioned Larry Parks
          at all; right?   So, that was something new
          that you testified during the trial; correct?

          . . . .

          A.     I can't answer that.

     Defendant    contends    all    three   of     the    above-referenced

instances were improper "generic" accusations of tailoring his

testimony to the pre-trial discovery.        He asserts "there were no

legitimate grounds for which the prosecutor could infer [he] was

tailoring his testimony; other than to attack his credibility."

He further posits: "[t]he so-called inconsistencies relied upon

by the State simply did not exist and the State's inference that

[he] had tailored his testimony was patently unfair and deprive[d]

[him] of a fair trial."

     Contrary    to    defendant's   contentions,    the    allegations   of

tailoring were all specific, not generic, as they related to


                                     44                            A-2317-14T3
perceived inconsistencies between his trial testimony and his

pre-trial statements.         While defendant maintains there were no

true inconsistencies, at the very least, his trial testimony was

not consistent with his pre-trial statements and the prosecutor

was    permitted   to     cross-examine    him   about    those    differences.

Accordingly, any accusations of tailoring were specific rather

than generic, and hence not improper.             Furthermore, it does not

violate    Daniels   to    question   a    defendant     about    tailoring   his

testimony to the pre-trial discovery.

                                      V.

       In point III of his counselled brief, defendant contends the

court improperly refused to sanitize his prior convictions for

weapons possession offenses under State v. Brunson, 132 N.J. 377

(1993).    In Brunson, the Court modified its ruling in State v.

Sands,5 holding that

            in those cases in which a testifying defendant
            previously has been convicted of a crime that
            is the same or similar to the offense charged,
            the State may introduce evidence of the
            defendant's prior conviction limited to the
            degree of the crime and the date of the offense
            but excluding any evidence of the specific
            crime of which defendant was convicted. That
            method of impeachment will insure that a prior
            offender does not appear to the jury as a
            citizen    of   unassailable    veracity    and
            simultaneously will protect a defendant
            against the risk of impermissible use by the

5
    76 N.J. 127 (1978).

                                      45                                A-2317-14T3
          jury of prior-conviction evidence.         The
          balance struck adequately vindicates the
          State's interest in using the prior conviction
          to cast doubt on the defendant's credibility
          without    subjecting    defendant    to   the
          extraordinary prejudice that follows if the
          prior   crime   was   specifically  named   or
          described.

          [Brunson, supra, 132 N.J. at 391-92 (citation
          omitted).]

     When the convictions are dissimilar, they may be admitted

without limitation.     Id. at 394.       A court, however, has discretion

to consider sanitization of prior convictions in any circumstance

that poses a risk of undue prejudice to the defendant.                  State v.

Hamilton, 193 N.J. 255, 269 (2008).

     Under   Brunson,      supra,   132    N.J.   at     391-93,   evidence    of

defendant's prior weapons convictions should have been sanitized

because they were similar to the weapons offenses he faced in the

present case, and the evidence should have been limited to the

degree of the crimes and the date of the offenses.                 The court's

determination   at   the    Sands   hearing,      that    defendant's    weapons

convictions did not need to be sanitized because they were not too

remote, was erroneous.

     Nonetheless, we need not reverse on this basis.                      First,

defendant cannot show that the jury impermissibly used his prior

weapons possession convictions as evidence he had a propensity to

commit such offenses.      Indeed, the jury acquitted defendant of all

                                     46                                 A-2317-14T3
weapons offenses.

       Second, evidence of a defendant's prior weapons possession

convictions was admissible without sanitization under the "opening

the   door   doctrine."        See   Isko    v.   Planning    Bd.    of   Twp.   of

Livingston, 51 N.J. 162, 175 (1968) (affirming an order or judgment

on appeal if it is correct, even though the judge gave the wrong

or different reasons for it).           "The 'opening the door doctrine'

is    essentially   a   rule    of   expanded     relevancy    and    authorizes

admitting evidence which otherwise would have been irrelevant or

inadmissible in order to respond to (1) admissible evidence that

generates an issue, or (2) inadmissible evidence admitted by the

court over objection."         State v. James, 144 N.J. 538, 554 (1996).

