                                NOT FOR PUBLICATION WITHOUT THE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




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5023-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAMON MARTINEZ,

     Defendant-Appellant.
___________________________

                    Argued October 30, 2019 — Decided November 21, 2019

                    Before Judges Koblitz, Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 15-06-0548.

                    Steven E. Braun argued the cause for appellant.

                    Ali Y. Ozbek, Assistant Prosecutor, argued the cause
                    for respondent (Camelia M. Valdes, Passaic County
                    Prosecutor, attorney; Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Ramon Martinez appeals from a judgment of conviction for

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

2C:11-3(a); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2); and one count of third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d). He also challenges his sentence. We affirm.

      The following facts were adduced at trial. Late one evening in September

2014, Alex Mena decided to shoot pool with Nicholas Garcia, Daniel Aguilar,

and Joel "Aranita" Orton at a liquor store and bar in Paterson. When they

arrived, Mena sat at the counter and ordered a beer while awaiting his turn to

play pool. While Mena waited, Aguilar played a game of pool against defendant,

which led to an argument about the rules of the game. Defendant lost the game.

Mena and Aguilar did not know defendant prior to playing against him.

      When Mena played defendant, a second argument ensued, also regarding

the rules. As the argument continued, Mena told defendant he "was there just

to have fun, to play pool, not to look for any type of problems." The bar owner

noticed the argument was escalating and stopped the game.

      Afterwards, Mena joined Aguilar at the bar. Defendant then approached

Mena and Aguilar and began insulting Aguilar and challenging him to a fight.

Aguilar and Mena decided to leave, however, on their way out, Orlando Cordero,


                                                                        A-5023-17T1
                                      2
one of defendant's friends, punched Aguilar in the back of the head. Aguilar

went outside to fight Cordero, and defendant also left the bar and ran towards a

gas station across the street. Defendant returned and approached Aguilar. Mena

attempted to defend Aguilar. Defendant then approached Mena who testified he

attempted to "defend[] [him]self with [his foot.]"

      Defendant and Aguilar then fought. As defendant approached, Aguilar

testified he "grabbed [defendant] and knocked him to the floor."            While

defendant and Aguilar fought, Mena testified he felt his shirt was wet. He lifted

his shirt, touched his stomach and "[saw] that [his] intestines [were] hanging

out." He had been stabbed in the torso in three places. Mena ran away from the

scene. Aguilar also noticed that he "was full of blood" and was stabbed in two

places in the torso and once in the left leg.

      Garcia drove Mena and Aguilar to St. Joseph's hospital. Garcia testified

he saw defendant fighting Mena and then Aguilar. He then saw Mena holding

his stomach as if he was injured. At the hospital, both victims were taken to the

trauma unit and underwent emergency surgery. Five months later, Aguilar

underwent a second surgery to resect a portion of his intestine due to the earlier

injury. He testified he continues to suffer from back pain and "pain in [his]

intestines."


                                                                          A-5023-17T1
                                         3
     Both victims were shown photo arrays and identified defendant as the

person who stabbed them.

     On appeal, defendant raises the following arguments:

           POINT I – THE TRIAL COURT FAILED TO
           PROVIDE     A     PASSION/PROVOCATION
           INSTRUCTION IN REGARD TO ATTEMPTED
           MURDER (NOT RAISED BELOW).

           POINT II – DEFENDANT WAS NOT PROVIDED
           THE OPTION OF ELECTING WHETHER HE
           WANTED A JURY INSTRUCTION REGARDING
           HIS RIGHT TO REMAIN SILENT (NOT RAISED
           BELOW).

           POINT III – THE COURT SHOULD HAVE
           INSTRUCTED AS TO SIMPLE ASSAULT (NOT
           RAISED BELOW).

           POINT IV – PROSECUTORIAL MISCONDUCT
           OCCURRED WHEN THE TRIAL PROSECUTOR
           ENGAGED IN DISCOURSE WITH ONE OF THE
           JURORS DURING SUMMATION.

           POINT V – THE TRIAL PROSECUTOR
           COMMITTED PROSECUTORIAL MISCONDUCT
           WHEN HE COMMENTED ON MATTERS NOT IN
           EVIDENCE, AND HIS COMMENTS INFLAMED
           THE JURY.

           POINT VI – ADMITTING THE PHOTOGRAPH OF
           AGUILAR'S INFECTION WAS INFLAMMATORY
           AND PREJUDICIAL TO DEFENDANT, THEREBY
           REQUIRING REVERSAL OF THE CONVICTION.



