                                NOT FOR PUBLICATION WITHOUT THE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-4078-15T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

DEMETRIUS CORVIL, a/k/a
DEMETRUIS CORVIL,

     Defendant-Appellant.
_____________________________

                   Submitted November 29, 2018 – Decided August 1, 2019

                   Before Judges O'Connor, Whipple and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 13-05-0480.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Susan Brody, Deputy Public Defender, of
                   counsel and on the brief).

                   Michael A. Monahan, Acting Union County
                   Prosecutor, attorney for respondent (Milton Samuel
                   Leibowitz, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      Following a jury trial, defendant Demetrius Corvil was found guilty of

one count of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-

degree kidnapping, N.J.S.A. 2C:13-1(a); two counts of second-degree

kidnapping, N.J.S.A. 2C:13-1(b); one count of second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); one count of second-degree burglary, N.J.S.A.

2C:18-2; five counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two

counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); seven counts of

fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and one count of

fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e).

After the appropriate mergers, defendant was sentenced in the aggregate to a

discretionary extended term of imprisonment of twenty-three years, subject to

an eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

      Defendant appeals from his conviction and sentence. In his counsel's

brief, defendant raises the following points for our consideration:

            POINT I: THE COURT ERRED IN REFUSING TO
            BAR RETRIAL BASED ON PRINCIPLES OF
            DOUBLE JEOPARDY.

            POINT II: BECAUSE THE COURT'S JURY
            INSTRUCTION ON ROBBERY PROVIDED

                                                                        A-4078-15T4
                                        2
            CONFLICTING DEFINITIONS OF THE TERM
            "DEADLY WEAPON," THAT CONVICTION MUST
            BE AMENDED TO ONE OF SECOND-DEGREE
            ROBBERY. (Not raised below).

            POINT III: THE 23-YEAR TERM IMPOSED ON
            THE ROBBERY CHARGE SUBJECT TO THE NO
            EARLY RELEASE ACT WAS MANIFESTLY
            EXCESSIVE.

      Additionally, defendant advances the following points in a pro se

supplemental brief:

            POINT I: THE IN-COURT AND OUT-OF-COURT
            IDENTIFICATION OF DEFENDANT BY OFFICER
            SILVA SHOULD HAVE BEEN EXCLUDED
            BECAUSE THE SINGLE-PHOTO
            IDENTIFICATION WAS SO IMPERMISSIBLY
            SUGGESTIVE THAT IT GAVE RISE TO A
            SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
            MISIDENTIFICATION; TRIAL COUNSEL
            PROVIDED INEFFECTIVE ASSISTANCE BY
            FAILING TO SEEK A WADE HEARING; AND THE
            TRIAL COURT ERRED BY FAILING TO INCLUDE
            OFFICER SILVA'S IDENTIFICATIONS IN ITS
            INSTRUCTION TO THE JURY ON HOW TO
            ASSESS IDENTIFICATION TESTIMONY. (Not
            raised below).

                  a. The In-Court Identification of Defendant by
                  Officer Silva Should Have Been Excluded.

                  b. Trial Counsel Provided Ineffective
                  Assistance by Failing to Seek a Wade Hearing.

                  c. The Trial Court Committed Reversible Error
                  by Failing to Instruct the Jury to Carefully

                                                                   A-4078-15T4
                                      3
     Scrutinize Officer Silva's In-Court and Out-Of-
     Court Identifications.

POINT II: THE DEFENDANT'S RIGHT TO A FAIR
TRIAL WAS VIOLATED BY THE PROSECUTOR'S
REFERENCE TO HIM BEING A PRISONER
DURING QUESTIONING OF A STATE WITNESS
AND BY THE TRIAL COURT'S FAILURE TO
INSTRUCT THE JURY THAT NO ADVERSE
INFERENCE SHOULD BE DRAWN FROM THE
FACT OF DEFENDANT'S INCARCERATION. (Not
raised below).

     a. The Prosecutor's Reference to Defendant
     Being a Prisoner.

     b. The Trial Court's Failure to Provide a
     Cautionary Instruction.

