SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5128-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DASHON T. ROSS,

a/k/a SAHEED MILFORD, 

DWIGHT SMITH, DASHONE 

THOMAS, and SAHEID 

MILLFORD,

Defendant-Appellant.

___________________________

Submitted March 22, 2021 – Decided June 21, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 16-06-1805 

and 16-06-1808.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Molly O'Donnell Meng, Assistant Deputy 

Public Defender, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5128-18

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Valeria Dominguez, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his jury trial convictions for drug and gun 

offenses and resisting arrest. He contends the trial judge committed several 

errors, all of which are raised for the first time on appeal. After carefully 

reviewing the record in light of the arguments of the parties and the applicable 

legal principles, we affirm.

We briefly summarize the procedural history and the relevant facts that 

were adduced by the State at trial. In June 2016, a grand jury returned an 

indictment charging defendant with third-degree simple possession of a 

controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a); thirddegree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 

(b)(3); third-degree possession of a CDS with intent to distribute while within 

1,000 feet of a school, N.J.S.A. 2C:35-7(a); second-degree possession of a CDS 

with intent to distribute while within 500 feet of certain public property, 

N.J.S.A. 2C:35-7.1(a); second-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of hollow nose bullets, 

N.J.S.A. 2C:39-3(f); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and 
3 A-5128-18

fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). The grand jury 

returned a separate indictment also charging defendant with second-degree 

certain persons not to have firearms or ammunition, N.J.S.A. 2C:39-7(b)(1).

On October 12, 2018, the trial judge denied defendant's motion to suppress 

evidence.1

 On October 15, 2018, the judge granted the State's motion to dismiss 

the three counts charging possession of a CDS with intent to distribute.

Defendant was initially tried by a jury over the course of five nonconsecutive days in October 2018. During this first trial, the State presented a 

store security video recording of a man discarding a firearm on a store shelf. A 

State Police witness referred to the man depicted in the video as "the defendant," 

prompting an objection from defense counsel. The trial judge sustained the 

objection. The jury found defendant guilty of possessing heroin and resisting 

arrest. The jury was unable to reach a verdict on the counts charging unlawful 

possession of a handgun, unlawful possession of hollow nose bullets, and 

tampering with evidence. Because the jury failed to reach a verdict on whether 

defendant possessed the firearm, the jurors were not asked to consider the 

bifurcated certain persons charge.

1 Defendant did not appeal the denial of the motion to suppress. Accordingly, 

the lawfulness of the actions taken by the state troopers is not before us in this 

appeal and we offer no opinion in this regard.
4 A-5128-18

A second jury trial convened over the course of five non-consecutive days 

in March 2019. Unlike the first trial, defense counsel did not object when 

troopers again referred to the man depicted in the security video as "the 

defendant." The second jury found defendant guilty of unlawful possession of 

a handgun and tampering with evidence. The jury acquitted defendant of 

unlawful possession of hollow nose bullets. The trial judge then instructed the 

jury to consider the bifurcated count charging defendant as a certain person 

prohibited from possessing a firearm by reason of a prior conviction. The jury 

convicted defendant on that charge.

At the sentencing hearing, the trial judge granted the State's motion for a 

discretionary extended term of imprisonment as a persistent offender pursuant 

to N.J.S.A. 2C:44-3(a). On the second-degree unlawful possession of a firearm 

conviction, the judge imposed a ten-year prison term—the lowest possible term 

in the extended-term range—with a five-year period of parole ineligibility 

pursuant to the Graves Act, N.J.S.A. 2C:39-5(i). The sentences imposed on the 

other convictions were ordered to run concurrently.