                                                                  A-5023-17T1
                                     4
             POINT VII – THE TRIAL COURT SHOULD HAVE
             GRANTED THE DEFENSE MOTION AND
             ORDERED A NEW TRIAL BECAUSE THE
             VERDICT WAS AGAINST THE WEIGHT OF THE
             EVIDENCE AND DUE TO THE PREJUDICE TO
             DEFENDANT CAUSED BY THE USE OF THE
             TERMS "STABBING" AND "VICTIMS."

             POINT VIII – DEFENDANT WAS DENIED
             EFFECTIVE ASSISTANCE OF COUNSEL IN
             VIOLATION OF THE SIXTH AND FOURTEENTH
             AMENDMENTS OF THE UNITED STATES
             CONSTITUTION AND ARTICLE I, SECTION 10 OF
             THE NEW JERSEY CONSTITUTION.

             POINT IX – THE CUMULATIVE EFFECT OF THE
             ERRORS COMMITTED AT TRIAL REQUIRE
             REVERSAL OF THE CONVICTION.

             POINT X – THE SENTENCE IMPOSED WAS
             MANIFESTLY EXCESSIVE.

                                         I.

      Defendant argues the trial judge failed to sua sponte instruct the jury

regarding passion provocation on the attempted murder counts, or the lesser-

included charge of simple assault. He also argues the judge erred by charging

the jury regarding his right to remain silent without giving him the option to

waive the charge.

      "[T]he court has an 'independent duty . . . to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each case,


                                                                             A-5023-17T1
                                         5
irrespective of the particular language suggested by either party.'"        State v.

Baum, 224 N.J. 147, 159 (2016) (alteration in original) (quoting State v.

Reddish, 181 N.J. 553, 613 (2004)). When a defendant fails to object to an error

regarding jury charges, we review for plain error. State v. Funderburg, 225 N.J.

66, 79 (2016). "Under that standard, we disregard any alleged error 'unless it is

of such a nature as to have been clearly capable of producing an unjust result.'"

Ibid. (quoting R. 2:10-2). "The mere possibility of an unjust result is not enough.

To warrant reversal . . . an error at trial must be sufficient to raise 'a reasonable

doubt . . . as to whether the error led the jury to a result it otherwise might not

have reached.'" Ibid. (citation omitted) (quoting State v. Jenkins, 178 N.J. 347,

361 (2004)).

      N.J.S.A. 2C:1-8(e) states "[t]he court shall not charge the jury with respect

to an included offense unless there is a rational basis for a verdict convicting the

defendant of the included offense." "Thus, 'to justify a lesser included offense

instruction, a rational basis must exist in the evidence for a jury to acquit the

defendant of the greater offense as well as to convict the defendant of the lesser,

unindicted offense.'" Funderburg, 225 N.J. at 81 (quoting State v. Savage, 172

N.J. 374, 396 (2002)). However, "[w]hen the parties to a criminal proceeding

do not request that a lesser-included offense . . . be charged, the charge should


                                                                             A-5023-17T1
                                         6
be delivered to the jury only when there is 'obvious record support for such [a]

charge. . . .'" Ibid. (second alteration in original) (quoting State v. Powell, 84

N.J. 305, 319 (1980)).

      "A trial court should deliver the instruction sua sponte 'only where the

facts in evidence "clearly indicate" the appropriateness of that charge.'" Ibid.

(quoting Savage, 172 N.J. at 397). The trial court "need not 'scour the statutes

to determine if there are some uncharged offenses of which the defendant may

be guilty.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 118 (1994)).

      Our Supreme Court held "passion/provocation manslaughter is considered

a lesser-included offense of murder: the offense contains all the elements of

murder except that the presence of reasonable provocation, coupled with

defendant's impassioned actions, establish a lesser culpability."        State v.

Robinson, 136 N.J. 476, 482 (1994).             Attempted passion/provocation

manslaughter consists of four elements: "the provocation must be adequate; the

defendant must not have had time to cool off between the provocation and the

slaying; the provocation must have actually impassioned the defendant; and the

defendant must not have actually cooled off before the slaying." Funderburg,

225 N.J. at 80 (alterations in original) (quoting State v. Mauricio, 117 N.J. 402,




                                                                          A-5023-17T1
                                        7
411 (1990)).    "The first two criteria are objective, and the latter two are

subjective." Ibid. (citing Mauricio, 117 N.J. at 411).

      Thus, "[f]or a trial court to be required to charge a jury sua sponte on

attempted passion/provocation manslaughter, the court 'must find first that the

two objective elements of [the offense] are clearly indicated by the evidence.'"

Id. at 82 (second alteration in original) (quoting Robinson, 136 N.J. at 491). "If

they are, the two subjective elements should 'almost always be left for the jury.'"