POINT III: THE DEFENDANT WAS DENIED DUE
PROCESS OF LAW AND A FAIR TRIAL BY THE
INTRODUCTION OF EXPERT TESTIMONY THAT
DID NOT MEET THE SUPREME COURT'S
CRITERIA FOR RELIABILITY. (Not raised below).

POINT IV: THE STATE'S FAILURE TO PRESERVE
EXCULPATORY EVIDENCE OF THE GLOVES
TURNED OVER TO POLICE BY ONE OF THE
VICTIMS, AS WELL AS SURVEILLANCE
FOOTAGE AT BOB'S PHARMACY DEPICTING
TWO INDIVIDUALS MATCHING THE SUSPECTS'
DESCRIPTIONS FLEEING FROM THE SCENE OF
THE CRIME, VIOLATES DUE PROCESS AND
REQUIRES DISMISSAL OF THE INDICTMENT
WITH PREJUDICE, AND THE TRIAL COURT'S
FAILURE TO PROVIDE THE JURY WITH AN
ADVERSE INFERENCE SPOLIATION CHARGE


                                                       A-4078-15T4
                         4
            VIOLATED THE DEFENDANT'S RIGHT TO A
            FAIR TRIAL. (Not raised below).

                  a. The State's Failure to Preserve Exculpatory
                  Evidence Requires Dismissal of the Indictment
                  with Prejudice.

                  b. The Trial Court's Failure to Provide The Jury
                  with an Adverse Inference Spoliation Charge
                  Violated the Defendant's Right to a Fair Trial.

            POINT V: THE DEFENDANT'S RIGHTS TO DUE
            PROCESS OF LAW AS GUARANTEED BY THE
            FOURTEENTH AMENDMENT TO THE UNITED
            STATES CONSTITUTION AND ARTICLE I,
            PARAGRAPH 1 OF THE NEW JERSEY
            CONSTITUTION WAS VIOLATED BY THE TRIAL
            COURT'S FAILURE TO RECORD SIDEBAR
            CONFERENCES.

            POINT VI: EVIDENCE OF A SLEEPING JUROR
            VIOLATED DEFENDANT'S FEDERAL AND
            STATE CONSTITUTIONAL RIGHTS TO DUE
            PROCESS AND AN "IMPARTIAL AND
            MENTALLY COMPETENT" TRIBUNAL AND THE
            TRIAL COURT'S FAILURE TO VOIR DIRE THE
            ALLEGEDLY SLEEPING JUROR AMOUNTED TO
            AN ABUSE OF DISCRETION. (Not raised below).

            POINT VII: THE DEFENDANT'S RIGHT TO DUE
            PROCESS AND TO CONFRONT THE WITNESSES
            AGAINST HIM WAS VIOLATED BY THE STATE'S
            ABUSE OF THE RULE ALLOWING WRITINGS TO
            REFRESH A WITNESS' MEMORY.

      Having reviewed the briefs, record and applicable legal principles, we

affirm the conviction and sentence in all respects.

                                                                     A-4078-15T4
                                        5
                                          I

        The salient evidence adduced at trial was as follows. On October 31,

2011, J.R. and his girlfriend, S.R., had a number of J.R.'s family members in

their home in Elizabeth for the weekend in order to celebrate his birthday. 1 At

approximately 9:00 a.m., a man later identified as defendant knocked on the

door, holding a gift bag and a balloon. When one of the guests opened the door,

defendant punched the guest in the head, causing the guest to fall. Before

defendant struck him, the guest saw defendant's face.

        Defendant then donned a ski mask, pointed a gun at the guest, and entered

the house with another man, who was wearing a mask on which was the image

of a skull or skeleton. 2 This man, suspected of being Jesus Velasquez, was

charged with various offenses along with defendant, but Velasquez was

ultimately acquitted of all charges. For purposes of this opinion, we refer to the

man who entered the house with defendant as the "second intruder."