The following facts were elicited at the second trial. State Trooper 

Michael Savnik was dispatched to investigate a report of a man fleeing the scene 

of a car accident in the area of Elizabeth Avenue and Meeker Avenue in Newark. 
5 A-5128-18

Trooper Savnik, Trooper Joshua Morrison, and two other troopers went to a 

grocery store on Elizabeth Avenue to look for the fleeing suspect. Once inside 

the store, Trooper Savnik "locked eyes" with a man who then turned away and 

walked down the back aisle and out of the trooper's view. That man was wearing 

"a black and gray jacket with [the word] 'Birds' written across the chest, . . . an 

S on the right sleeve, a gray hooded sweatshirt underneath that jacket with the 

hood up, blue jeans, black sneakers, and orange shoelaces." Troopers Savnik 

and Morrison followed the individual's path toward the back of the store. They 

eventually confronted him and initiated an investigative detention and protective 

frisk for weapons. Both troopers testified that during this encounter, they were 

standing approximately one to two feet away while facing the man and thus 

could clearly see his face. The troopers released the man because they saw no 

signs of injury that would link him to the reported car accident and found no 

weapons on his person.

The troopers returned to the store approximately thirty minutes later in 

response to a call by the owner, who reported that a gun had just been found on 

a shelf. Trooper Savnik secured a handgun loaded with seven hollow nose 

bullets and six metal jacket bullets. The weapon was hidden behind cans of dog 

food. 
6 A-5128-18

The store owner provided the troopers with a store surveillance video 

recording that depicted how and when the gun was discarded on the shelf. The 

video depicts a man walk towards the back of the store, turn the aisle, adjust his 

waistband, produce a black handgun from his waistband, place the handgun on 

the rear shelf by the dog food cans, and then turn back to the front of the store. 

At that point, the man was stopped by Troopers Savnik and Morrison. The video 

captures the investigative detention and shows that the man detained by the 

troopers was the same person who placed the handgun on the back shelf behind 

the dog food cans.

State police circulated a flyer depicting the suspect taken from a still 

image from the surveillance video. On the day following the incident, Detective 

Sergeant Thomas Kelshaw reported that he saw an individual matching the 

picture in the flyer. Trooper Morrison responded to the scene and recognized 

defendant as the individual who had been stopped the day before inside the store. 

Defendant attempted to run away but was quickly apprehended. Trooper Savnik 

arrived shortly thereafter. Both troopers testified that they recognized 

defendant's face from their encounter inside the store the previous day. They 

also testified that at the time of the arrest, defendant was wearing the same 
7 A-5128-18

distinctive jacket that had been worn by the individual they briefly detained in 

the store the day before.

 Trooper Morrison administered Miranda2 warnings and conducted a 

search of defendant's person incident to his arrest. That search revealed twentyseven wax folds of heroin in his possession. Trooper Morrison testified that 

when defendant was later taken to a holding cell, he stated, "[h]ow are you going 

to get me on some shit I did yesterday?" No fingerprints or DNA were found 

on the weapon recovered from the store.

Defendant raises the following contentions for our consideration:

POINT I

THE PROSECUTOR ELICITED IMPROPER LAYWITNESS OPINION TESTIMONY AS TO THE 

CONTENT OF THE SURVEILLANCE VIDEO AND 

THE IDENTITY OF THE MAN IN THE BODEGA. 

(Not raised below).

POINT II

THE TRIAL COURT FAILED TO PROPERLY 

INSTRUCT THE JURY ON HOW TO CONSIDER 

THE VIDEO PLAYED BACK DURING 

DELIBERATIONS, AS REQUIRED BY STATE V. 

MILLER. (Not raised below).

2 Miranda v. Arizona, 384 U.S. 436 (1966).
8 A-5128-18

POINT III

THE TRIAL COURT FAILED TO PROPERLY 

INSTRUCT THE JURY ON THE STATEMENT ROSS 

ALLEGEDLY MADE TO TROOPER MORRISON, 

AS REQUIRED BY STATE V. KOCIOLEK. (Not 

raised below).

POINT IV

THE CUMULATIVE EFFECT OF THE 

AFOREMENTIONED ERRORS DENIED 

DEFENDANT OF A FAIR TRIAL. (Not raised 

below).

POINT V

IN THE ALTERNATIVE, THE MATTERS MUST BE 

REMANDED FOR RESENTENCING BECAUSE 

THE TRIAL COURT IMPROPERLY DOUBLECOUNTED DEFENDANT'S PRIOR RECORD.

I.