Ibid. (quoting Robinson, 136 N.J. at 490).

      "To satisfy the first element of attempted passion/provocation

manslaughter, a jury must conclude that a reasonable person in the defendant's

position would have been provoked sufficiently to 'arouse the passions of an

ordinary man beyond the power of his control.'" Id. at 80 (quoting State v. King,

37 N.J. 285, 301-02 (1962)).      Thus, "the judge must determine whether a

reasonable fact-finder could conclude that the loss of self-control was a

reasonable reaction." State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001).

      Defendant argues he was entitled to a passion/provocation jury instruction

because the trial testimony revealed Mena tried to kick defendant and Aguilar ,

"grabbed defendant, lifted him up, and threw him onto the ground."              We

disagree.


                                                                           A-5023-17T1
                                        8
      Mena testified that when everyone exited the bar, defendant ran to a gas

station across the street before returning to the fight. Mena told defendant not

to hit Aguilar, at which point, defendant began approaching Mena instead. After

reviewing video footage of the fight, Mena testified as follows:

            Q.     Now having seen that, . . . did you attempt to
            strike [defendant]?

            A.     When I told him not to hit [Aguilar] . . . [h]e came
            towards me, I defended myself with my foot. We . . .
            started to have a struggle, we started to fight.

            Q.    Okay, . . . when you came at [defendant] . . . did
            you actually hit him with your foot?

            A.    I don't think so. I really don't.

            [(emphasis added).]

Mena's testimony demonstrated the attempt to kick defendant was an act of self-

defense.

      Similarly, the testimony that Aguilar picked defendant up and threw him

to the ground demonstrates an act of self-defense because defendant was

approaching Aguilar to fight him. Both Mena and Aguilar testified Aguilar

grabbed defendant's foot to "protect[] himself" after defendant began to

approach him, and Aguilar testified specifically that he "reacted in order to




                                                                          A-5023-17T1
                                        9
defend [him]self." Even defendant's friend, Cordero, testified defendant ended

up on the ground after defendant "came in to kick one of [the victims.]"

      As a general proposition, "[i]f the defendant creates the situation that

causes the passion/provocation it will not reduce murder to manslaughter."

Cannel, New Jersey Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:11-4

(2019). Furthermore, "the passion of an assailant aroused as the result of injuries

inflicted by his victim attempting to defend himself is, as a matter of law,

insufficient to mitigate the assailant's culpability for the resulting [attempted]

homicide." State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995). The

credible evidence proved defendant was the provocateur and the victims'

reactions were in self-defense. A lesser-included offense charge on attempted

passion/provocation manslaughter was not "clearly indicated."

      There was also no basis for the trial judge to sua sponte charge the jury on

simple assault, under N.J.S.A. 2C:12-1(a)(1) and N.J.S.A. 2C:12-1(a)(2), as a

lesser-included offense of aggravated assault.      "Simple assault is the least

serious of the [N.J.S.A.] 2C:12-1 offenses." Cannel, New Jersey Criminal Code

Annotated, cmt. 5 on N.J.S.A. 2C:12-1 (2019). Simple assault occurs when a

person "[n]egligently," rather than purposely or knowingly, "causes bodily




                                                                           A-5023-17T1
                                       10
injury to another with a deadly weapon." N.J.S.A. 2C:12-1(a)(2). Aggravated

assault under N.J.S.A. 2C:12-1(b)(2) excludes negligent acts.

      Defense counsel expressly advised the judge he did not seek the

instruction for simple assault. Moreover, the State called Dr. Mark Ingram, who

treated Mena and Aguilar on the night of the incident. Dr. Ingram testified Mena

had "[l]ow blood pressure, lack of blood flow to the brain and organs, [and was]

losing consciousness" when he arrived at the hospital. He stated Mena was

diagnosed with "multiple stab wounds to the abdomen and was in hemorrhagic

shock [and required emergency surgery] [t]o stop the bleeding and save his life."

During the surgery, Dr. Ingram observed a large quantity of blood in Mena's

abdominal cavity and noticed his "small intestine was lacerated and the blood

supply to the small intestine was also lacerated." Dr. Ingram also observed

extensive injury to several of Mena's organs caused by the stab wounds.

      Aguilar was diagnosed with a stab wound to the abdomen. Dr. Ingram

testified he observed nearly a pint of blood inside Aguilar's abdomen during the

surgery, a perforation of Aguilar's stomach and diaphragm, and a laceration of

the fatty tissue covering the peritoneal cavity. According to Dr. Ingram, the

stabbing also caused Aguilar's injuries and, if not treated for his injuries, "[h]e

would have bled to death and . . . died."