        The men pointed a gun at the guests on the first floor and ordered them to

lie face down. The second intruder went upstairs into J.R. and S.R.'s bedroom,

where they were still sleeping, pointed a gun at them, told them they were being


1
    We use initials to protect the privacy of the victims.
2
    This gun was later recovered and determined to be a starter pistol.
                                                                          A-4078-15T4
                                          6
robbed, and ordered them to go downstairs. They complied and, when they got

to the first floor, lay on the floor face down with the other guests.

      The men asked J.R. where he kept his money, and he replied it was in a

safe upstairs. Defendant ordered J.R. to go back upstairs, while the second

intruder remained behind. After defendant and J.R. went upstairs, J.R. hesitated

before he opened the safe. Defendant beat J.R. with a gun on the back of his

skull until he opened the safe. J.R. handed the money in the safe, which

contained approximately $74,000 in cash, to defendant. J.R. was brought back

downstairs and questioned about whether there was any other money in the

house. While questioned, J.R. was struck about the head with a gun, and one of

the men put a gun to the back of S.R.'s head. J.R. told the intruders there was

not any other money in the house.

      Meanwhile, a guest in the house, who had escaped the intruders' detection,

climbed out of a bathroom window, ran to a local store, and told the owner to

call the police. As a result of that call, police officers Matthew Williams and

Ina Silva of the Elizabeth Police Department responded to the scene. Williams

entered the home and searched the house for suspects, while Silva went to the

rear of the house. She saw a heavyset black male wearing black clothes run out




                                                                        A-4078-15T4
                                         7
of the back door. Silva chased him, but was unable to keep up and headed back

toward the house.

      While returning to the house, Silva saw the other suspect, subsequently

determined to be defendant, in an alley near the house. She and Williams

pursued him and two other police officers, Meagher and Streep, managed to

apprehend him at the rear of a pharmacy and place him under arrest.

      Following defendant's arrest, near J.R.'s house the police recovered a

starter pistol from a garbage can and a ski mask in a back yard. A mask with a

skull on it was found in another yard in the neighborhood. DNA obtained from

the ski mask matched that provided by defendant through a buccal swab.

      Defendant and Velasquez were tried together. After the trial commenced,

co-defendant's counsel advised the court she intended to call assistant prosecutor

Colleen Ruppert to testify about the contents of a memorandum she had drafted

in 2012, when she had last worked on the case, because the contents of that

memorandum suggested other parties may have been the perpetrators. The court

permitted co-defendant to call Ruppert as a witness.

      A copy of the memorandum was not provided in the record, but colloquy

between court and counsel revealed the memorandum referenced that either J.R.

or S.R. told the State that two of their neighbors had told them that they had seen


                                                                          A-4078-15T4
                                        8
two men and a woman outside of J.R.'s house during the early morning hours of

October 31, 2011.

      During a sidebar conference while Ruppert was on the witness stand,

defendants indicated they had not been made aware of the fact that the neighbors

also reported the two men and the woman were in a car when outside of the

victims' home. The record is unclear, but the comments of counsel indicate there

was a document other than Ruppert's memorandum that contained the

information about the two men and the woman being in a car. Co-defendant's

counsel admitted the State had revealed to defendants that J.R. and S.R. had

advised the State their neighbors noticed two men and a woman around the

victim's house in the early morning hours of the day of the robbery. However,

counsel represented to the court that the "idea that there was a car with three

occupants in it" was not.

      The prosecutor clarified it was actually S.R., not J.R., who had provided

the information about the neighbors, and that the State had only learned about

the fact the two men and one women may have been in a car just before the trial

began. The prosecutor argued both defendants had previously known about the

two males and a female and, in the prosecutor's opinion, "[w]hether or not [the

men and the woman] were on foot or in a car, it's immaterial." The prosecutor


                                                                        A-4078-15T4
                                       9
further commented the State was unable to find out who the neighbors were and,

thus, could not confirm the existence of a car. Finally, he noted there was

nothing that precluded either defendant from speaking to S.R. about what she

learned from the neighbors.