We first address defendant's contention the trial judge committed plain 

error by allowing Troopers Morrison and Savnik to refer to the man depicted in 

the surveillance video as "the defendant," and by failing to sua sponte provide a 

curative instruction to the jury. Defendant argues these references constitute 

inappropriate lay opinion testimony as to the identity of the man depicted in the 

video recording.

In State v. Singh, our Supreme Court recently addressed whether the trial 

court committed plain error by allowing a police witness to make references to 
9 A-5128-18

"the defendant" while narrating the surveillance video recording of a robbery for 

the jury. 245 N.J. 1 (2021). The Court in Singh held that the police witness's 

references to the defendant as the man depicted in the surveillance video were 

improper but did not amount to plain error capable of producing an unjust result 

in light of the other evidence adduced by the State. Id. at 18. 

The Court began its analysis by examining the purpose and boundaries of 

N.J.R.E. 701, which provides:

If a witness is not testifying as an expert, the witness's 

testimony in the form of opinions or inferences may be 

admitted if it:

(a) is rationally based on the witness's perception; and

(b) will assist in understanding the witness's testimony 

or determining a fact in issue.

The Court in Singh stressed, "[w]e have made clear that '[t]he purpose of 

N.J.R.E. 701 is to ensure that lay opinion is based on an adequate foundation.'" 

Id. at 14 (alteration in original) (quoting State v. Bealor, 187 N.J. 574 (2006)). 

"Accordingly, lay opinion testimony can be admitted only 'if it falls within the 

narrow bounds of testimony that is based on the perception of the witness and 

that will assist the jury in performing its function.'" Ibid. (quoting State v. 

McLean, 205 N.J. 438, 456 (2011)).
10 A-5128-18

The first prong of N.J.R.E. 701 requires the witness's opinion testimony 

to be based "on the witness's 'perception,' which rests on the acquisition of 

knowledge through use of one's sense of touch, taste, sight, smell or hearing." 

245 N.J. at 14. "[U]nlike expert opinions, lay opinion testimony is limited to 

what was directly perceived by the witness and may not rest on otherwise 

inadmissible hearsay." Id. at 14–15 (quoting McLean, 205 N.J. at 460).

The second prong of N.J.R.E. 701 requires that the witness's opinion 

testimony be "limited to testimony that will assist the trier of fact either by 

helping to explain the witness's testimony or by shedding light on the 

determination of a disputed factual issue." Id. at 15 (quoting McLean, 205 N.J. 

at 458).

In State v. Lazo, the Court held that "lay witness testimony is permissible 

where the witness has had 'sufficient contact with the defendant to achieve a 

level of familiarity that renders the lay opinion helpful.'" 209 N.J. 9, 22 (2012) 

(quoting United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)). The Court 

in Singh again embraced Beck's reasoning, noting that

Whether that opinion is "helpful[]" . . . depends on 

various factors including the witness's familiarity with 

the defendant's appearance when the crime was 

committed, or with the defendant's manner of dress, if 

relevant, whether the defendant disguised [his or her] 

appearance during the offense or altered [his or her] 
11 A-5128-18

looks before trial, and "whether the witness knew the 

defendant over time and in a variety of circumstances."

[Singh, 245 N.J. at 16 (quoting Lazo, 209 N.J. at 12, 

and Beck, 418 F.3d at 1015).]

In Lazo, the Court further noted that when evaluating whether a law 

enforcement officer can provide a lay opinion on identification, a reviewing 

court may also consider whether there are additional witnesses available to 

identify the defendant at trial. Lazo, 209 N.J. at 23 (citing United States v. 

Butcher, 557 F.2d 666, 670 (9th Cir. 1977) (allowing testimony but noting that 

"use of lay opinion identification by policemen or parole officers is not to be 

encouraged, and should be used only if no other adequate identification 

testimony is available to the prosecution") and State v. Carbone, 180 N.J. Super. 

95, 97–100 (Law Div. 1981) (allowing lay witness testimony and noting lack of 

available eyewitness identification, change of defendant's appearance, and 

familiarity with his appearance at time of crime)).