                                                                           A-5023-17T1
                                       11
       The evidence clearly proved Mena and Aguilar's injuries were the result

of a stabbing caused by a deadly weapon.          No evidence was presented to

establish defendant acted negligently. The record does not support defendant's

argument the jury would acquit him of the aggravated assault charge. The

evidence did not support charging "the least serious offense" under N.J.S.A.

2C:12-1(a) or (2).

       Although defendant did not object at trial, he now argues the judge erred

by instructing the jury on defendant's right to remain silent. He argues defense

counsel should have had the opportunity to request the jury instruction or to ask

it not be provided.

       "The no-adverse-inference jury instruction, or Carter1 charge, is grounded

on the Fifth Amendment privilege against self-incrimination."            State v.

Camacho, 218 N.J. 533, 542 (2014).             Accordingly, our Supreme Court

"consistently mandated the trial court's use of the Carter instruction when it is

requested by a defendant." Id. at 546. We review errors relating to the charge

as "a type of error that concerns the evidentiary value the jury may give to a

defendant's election not to testify on his or her own behalf." Id. at 551.




1
    Carter v. Kentucky, 450 U.S. 288 (1981).
                                                                             A-5023-17T1
                                       12
         Here, defendant elected not to testify. The judge advised him on three

occasions that if he decided not to testify, he would give the jury a no-adverse-

inference charge. Defendant acknowledged he understood his right to remain

silent and the instructions the judge would give to the jury if he exercised that

right.

         The trial judge instructed the jury as follows:

               As you know, [defendant] elected not to testify at
               trial. . . . You must not consider for any purpose or in
               any manner in arriving at your verdict the fact that
               [defendant] did not testify. The fact should not enter
               into your deliberations or discussions in any manner at
               any time. The defendant is entitled to have the jury
               consider all of the evidence presented at trial. He is
               presumed innocent whether or not he chooses to testify.

Defendant did not object to the charge.

         We reject defendant's argument that the judge was required to obtain his

consent to charge the jury regarding defendant's right not to testify. "Generally,

a defendant waives the right to contest an instruction on appeal if he does not

object to the instructions as required by Rule 1:7-2." State v. Adams, 194 N.J.

186, 206-07 (2008). "Where there is a failure to object, it may be presumed that

the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35

(App. Div. 2003); see also State v. White, 326 N.J. Super. 304, 315 (App. Div.

1999).

                                                                          A-5023-17T1
                                          13
       In State v. McNeil, we held a defendant "ha[s] no constitutional right to

resist the [no-adverse-inference] instruction." 164 N.J. Super. 27, 31 (App. Div.

1978); see also State v. Lynch, 177 N.J. Super. 107, 115 (App. Div. 1981)

(concluding when a defendant did not have the opportunity to consent to the

instruction, "inclusion of the charge does not violate [the] defendant's

constitutional rights."). For these reasons, the jury instructions were not a basis

for reversal.

                                        II.

       Defendant argues the prosecutor engaged in misconduct when he spoke

directly with a juror and argued facts not in evidence during summation, by

referencing the victims' families, who did not testify at trial. The prosecutor's

improper comments did not constitute reversible error.

       "'[P]rosecutorial misconduct is not grounds for reversal of a criminal

conviction unless the conduct was so egregious as to deprive defendant of a fair

trial.'"   State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v.

Papasavvas (I), 163 N.J. 565, 625 (2000)). "Thus, '[t]o justify reversal, the

prosecutor's conduct must have been "clearly and unmistakably improper," and

must have substantially prejudiced defendant's fundamental right to have a jury




                                                                           A-5023-17T1
                                       14
fairly evaluate the merits of his defense.'" Id. at 438 (alteration in original)

(quoting Papasavvas, 163 N.J. at 625).

            An appellate court, in reviewing the trial record to
            determine whether the conduct of the prosecutor
            exceeded these bounds, must consider several factors,
            including whether "timely and proper objections" were
            raised, whether the offending remarks "were withdrawn
            promptly," and whether the trial court struck the
            remarks and provided appropriate instructions to the
            jury. Additionally, an appellate court will consider
            whether the offending remarks were prompted by
            comments in the summation of defense counsel. If,
            after completing such a review, it is apparent to the
            appellate court that the remarks were sufficiently
            egregious, a new trial is appropriate, even in the face of
            overwhelming evidence that a defendant may, in fact,
            be guilty. In contrast, if the prosecutorial remarks were
            not "so egregious that [they] deprived the defendant of
            a fair trial[,]" reversal is inappropriate.