      Defendant requested and the court granted a mistrial, because the

information the State learned just before trial from S.R., specifically, that the

neighbors may have seen the two men and a woman in a car, could have altered

defendant's trial strategy. Specifically, the court noted that if defendant had

been provided such information by the State, he may have asserted a third party

or parties committed the subject crimes.

      Just before jury selection on the retrial, defendant unsuccessfully moved

to dismiss the indictment on double-jeopardy grounds, pursuant to N.J.S.A.

2C:1-9. The retrial proceeded to conclusion. As previously stated, the jury

convicted defendant of, among other things, first-degree robbery, and he was

sentenced in the aggregate to a twenty-three year term of imprisonment. The

co-defendant was acquitted of all charges.




                                                                         A-4078-15T4
                                      10
                                         II

                                         A

      On appeal, defendant contends the trial court erred when it denied his

motion to dismiss the indictment on double-jeopardy grounds.

      The law governing the dismissal of an indictment when a mistrial has been

granted at a defendant's request is grounded in principles of double jeopardy

embodied in the Fifth Amendment of the Federal Constitution and Paragraph 11,

Article I, of the New Jersey Constitution. State v. Torres, 328 N.J. Super. 77,

85-92 (App. Div. 2000). A defendant has two options when prosecutorial error

has occurred. Oregon v. Kennedy, 456 U.S. 667, 676-77 (1982).

      The first option is to proceed to verdict, appeal and, if successful, face

retrial. The second option is to request a mistrial and take advantage of some of

the benefits provided under the "Double Jeopardy Clause the freedom from

extended anxiety, and the necessity to confront the government's case only once

— [that] would be to a large extent lost in the process of trial to verdict, reversal

on appeal, and subsequent retrial." Ibid. But when a defendant obtains a

mistrial, retrial is not barred unless "the governmental conduct in question is

intended to 'goad' the defendant into moving for a mistrial." Id. at 676.




                                                                            A-4078-15T4
                                        11
       Our courts apply the Oregon v. Kennedy standard under the federal and

State constitutions. Torres, 328 N.J. Super. at 92; State v. Cooper, 307 N.J.

Super. 196, 202-03 (App. Div. 1997). Under Oregon v. Kennedy's test, direct

evidence of the government's intent to goad is not required. It may be inferred

from the "objective facts and circumstances" of the case. Kennedy, 456 U.S. at

675.

       In Torres, we identified objective factors to be considered in "determining

whether or not a prosecutor's misconduct was intended to provoke a mistrial."

Torres, 328 N.J. Super. at 88. These factors are: "(1) whether there was a

sequence of overreaching or error prior to the error resulting in the mistrial, (2)

whether the prosecutor resisted the motion for a mistrial, (3) whether the

prosecutor testified, and the court below found, that there was no intent to cause

a mistrial, and (4) the timing of the error." Ibid. (citing Kennedy, 456 U.S. at

680 (Powell, J., concurring)). Not all of the factors are necessarily implicated

or probative in each case. The necessary inquiry is whether the objective facts

and circumstances of the case tend to support or negate an inference the State

provoked a defendant's request for mistrial.

       Here, defendant maintains the prosecutor knew he possessed potentially

exculpatory information, specifically, that neighbors informed S.R. that the two


                                                                          A-4078-15T4
                                       12
men and the woman observed to be outside of J.R. and S.R.'s residence just

before the robbery were in a car, not on foot, and that the State withheld such

information so defendant would request a mistrial.          However, defendant

concedes such conduct may not rise to the level of deliberately goading a

mistrial.

      The trial court found the assistant prosecutor did not intend to provoke

defendant into requesting a mistrial. The court stated:

            In the present matter, the State failed to turn over
            some evidence which this [c]ourt finds was a good
            faith error. . . .

                  ....

            [T]he State's attorney said, well, we were looking at
            information and had some information about a car
            which we weren't able to verify and the neighbors that
            may have given that information are in the wind.
            They're no longer able to be found so to us it was
            essentially speculative and not material because there
            wasn't anything that we could determine. [However,]
             . . . [defendants] knew in discovery that [the]
            neighbors had existed . . . .