We next summarize the facts in Singh to highlight the similarities to and 

differences from the situation that developed in the case now before us. In 

Singh, a man wearing dark clothing and white-soled shoes "with three stripes 

going down the side" robbed a gas station with a machete. 245 N.J. at 6, 8. The 

robbery was captured on the store's video surveillance system. Id. at 6. Officers 
12 A-5128-18

dispatched to the scene canvassed the neighborhood and encountered a man 

wearing dark clothing who turned and ran at the sight of police. Ibid. When 

they lost sight of that man, the pursuing officers called for backup as they 

continued their search. Ibid. Eventually one of the original pursuing officers 

confronted a man in a nearby backyard who was wearing dark clothing and was 

sweating and panting heavily. Ibid. A detective responding to the request for 

backup heard the arresting officer shouting commands at the suspect and 

assisted in making the arrest. Ibid. Police searched the vicinity after the arrest 

and found a machete and a plastic bag containing the proceeds of the robbery. 

Id. at 7.

The State's case in Singh rested primarily on the testimony of the gas 

station clerk, the arresting officer, and the detective who assisted with the arrest. 

Id. at 7–10. At trial, the detective testified that the video depicted the robber 

wearing distinctive shoes with "white soles at the bottom, with three stripes 

going down the side." He also testified that the defendant was wearing similar 

shoes at the time of his arrest. Id. at 8. On appeal, the defendant claimed that 

permitting the detective's testimony as to the content of the surveillance video 

and the identity of the depicted robber was plain error. The Supreme Court 

affirmed the conviction, concluding that,
13 A-5128-18

although it was error for [the detective] to refer to an 

individual depicted in the surveillance video as "the 

defendant" in his narration of that video, that error was 

harmless given the fleeting nature of the comment and 

the fact that the detective referenced defendant as "the 

suspect" for the majority of his testimony. Moreover, 

we conclude that [the detective's] testimony that the 

sneakers he saw in the video were similar to those he 

saw defendant wearing the night he was arrested was 

proper lay opinion testimony under N.J.R.E. 701.

[Id. at 17–18.]

In reaching this conclusion, the Court reaffirmed the well-established 

principle that an error not challenged at trial will be disregarded "unless a 

reasonable doubt has been raised whether the jury came to a result that it 

otherwise might not have reached." Id. at 13. "Plain error is a high bar and 

constitutes error not properly preserved for appeal but of a magnitude dictating 

appellate consideration." Ibid. The Court nonetheless stressed that the 

detective's references to the defendant when narrating the video were 

inappropriate. Id. at 18. The Court admonished that such references, "even 

when, as here, they are used fleetingly and appear to have resulted from a slip 

of the tongue—should be avoided in favor of neutral, purely descriptive 

terminology such as 'the suspect' or 'a person.'" Ibid.

We believe the circumstances in the present case are distinguishable from 

Singh in an important respect. Notably, in this case, the troopers themselves 
14 A-5128-18

appeared in the surveillance video they narrated. They both made in-court 

identifications of defendant as the man they detained in the grocery store the day 

before defendant was arrested. Both troopers also testified that the man they 

detained in the store was wearing the same distinctive clothing that the 

defendant was wearing at the time of his arrest the following day. Accordingly, 

even if the troopers had not referred to the person depicted in the video as "the 

defendant," the jury would have been aware that the troopers believed that 

defendant was the person who appeared with them in the surveillance video 

recording.

In this instance, moreover, the State Police witnesses were familiar with 

defendant from two separate encounters: the initial investigative detention 

recorded on the surveillance video, and the arrest made the next day. Thus, at 

the time they testified at trial, both witnesses had greater contact and familiarity 

with defendant than the detective who narrated the video recording in Singh. 

See Lazo, 209 N.J at 22 ("Lay witness testimony is permissible where the 

witness has had 'sufficient contact with the defendant to achieve a level of 

familiarity that renders the lay opinion helpful.'"). We further note that in this 
15 A-5128-18

case, unlike in Singh, no other witnesses were available to identify the person 

shown in the video recording.3 See id., 209 N.J. at 23.