It "allows a party to elicit otherwise inadmissible evidence when

the opposing party has made unfair prejudicial use of related

evidence."     Ibid.      It "operates to prevent a defendant from

successfully    excluding       from   the    prosecution's         case-in-chief

inadmissible evidence and then selectively introducing pieces of

this evidence for the defendant's own advantage, without allowing

the prosecution to place the evidence in its proper context."

Ibid.    Our Supreme Court has emphasized that the opening the door

doctrine can be used only "to prevent prejudice," and may not "be

subverted into a rule for [the] injection of prejudice."                     State

v. Vandeweaghe, 177 N.J. 229, 238 (2003) (citations omitted).

                                       47                                 A-2317-14T3
     During cross-examination of several State witnesses, defense

counsel elicited testimony that they had never seen defendant with

a weapon.     During his direct testimony, defendant stated he: hated

gangs; was not into robbery and had never robbed anybody; never

threatened anybody; was not a "tough guy;" and was afraid of Lewis

and the South Side Cartel.          That testimony was prejudicial to the

prosecution, as it suggested defendant had never carried a gun.

     Thus,     the    testimony     elicited        by       defendant       stating   or

suggesting that he had never carried a gun opened the door for the

State    to   demonstrate    he    had    carried        a    weapon    in    the   past.

Regardless of its propriety, defendant was not prejudiced by the

admission of the unsanitized evidence because he was acquitted of

the weapons possession offenses.

                                              VI.

     Defendant's remaining claims of prosecutorial misconduct and

cumulative error, as set forth in Points I(A), (B), (C), (F), (G)

and III of his pro se supplemental brief, lack sufficient merit

to warrant discussion in a written opinion.                           R. 2:11-3(e)(2).

Accordingly, we conclude by addressing the sentencing arguments

raised   in   Point    IV   of    his    counselled          brief.      Specifically,

defendant contends his sentence is excessive, that the court

engaged in impermissible "double counting," and that the court

should have found mitigating factor four (N.J.S.A. 2C:44-1(b)(4):

                                         48                                     A-2317-14T3
"There were substantial grounds tending to excuse or justify the

defendant's conduct, though failing to establish a defense[.]").

     Our review of sentencing determinations is limited.               State

v. Roth, 95 N.J. 334, 364-65 (1984).             We will not ordinarily

disturb a sentence imposed that is not manifestly excessive or

unduly punitive, does not constitute an abuse of discretion, and

does not shock the judicial conscience.          State v. O'Donnell, 117

N.J. 210, 215-16, 220 (1989).             In sentencing, the trial court

"first    must   identify   any   relevant   aggravating   and   mitigating

factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the

case."    State v. Case, 220 N.J. 49, 64 (2014).           The court must

then "determine which factors are supported by a preponderance of

[the] evidence, balance the relevant factors, and explain how it

arrives at the appropriate sentence."          O'Donnell, supra, 117 N.J.

at 215.    We are "bound to affirm a sentence, even if [we] would

have arrived at a different result, as long as the trial court

properly identifie[d] and balance[d] aggravating and mitigating

factors that [were] supported by competent credible evidence in

the record."     Ibid.

     In sentencing defendant, the judge found four aggravating

factors, namely, factor one (N.J.S.A. 2C:44-1(a)(1):             "The nature

and circumstances of the offense, and the role of the actor

therein, including whether or not it was committed in an especially

                                     49                             A-2317-14T3
heinous, cruel, or depraved manner"); two (N.J.S.A. 2C:44-1(a)(2):

"The gravity and seriousness of harm inflicted on the victim,

including whether or not the defendant knew or reasonably should

have   known    that   the   victim   of   the   offense    was   particularly

vulnerable or incapable of resistance due to advanced age, ill-

health, or extreme youth, or was for any other reason substantially

incapable      of   exercising   normal    physical   or    mental   power   of

resistance"); three (N.J.S.A. 2C:44-1(a)(3):               "The risk that the

defendant will commit another offense"); and nine (N.J.S.A. 2C:44-

1(a)(9):     "The need for deterring the defendant and others from

violating the law").