            Defense then brought to question saying, wait a
            minute, we don't see anything . . . in [Ruppert's] memo
            about a car . . . and that's what preempted the mistrial
            being filed by [defendant] to look into this matter and
            indicating to the court at the time that . . . [defendant]
            may have opened differently. [Defendant] didn't
            necessarily open to a third party defense but this
            information about a car may [have] present[ed] it. So

                                                                         A-4078-15T4
                                       13
           in order to give the defendant all the benefit of the
           doubt, the court granted the [mistrial] motion at the
           time.

           However, in granting the motion, the [c]ourt
           understood that [the] defense should have the time to
           explore these further developments and maybe
           develop that third party defense. . . . And it came out
           that after the mistrial, in interviewing certain people
           and trying to connect who knew who, that those
           ultimate neighbors, which no longer live at the
           address, were able to be contacted and identified and
           questioned.

           So, it didn't appear that it was, per se, exculpatory
           information. The State had turned over everything it
           believed in good faith it was required to turn over. . . .
           I didn't see anything demonstrated by [the prosecutor]
           throughout this trial that would have called his ethical
           obligations into question.

                 ....

           [T]he prosecutor . . . in this case did, in this court's
           opinion, sufficiently explain that he did overlook
           information. He believed it was unimportant. He
           wasn't trying to slip anything by anybody or do
           anything that would have been, you know, behind
           anybody's back. The act itself was a mistake, was an
           error, was inadvertence, it was negligence. It wasn't
           part of a strategy that he had. It wasn't, in any way,
           intended to goad the defendants into requesting any
           type of mistrial.

     Once the trial court found the prosecutor did not intend to provoke a

mistrial request, the court was required to deny the motion to dismiss the


                                                                        A-4078-15T4
                                      14
indictment. Even "[p]rosecutorial conduct that might be viewed as harassment

or overreaching, even if sufficient to justify a mistrial on defendant's motion,

. . . does not bar retrial absent" intent to deprive the defendant of his right to

decide whether the charges will be adjudicated in one proceeding. Kennedy,

456 U.S. at 675-76.

      Here, the consideration of the four factors a court is to use when

evaluating whether a prosecutor's conduct was intended to goad a defendant into

seeking a mistrial supports the trial court's conclusion. As for the first factor,

there is no evidence of a sequence of overreaching or error prior to the error

resulting in the mistrial. Defendant does not even allege the State withheld any

discovery other than that the two men and the woman may have been in a

vehicle. As for the second factor, the State vigorously resisted defendant's

motion for a mistrial.

      Regarding the third factor, the assistant prosecutor did not testify, but

there are sound reasons in the record to conclude the failure to turn over the

subject evidence was inadvertent. Further, we note the State had turned over all

evidence except for evidence the two men and the woman may have been sitting

in a car. Defendant knew that J.R. or S.R. had advised the State their neighbors

saw the two men and the woman near the victims' home just before the crimes


                                                                          A-4078-15T4
                                       15
occurred. Defendant could have but did not question J.R. or S.R. and follow-up

with the neighbors to obtain additional details.

      As for the fourth factor, defendant sought a mistrial just after the State

had rested and defendant elected not to testify. The evidence against defendant

was very strong, if not overwhelming, in light of the fact the DNA found in the

ski mask discovered close to the victims' home very soon after the incident

matched defendant's.

      Weighing these factors, we agree with the trial court that the prosecutor

did not intend to provoke or goad defendant into requesting a mistrial.

Therefore, the retrial was not barred.

                                         B

      Defendant next attacks the quality of the jury charge.        His principal

contention is the jury instruction on robbery was defective because the court

provided conflicting definitions of the term "deadly weapon." Defendant did

not raise this issue before the trial court. He argues the only remedy is to amend

the conviction for robbery from a first-degree to a second-degree offense.

      The court's instruction on the meaning of "deadly weapon" was:

            A "deadly weapon" is any firearm or other weapon,
            device, instrument, material or substance, whether
            animate or inanimate, which in the manner it is used,
            or intended to be used, is known to be capable of

                                                                         A-4078-15T4
                                         16
            producing death or serious bodily injury, or which in
            the manner it is fashioned would lead the victim
            reasonably to believe that it's capable of producing
            death or serious bodily injury.