We acknowledge that in the case before us, the troopers' references to the 

defendant while narrating the store security video were neither fleeting nor a 

slip of the tongue as in Singh. Rather, these references were repeated on 

multiple occasions. We emphasize, however, that defense counsel at the second 

trial made a conscious decision to not object to the trooper's references to the 

man depicted in the surveillance video as the defendant.4

 In Singh, the Court 

3

 Law enforcement was unable to contact or locate the grocery store owner to 

testify, as he had since closed his business by the time defendant was tried.

4

 During a sidebar conference, defense counsel told the trial judge:

First of all, I haven't objected to [Trooper Savnik]

characterizing the person in those photographs as the 

defendant but I believe that's for the jury to decide and I 

would like to have an instruction to them as some point 

but he didn't actually see anybody take a handgun out of 

their waist and put it on the shelf and he's testified to that 

and I don't believe that you can discern what's in that 

person’s hand in that photograph. So, he's making an 

assumption that, first of all, because he believes it's Mr. 

Ross and, second of all, that because a handgun was found 

there by the owner at some later point that that's Mr. Ross

doing it. I don't think he has sufficient knowledge to say 

that that's Mr. Ross putting that handgun on the shelf. He 

doesn't really know how that got there at all, he's making 
16 A-5128-18

"cautioned that rerunning a trial when the error could easily have been cured on 

request would reward the litigant who suffers an error for tactical advantage 

either in the trial or on appeal." 245 N.J. at 13. It also is well-settled that trial 

errors that "were induced, encouraged, or acquiesced in or consented to by 

defense counsel ordinarily are not a basis for reversal on appeal . . . ." State v. 

Corsaro, 107 N.J. 339, 345 (1987); see also State v. A.R., 213 N.J. 542, 561 

(2013) ("Mistakes at trial are subject to the invited-error doctrine."). 

We believe the judge at the second trial allowed the troopers to make 

repeated references to the person depicted in the video as "the defendant" 

because defense counsel expressly told the judge that he was refraining from 

making an objection. In these circumstances, defendant is now hard-pressed to 

rely on the number of references that were made as a basis for distinguishing 

Singh and finding reversible error. We are satisfied that the troopers' references 

to the defendant while narrating the surveillance video were not capable of 

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

an assumption based on what he learned later, that there 

was, in fact, a handgun there.
17 A-5128-18

II.

We turn next to defendant's contention the trial judge erred by failing to 

sua sponte issue a limiting instruction to the jury when the jury requested a 

playback of the store surveillance video. This contention lacks sufficient merit 

to warrant extensive discussion. R. 2:11-3(e)(2). The trial judge properly 

complied with the jury's request and played back the surveillance video 

recording in open court with both counsel present. Defense counsel did not 

object to the playback and did not request any special jury instructions.

In State v. Miller, our Supreme Court remarked,

Judges should take precautions to prevent juries from 

placing undue emphasis on the particular [audio/video] 

testimony that is replayed. . . . To that end, at the time 

the testimony is repeated, judges should instruct jurors 

to consider all of the evidence presented and not give 

undue weight to the testimony played back.

[205 N.J. 109, 123 (2011) (citing State v. Michaels, 264

N.J. Super. 579, 644–45 (App. Div. 1993)).]

Although a supplemental instruction would have been appropriate had it 

been requested, we do not believe that the failure to issue special instructions 

constitutes plain error. See State v. Wakefield, 190 N.J. 397, 473 (2007) 

(holding that under Rules 1:7-2 and 2:10-2, "the failure to object to a jury 

instruction requires review under the plain error standard"); see also State v. 
18 A-5128-18

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

(holding where a defendant does not object to the jury charge, "there is a 

presumption that the charge was not error and was unlikely to prejudice the 

defendant's case").

We stress that the playback did not involve a witness's testimony or a 

recording of a witness' statement. Cf. State v. Burr, 195 N.J. 119, 134 (2008) 

("The videotaped pretrial statement at issue [is] significantly different from a 

demonstrative exhibit. Although it is evidence, it is also testimony. It is, in 

effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape 

contains hearsay statements offered for the truth of the matter asserted."). 