       In finding aggravating factors one and two applied, the judge

explained:

            I make those findings based upon the nature
            of the case and the defendant's role in it.
            Even if [] defendant's role was merely to act
            as the lure, to get Miss Worthy into this
            thing, that act, that involvement was the
            linchpin that brought everything together.
            The gravity of the harm inflicted upon [her].
            There are two predicate offenses for which []
            defendant was convicted that could form the
            basis for the felony murder, both the
            kidnapping and the second degree robbery. In
            either case, the sense of betrayal that Miss
            Worthy must have felt when Mr. Bond lured her
            into that in and of itself can be considered
            an aggravating factor. The fact that her body
            . . . [and] her car w[ere] burned in an effort
            to try to destroy evidence exhibits the
            heinous nature of all the actors in this case,
            and . . . I'm bound by the jury verdict.

                                      50                              A-2317-14T3
            There's no special verdict in this case that
            says the jury found that they were satisfied
            that this was duress on this count or that
            count.

     The     judge    did    not    find      any   mitigating       factors.       He

specifically found mitigating factor four was not appropriate,

stating:    "The     fact   that    a   defense      had    been    interposed     and,

according to [defense counsel], the jury verdict was based upon

that in part but ignored in part, I don't think that that forms

the basis for that mitigating factor."                     As a result, the judge

determined     that       "the   aggravating        factors     significantly       and

substantially outweigh [the] nonexistent mitigating factors."

     Defendant's argument as to mitigating factor four is not

persuasive.     The court considered defendant's duress argument at

sentencing and rejected it, just as the jury did.

     We conclude, however, that the sentencing court improperly

considered the arson in finding aggravating factor one.                    Defendant

was acquitted of arson.            Nevertheless, the court determined that

the arson "exhibit[ed] the heinous nature of all the actors in

this case," including defendant.              Because defendant was acquitted

of arson, the court should not have considered that evidence

against defendant in applying aggravating factor one.                      See State

v. Rogers, 236 N.J. Super. 378, 387 (App. Div. 1989) ("Although a

defendant    may     be   vicariously      accountable        for   the   crimes   his


                                         51                                  A-2317-14T3
accomplice    commits,    he     is    not   vicariously      accountable     for

aggravating factors that are not personal to him."), aff'd, 124

N.J. 113 (1991).

     Additionally, it appears that the court engaged in prohibited

"double counting" by considering "the gravity and seriousness of

harm inflicted on the victim" as an aggravating factor. Prohibited

"double counting" occurs when the court considers one of the

required elements of the offense charged as an aggravating factor.

See State v. Yarbough, 100 N.J. 627, 633 (1985) (finding facts

that the Legislature has incorporated into the Code as part of the

original   grading   of    the    offense    are   not   to    be   weighed   as

aggravating and mitigating factors to arrive at the appropriate

sentence), cert. denied, 475 U.S. 1014, 106 S. Ct.                  1193, 89 L.

Ed. 2d 308 (1986).

     "It is well-settled that where the death of any individual

is an element of the offense, that fact cannot be used as an

aggravating factor for sentencing purposes."             State v. Carey, 168

N.J. 413, 425 (2001).       Thus, because defendant was convicted of

felony-murder, "the gravity and seriousness of harm" inflicted on

the victim should not have been considered in determining the

aggravating factors. Id. at 426. Since the court erred in finding

aggravating    factor     two,    we    remand     for   reconsideration       of

defendant's sentence in the absence of that aggravating factor.

                                       52                              A-2317-14T3
      Defendant's conviction is affirmed.     We remand for the court

to   resentence   defendant   without   consideration   of   aggravating

factor two or the arson, and to correct the JOC to reflect

defendant's conviction for second-degree robbery on count two of

the indictment.




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