            [(Emphasis added).]

      Defendant acknowledges the above definition of "deadly weapon" is

correct, because it properly explains that an imitation firearm may be a deadly

weapon. However, thereafter, the court explained the difference between first -

and second-degree robbery and then instructed:

            In this case, the State must prove beyond a reasonable
            doubt that the defendants were armed with, used or
            threatened immediate use of a deadly weapon while in
            the course of committing the robbery. "Armed with a
            deadly weapon" means that the defendant possessed
            and had immediate access to a deadly weapon. A
            "deadly weapon" is any firearm or other weapon,
            device, material or substance, whether animate or
            inanimate, which in the manner which it is used, or
            intended to be used, is known to be capable of
            producing death or serious bodily injury.

            [(Emphasis added.)].

      Defendant notes that in the above portion of the charge, the court did not

include in its definition of "deadly weapon" reference to an object "which in the

manner it is fashioned would lead the victim reasonably to believe that it's

capable of producing death or serious bodily injury." Defendant does concede

that, thereafter, when the court used the term "deadly weapon," the court added

                                                                        A-4078-15T4
                                      17
the language "or imitation thereof." For example, in one portion of the charge

the court instructed:

            If you find the State has proven beyond a reasonable
            doubt that the defendant Demetrius Corvil and/or
            defendant Jesus Velasquez committed the crime of
            robbery and was armed with a deadly weapon, or used
            or threatened immediate use of a deadly weapon or
            imitation thereof at the time of the commission of the
            robbery, then you must find defendant Demetrius
            Corvil and/or defendant Jesus Velasquez guilty of
            robbery in the first degree.

            [(Emphasis added).]

However, defendant argues the above instruction and wherever else the court

made reference to a "deadly weapon or imitation thereof" was nevertheless

defective because the court did not define the term "imitation."

      When a defendant fails to object to a jury charge, 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).        In addition, "[t]he error must be

considered in light of the entire charge and must be evaluated in light 'of the

overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)

(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). "Without an objection

at the time a jury instruction is given, 'there is a presumption that the charge was


                                                                           A-4078-15T4
                                        18
not error and was unlikely to prejudice the defendant's case.'" State v. Montalvo,

229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).

       Here, the court defined the term deadly weapon, instructing such a weapon

includes any device or instrument "which in the manner it is fashioned would

lead the victim reasonably to believe that it is capable of producing death or

serious bodily injury." The court omitted the latter language in one section of

the charge in which the court referenced the meaning of deadly weapon.

However, after that one omission, the court's repeated use of the term "deadly

weapon or imitation firearm" served to inform the jury the court's initial

definition of deadly weapon, which essentially includes objects that appear to

be firearms, was the definition to which it was to adhere.          In our view,

considering it as a whole, the charge was not clearly capable of producing an

unjust result.

                                        C

       Defendant claims trial counsel was ineffective for failing to request a

Wade3 hearing. In addition, for the first time on appeal, defendant contends

Officer Silva's out-of-court and in-court identifications of him should have been




3
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-4078-15T4
                                       19
excluded, and that the trial court erred when it failed to instruct the jury on "how

to assess identification testimony." We reject these contentions.

      Generally, ineffective assistance of counsel claims are not considered on

direct appeal because they "involve allegations and evidence that lie outside the

trial record." State v. Preciose, 129 N.J. 451, 460 (1992). However, a reviewing

court may consider such a claim on direct appeal "when the trial itself provides

an adequately developed record . . . ." State v. Castagna, 187 N.J. 293, 313

(2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)). Here, the record is

sufficiently developed. We readily dispense with and reject defendant's claim

trial counsel was ineffective because he failed to request a Wade hearing.

Specifically, Silva did not make an out-of-court identification of defendant.

Thus, there would not have been any reason for trial counsel to seek a Wade

hearing.