            [State v. Smith, 212 N.J. 365, 403-04 (2012)
            (alterations in original) (citations omitted) (quoting
            State v. Frost, 158 N.J. 76, 83 (1999)).]

      Here, the prosecutor played the video of the fight for the jury during his

summation, when the following colloquy ensued:

            [PROSECUTOR:]         Watch where [defendant] is
            swinging the knife or swinging whatever he has right
            there. Pay attention. Where is he swinging? Where is
            he swinging, ladies and gentlemen? You saw that?
            You see it again? You saw it? Did you catch it?

            [JUROR:] Can you do it again? I didn't see it.


                                                                         A-5023-17T1
                                       15
            [PROSECUTOR:] I'll back it up, I'll back it up a little
            bit. You know what? I'll do you one better. There's
            one, there it is again. Did you catch it?

            [JUROR:] No.

            [PROSECUTOR:] I'll back it up again.

      Immediately afterwards, defense counsel objected, and during a sidebar

conversation argued the prosecutor was "engaging the jury [in] questioning and

answering." The following exchange occurred during sidebar:

            THE COURT: I think it's inappropriate. You should
            simply go right through without any comment because
            my instructions will be to them you can't rely on
            anything more, this is just not evidence, so they should
            not be focusing on this . . .

            [PROSECUTOR:] Yes.

            [DEFENSE COUNSEL:] Now I want to reserve my
            time for surrebuttal because of what occurred.

            [PROSECUTOR:] Surrebuttal?

            THE COURT: No, I think that the jurors don't even
            know that there was an objection.

      Later in his summation the prosecutor challenged the character witnesses

who testified on defendant's behalf as follows:

                  Now, there's a couple of things that came up in
            terms of – in terms of the people that talked about
            [defendant]. . . .


                                                                       A-5023-17T1
                                      16
                   Listen, we all grab [twenty] of our best friends,
            [twenty] of your cousins and relatives, I guarantee you
            they're all going to say the same thing about you, that
            you're one great guy, that you're one great lady, that
            you're a hell of a person. Why? Because that's how
            they know you because when you're with your friends
            and your family you're going to be good to them.
            You're not going to treat your friends and family wrong,
            so of course they're going to be here and every one of
            their experiences they've ever had with [defendant] is
            going to be great because that's all they ever see from
            him because he's their friend . . . but you know who
            would come in here and not have similar sentiments
            about [defendant]? Alex Mena's family, Alex Mena's
            wife and kids. They'll come in here and tell you a
            different story. They'll tell you — they'll paint a
            different picture about [defendant]. They'll tell you
            about how this person almost took the life of their loved
            one. That's what they'll tell you. Same thing for Danny
            Aguilar. His friends and family will come in and tell
            you the same thing, that they almost lost their friend.

            [(emphasis added).]

      Following these comments, defense counsel objected and at sidebar stated

"you can't argue to a jury speculative or conjectural testimony." The trial judge

agreed and gave the jury the following curative instruction:

                   Ladies and gentlemen, with regard to [the
            prosecutor's] comment as to what a family member of
            the victims would feel about a defendant, that I have
            stricken from the record. That should not go into, in
            any shape or form, . . . your discussions and I'm going
            to also remind you in my general instructions . . . that
            any comments by either [c]ounsel during openings or


                                                                         A-5023-17T1
                                      17
            closings are not evidence, they are simply arguments,
            all right?

      Our Supreme Court has held "[t]o address jurors individually or by name

is generally disapproved and correctly so." Aponte v. State, 30 N.J. 441, 448

(1959); see also Morais, 359 N.J. Super. at 131 (finding reference to a "juror

individually by name, experience[,] or background" improper). However, "a

'fleeting and isolated' remark is not grounds for reversal." State v. Gorthy, 226

N.J. 516, 540 (2016) (quoting State v. Watson, 224 N.J. Super. 354, 362 (App.

Div. 1988)).

      Here, we note it was not the prosecutor who commenced the interaction

with the juror, but the juror who made a statement, which prompted the

prosecutor's improper response. Regardless, the record does not reveal how the

prosecutor's fleeting comment that he would "back . . . up" the video prejudiced

or deprived defendant of a fair trial.

      Courts consistently recognize "prosecutors are afforded considerable

leeway in their closing arguments," however "prosecutors should not make

inaccurate legal or factual assertions during a trial and . . . they must confine

their comments to evidence revealed during the trial and reasonable inferences

to be drawn from that evidence." Smith, 167 N.J. at 177-78.



                                                                         A-5023-17T1
                                         18
      Here, the prosecutor undisputedly erred when he commented on facts not

in evidence. However, defense counsel promptly objected to the prosecutor's

comments, and the trial judge struck the prosecutor's comments and issued a

curative instruction to the jury, advising it could not consider the prosecutor's

comments regarding the victims' families. The timely objection and curative

instruction "cured any potential harm caused by [the] speculative remarks."

State v. McGuire, 419 N.J. Super. 88, 149 (App. Div. 2011).

                                       III.

      Defendant argues the State admitted a photograph of Aguilar's injuries,

which also showed the wound was infected. He argues the image of the infection

was irrelevant and inflamed the jury. Defendant argues his motion for a new

trial should have been granted because (1) the verdict was against the weight of

the evidence and (2) the terms "stabbing" and "victims" were used, implying his

guilt and depriving him of a fair trial. He asserts he is entitled to a new trial

because Dr. Ingram had no personal knowledge of how the victims were injured,

yet the State improperly used his testimony to establish "an evidentiary nexus

between the issue of causation and whether defendant caused the medical

injuries [Dr. Ingram] observed."




                                                                         A-5023-17T1
                                      19
      "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion." State v. Kuropchak,

221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)).

Under that standard, "[c]onsiderable latitude is afforded a trial court in

determining whether to admit evidence," and "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.

(alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998); State v.

Marrero, 148 N.J. 469, 484 (1997)). To exclude photographic evidence on

grounds of prejudice, "the danger of undue prejudice must outweigh probative

value so as to divert jurors 'from a reasonable and fair evaluation of the basic

issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting

State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div. 1988)).

      Over defendant's objection, the trial judge concluded the photographic

evidence was probative because it showed the extent of Aguilar's injuries and

was relevant to determining whether he suffered bodily injury by a deadly

weapon, an element of aggravated assault, N.J.S.A. 2C:12-1(b)(2). The trial

judge did not abuse his discretion.

      Rule 3:20-1, states:


                                                                           A-5023-17T1
                                       20
             The trial judge on defendant's motion may grant the
             defendant a new trial if required in the interest of
             justice. . . . . The trial judge shall not, however, set
             aside the verdict of the jury as against the weight of the
             evidence unless, having given due regard to the
             opportunity of the jury to pass upon the credibility of
             the witnesses, it clearly and convincingly appears that
             there was a manifest denial of justice under the law.

      "[A] motion for a new trial is addressed to the sound discretion of the trial

judge, and the exercise of that discretion will not be interfered with on appeal

unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137

(App. Div. 2000). Our review "is limited to a determination of 'whether the

findings made by the trial court could reasonably have been reached on

sufficient credible evidence in the record.'" State v. Brooks, 366 N.J. Super.

447, 454 (App. Div. 2004) (quoting Russo, 333 N.J. Super. at 137).

      Defendant argues the trial judge committed reversible error in allowing

the prosecutor and witnesses to use the terms "victims" and "stabbing" when

describing the incident. He argues these terms were highly prejudicial and

tainted the presumption of innocence by placing an "unfair suggestion of guilt

. . . into the minds of the jurors."

      The trial judge addressed this argument in evaluating defendant's motion

for a new trial and concluded as follows:



                                                                           A-5023-17T1
                                        21
                  The State submits and the [c]ourt concurs that
           such an argument has no merit. . . . . There is no basis
           to suggest that the wounds that both victims suffered
           were self-inflicted. On the contrary, it is undisputed
           that both . . . Aguilar and Mena were stabbed. As such,
           referring to Aguilar and Mena as victims and referring
           to the incident as stabbing was appropriate and in no
           way contaminated the jury from the presumption of
           innocence. Throughout the trial it was known and
           undisputed that Aguilar and Mena were stabbed.

                  The issue which needed to be addressed was
           whether the person who stabbed them was the
           defendant. At no point during the trial [was there] a
           deviation from the fundamental principle of the
           criminal justice system that the State needs to prove and
           has the ultimate burden to prove beyond a reasonable
           doubt that the victims were stabbed and that the
           defendant was the one that did the stabbing. Referring
           to Mena and Aguilar as victims did not change the
           burden that was placed on the State nor did referring
           [to] the incident as a stabbing shift that burden.

                 ....

                  In short, the [c]ourt is clearly convinced that any
           reference during the trial to either Aguilar or Mena or
           both as victim or victims or the injuries they suffered
           as a result of stabbing was appropriate and not
           prejudicial at all. It neither contaminated the jury in
           any manner nor shifted the burden from the State to the
           defendant. Furthermore, its use did not result in
           defendant suffering a manifest denial of justice by the
           jury's verdict.