      During the course of her testimony, Silva identified defendant as the

person arrested by the police. Defendant fails to provide a reason that supports

his premise Silva's in-court identification was the product of any error or

misconduct on the part of the police. Even if her in-court identification were,

her testimony was immaterial. First, the fact Silva testified she saw defendant

being arrested is not probative of the fact he committed a crime.


                                                                           A-4078-15T4
                                        20
      Second, defendant does not challenge Officer Williams and Meagher's

testimony that they apprehended and arrested defendant. Third, the evidence

against defendant was very strong. Defendant's DNA matched that found in the

ski mask recovered near the scene of the incident, and the ski mask fit the

description of one of the masks worn by one of the intruders.

      Defendant's contention the court failed to properly instruct the jury on

how to "assess identification testimony" is without sufficient merit to warrant

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

                                         D

      Defendant claims his right to a fair trial was violated because of references

to him as a prisoner during the trial and the court's failure to provide a curative

instruction. Specifically, during his direct examination, the State asked Officer

Williams what occurred after defendant's arrest. Williams responded, "Usually

[they] process the prisoner or process clothing that might have to be tagged. "

When the State asked him if S-204 was a shirt worn by "prisoner Corvil,"

Williams responded in the affirmative.

      Defendant did not object to Williams's testimony or request a curative

instruction. The State concedes both its and Williams's reference to defendant




                                                                          A-4078-15T4
                                       21
as a prisoner was inappropriate, but maintains the State's actions constituted

harmless error. We agree.

      Although characterizing defendant as a prisoner was improper, these two

references in this lengthy trial were fleeting and, in context, not prejudicial to

defendant. It was obvious defendant was labeled as such because he had just

been arrested and was being detained for the subject offenses, not because he

was serving a sentence for a prior crime. The errors were harmless and do not,

as defendant contends, require a reversal of his convictions.

                                        E

      Defendant maintains his sentence of imprisonment for twenty-three years

in the aggregate is excessive. Specifically, defendant was sentenced to the

following terms of imprisonment: twenty-three years for first-degree robbery,

N.J.S.A. 2C:15-1; eight years for second-degree kidnapping, N.J.S.A. 2C:13-

1(a); five years for second-degree kidnapping, N.J.S.A. 2C:13-1(b); eight years

for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); nine years for

second-degree burglary, N.J.S.A. 2C:18-2; five years for third-degree criminal

restraint, N.J.S.A. 2C:13-2(a); ten years for third-degree terroristic threats,

N.J.S.A. 2C:12-3(b); eighteen months for fourth-degree aggravated assault,




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N.J.S.A. 2C:12-1(b)(4); and eighteen months for fourth-degree unlawful

possession of an imitation firearm, N.J.S.A. 2C:39-4(e).

      Defendant was found to be discretionary extended term eligible on the

robbery charge as a persistent offender, pursuant to N.J.S.A. 2C:44-3. At the

sentencing hearing, the State requested an aggregate sentence of sixty-five

years; defendant contended a sentence in the range of twenty to twenty-five

years was appropriate. On appeal, defendant does not claim the court abused its

discretion in imposing the extended term; his argument is the term of years

imposed was excessive.

      At sentencing, the court noted defendant was thirty-four years of age when

he committed the subject offenses, had previous convictions that resulted in five

separate prison terms, and had violated parole four times. The court found

aggravating factors three, six, and nine applied, see N.J.S.A. 2C:44-1(a), that

there were no mitigating factors, see N.J.S.A. 2C:44-1(b), and that the

aggravating factors outweighed the nonexistent mitigating factors.

      We have examined the record in light of defendant's argument. Defendant

received an extended sentence, to which he does not object, and the court

ordered that all of his sentences run concurrently to the sentence imposed for

first-degree robbery. The aggregate sentence imposed is just three years above


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the maximum that may be ordered for a first-degree offense, and it is not

disputed the court did not err by imposing an extended term. In our view, the

sentence was not manifestly excessive and does not shock our judicial

conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth,

95 N.J. 334, 364-65 (1984)).

                                       F

      We have considered defendant's remaining arguments, and conclude they

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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