     The trial judge also rejected defendant's argument regarding Dr. Ingram's

testimony. The judge stated:

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                                      22
            The [c]ourt finds this argument is without merit. The
            defense incorrectly defines the testimony presented by
            Dr. Ingram in this matter and the manner in which it
            was used by the State.

                    Dr. Ingram was called in as an expert witness in
            this trial to identify whether the injuries suffered by the
            victims could rise to the level of being serious bodily
            injury. Dr. Ingram's testimony cannot be characterized
            as expert testimony establishing the identity of an
            individual who had committed the stabbing upon
            Aguilar and Mena. Instead, Dr. Ingram's testimony
            focused on the injuries suffered by the victims.

                  ....

                  The [c]ourt finds that the testimony provided by
            Dr. Ingram was utilized by the State to satisfy the injury
            element of the charges against the defendant. . . . There
            is nothing in the evidence to suggest that Dr. Ingram's
            testimony was used to identify the actor who caused
            these injuries. In fact, during cross-examination when
            defendant's former counsel asked Dr. Ingram whether
            he knew who caused the injuries Dr. Ingram responded
            that he did not.

      The trial judge did not abuse his discretion in denying the motion for a

new trial. We affirm for the reasons expressed in the judge's comprehensive and

well-reasoned decision.

                                       IV.

      Defendant argues he was denied effective assistance of trial counsel

because counsel: (1) failed to request the lesser-included simple assault charge;


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                                       23
(2) failed to file a motion in limine to prevent the prosecution from using the

words "stabbing," "knife," and "victims;" (3) wanted to withdraw because he

was not being paid; and (4) failed to bar Dr. Ingram's testimony. Defendant

asserts these cumulative errors justify reversal.

      "'Our courts have expressed a general policy against entertaining

ineffective-assistance of counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record.'" State v.

Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460

(1992)). "However, when the trial itself provides an adequately developed

record upon which to evaluate defendant's claims, appellate courts may consider

the issue on direct appeal." Ibid.

      A defendant seeking to vacate a conviction on the grounds of ineffective

assistance of counsel must show that: (1) counsel's performance was deficient;

and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542

(2013). "A deficient performance means that 'counsel made errors so serious

that counsel was not functioning as the "counsel" guaranteed the defendant by

the Sixth Amendment.'" Ibid. (quoting Strickland v. Washington, 466 U.S. 668,

687 (1984)). Moreover, proof of prejudice must create "a reasonable probability




                                                                        A-5023-17T1
                                       24
that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 694.

      Judicial scrutiny of counsel's performance is highly deferential.

"[C]ounsel is strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment."

Id. at 690. The strong presumption counsel exercised sound trial strategy is

grounded in "the inherent difficulties in evaluating a defense counsel's tactical

decisions from his or her perspective during trial. . . ." State v. Arthur, 184 N.J.

307, 319 (2005).

      We do not address defendant's claim defense counsel and defendant's

family were at odds because of defense counsel's desire to withdraw from the

case due to lack of payment. There is no evidence in the record to enable us to

effectively evaluate this claim and it is better presented on a petition for post-

conviction relief.

      We reject defendant's claim that the use of the terms "knife," "victim,"

and "stabbing" during the trial was evidence of ineffective assistance of counsel.

The credible evidence presented at trial demonstrated Mena and Aguilar were

the victims of a stabbing. Moreover, defense counsel did object to the use of




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                                        25
the words "victim" and "stabbing" at trial, his objection was overruled, and as

we noted, the trial judge's decision was not an abuse of discretion.

      Defense counsel was not ineffective for failing to exclude Dr. Ingram's

testimony. Although counsel initially objected, but then withdrew the objection,

the doctor's testimony was entirely appropriate expert testimony explaining the

nature of the victims' injuries. Moreover, the trial judge explained why the

failure to move to exclude the doctor's testimony prior to trial did not constitute

ineffective assistance of counsel. He stated:

                  The [c]ourt . . . characterizes defense counsel's
            decision to bring up the substance of these motions
            during trial rather than pre-trial as merely trial strategy.
            Even if these motions were successful[,] such limiting
            of testimony or the use of the phrase would not have
            changed the ultimate outcome of the trial based on the
            other evidence that was provided in this case.

                  The jury would still have been able to see both
            videos . . . [showing] the defendant walking to his car
            and returning. What the State would have been
            permitted to argue was the knife that was used in this
            case. [The jury] would have seen the defendant thrust
            at both victims in the area where they were found to
            have been stabbed.

                   ....

                  Also, the jury would have heard the testimony of
            Dr. Ingram describing the steps he took to repair the
            damage that was caused. Lastly, they would have heard


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                                       26
            Dr. Ingram opine that but for his intervention both
            victims would have died.

                   With the totality of the evidence presented at
            trial, even with the motion to limit certain testimony,
            the [c]ourt finds the outcome of this trial would not
            have changed. As such, the second prong of the
            Strickland test[,] that is but for the counsel's
            unprofessional errors the result would have been
            different[,] cannot be met.

      We affirm for the reasons the trial judge expressed. Defendant's claim of

cumulative error fails because we found error only in the prosecutor's

summation, and that error is insufficient to reverse.

                                        V.

      Finally, defendant argues his sentence was excessive because the judge

misapplied the aggravating and mitigating factors by counting factor two twice.

He asserts the court should not have found aggravating factors three or nine.

Defendant contends the court failed to find mitigating factors two, three, five,

and eight. He argues he should have been sentenced one degree lower and his

sentences should have run concurrently.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Pierce, 188 N.J. 155, 169-70 (2006). We "may not substitute

[our] judgment for that of the trial court, but [we] may review a sentence to

determine if the trial court violated the sentencing guidelines." State v. Johnson,

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                                       27
118 N.J. 10, 15 (1990) (citations omitted). We may review and modify a

sentence "only when the court's determination was 'clearly mistaken.'" State v.

Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401

(1989)). A trial judge is given "wide discretion" to impose a sentence, provided

it is within the statutory framework, and we must give that decision "great

deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Our role is to assure

the sentencing guidelines were met, the findings on aggravating and mitigating

factors are based upon "competent credible evidence in the record," and the

sentence is not "clearly unreasonable so as to shock the judicial conscience." Id.

at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      The trial judge sentenced defendant to two consecutive ten-year terms of

incarceration on each count of attempted murder, subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2. Applying the statutory factors set forth in N.J.S.A.

2C:44-1(a) and (b), the judge found aggravating factors one, two, three, and

nine, and mitigating factors seven, nine, and ten. Defendant did not present

compelling reasons to downgrade the first-degree charges.           See State v.

Megargel, 143 N.J. 484, 502 (1996). Because the judge imposed the minimum

legal term on each first-degree attempted murder charge, we need not scrutinize

the individual sentencing factors.


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                                       28
      In State v. Yarbough, our Supreme Court identified the criteria for

determining when consecutive, as opposed to concurrent, sentences should be

imposed, namely:

             (a) the crimes and their objectives were predominantly
             independent of each other;

             (b) the crimes involved separate acts of violence or
             threats of violence;

             (c) the crimes were committed at different times or
             separate places, rather than being committed so closely
             in time and place as to indicate a single period of
             aberrant behavior;

             (d) any of the crimes involved multiple victims; [and]

             (e) the convictions for which the sentences were
             imposed are numerous.

             [100 N.J. 627, 643-44 (1985) (footnote omitted).]

These factors "should be applied qualitatively, not quantitatively." State v.

Liepe, 453 N.J. Super. 126, 137 (App. Div. 2018) (quoting State v. Carey, 168

N.J. 413, 427 (2001)). A consecutive sentence may be imposed, even if a

majority of the Yarbough factors support concurrent sentences. Carey, 168 N.J.

at 427-28.    The fairness of the overall sentence should be considered in

reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J.

471, 485 (1993).


                                                                       A-5023-17T1
                                      29
      Here, the trial judge imposed consecutive sentences,

            [b]ecause these crimes involved two separate acts of
            violence involving two separate victims, both of whom
            were stabbed by this defendant during that September
            13[], 2014 incident, both victims suffered serious injury
            as a result of defendant's conduct and if it wasn't for the
            medical intervention both would have bled to death.
            So, the [c]ourt finds for those reasons . . . that running
            this consecutive as to factor number one, there shall be
            no crimes which means if the count one and count three
            were to run concurrent it essentially translates to the
            sentence is only for one victim, not the other and, as
            such, the other crime will be what is considered as a
            free crime in the system.

The judge evaluated the remaining Yarbough factors, and concluded "under the

circumstances[,] defendant's application for concurrent [sentences] is hereby

denied" and ordered the minimum consecutive sentences for each of defendant's

offenses.

      The judge did not err. "[C]rimes involving multiple victims represent an

especially suitable circumstance for the imposition of consecutive sentences

because the 'total impact of singular offenses against different victims will

generally exceed the total impact on a single individual who is victimized

multiple times.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, 168

N.J. at 428). "[T]he multiple-victims factor is entitled to great weight and




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                                       30
should ordinarily result in the imposition of at least two consecutive terms."

Ibid. (quoting Carey, 168 N.J. at 429-30).

      Affirmed.




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                                      31