Rather, the video recording in this instance was essentially a demonstrative 

exhibit. The jury was properly instructed, moreover, that it should consider all 

relevant evidence and that it was for it to decide the weight to give to evidence. 

In these circumstances, the failure to provide the jury additional instruction on 

how to consider the unnarrated surveillance video was not capable of producing 

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

III.

As we have noted, Trooper Morrison testified that as he was taking 

defendant to a holding cell, defendant remarked, "[h]ow are you going to get me 
19 A-5128-18

on some shit I did yesterday?" Defendant contends for the first time on appeal 

that the trial court erred in failing to instruct the jury to exercise caution with 

respect to defendant's statement in accordance with State v. Hampton and State 

v. Kociolek.

5

5

 State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957). 

The Model Jury Charge for statements attributed to a defendant provides in 

relevant part:

In considering whether or not an oral statement was 

actually made by the defendant, and, if made, whether 

it is credible, you should receive, weigh[,] and consider 

this evidence with caution based on the generally 

recognized risk of misunderstanding by the hearer, or 

the ability of the hearer to recall accurately the words 

used by the defendant. The specific words used and the 

ability to remember them are important to the correct 

understanding of any oral communication because the 

presence, or absence, or change of a single word may 

substantially change the true meaning of even the 

shortest sentence.

. . . .

In considering whether or not the statement is credible, 

you should take into consideration the circumstances 

and facts as to how the statement was made, as well as 

all other evidence in this case relating to this issue.

If, after consideration of all these factors, you 

determine that the statement was not actually made, or 

that the statement is not credible, then you must 
20 A-5128-18

In State v. Baldwin, we explained that Hampton "require[s] the trial court 

to instruct the jury to decide whether a defendant's out-of-court statement is 

credible only in a case where there has been a pretrial hearing involving the 

admissibility of the statement on the grounds of an alleged violation of the 

defendant's Miranda rights or involuntariness." 296 N.J. Super. 391, 397 (App. 

Div. 1997). We concluded in Baldwin that when "an alleged oral inculpatory 

statement was not made in response to police questioning, and there is no 

genuine issue regarding its contents," the court is not required to give special

cautionary instructions "because the only question the jury must determine is 

whether the defendant actually made the alleged inculpatory statement." Id. at 

401–02.

disregard the statement completely.

If you find that the statement was made and that part or 

all of the statement is credible, you may give what 

weight you think appropriate to the portion of the 

statement you find to be truthful and credible.

[Model Jury Charges (Criminal), "Statements of 

Defendant" (rev. June 14, 2010).]
21 A-5128-18

In this instance, defendant never moved to suppress the rhetorical question 

he posed to Trooper Morrison. Furthermore, although defendant was clearly in 

custody, his inculpatory utterance was not in response to police questioning.

We thus turn our attention to whether the trial judge was obligated to give 

a special cautionary instruction pursuant to the rationale undergirding Kociolek. 

The Court in Kociolek, quoting Wigmore on Evidence, §§ 1056, 2094 (3d ed. 

1940), acknowledged:

there is a general distrust of testimony reporting any 

extra-judicial oral statements alleged to have been 

made, including a party's admissions; the great 

possibilities of error in trusting to recollectiontestimony of oral utterances, supposed to have been 

heard, have never been ignored; but an antidote is 

constantly given by an instruction to the jury against

trusting overmuch the accuracy of such testimony.

[23 N.J. at 421 (internal quotation marks omitted).]

Our Supreme Court recognized that an out-of-court inculpatory statement 

purportedly made by a defendant can be "dangerous" evidence, "first, because it 

may be misapprehended by the person who hears it; secondly, it may not be 

well-remembered; thirdly, it may not be correctly repeated." Id. at 422 (citations 

omitted). 

Our decision in Baldwin addressed when a cautionary jury instruction 

must be given under the Kociolek doctrine and our analysis in that case is 
22 A-5128-18

instructive for purposes of the present appeal. The State in Baldwin presented 

evidence in a murder trial supporting the identification of the defendant as the 

assailant, including testimony from three eyewitnesses and three inculpatory 

out-of-court statements purportedly made by the defendant. Baldwin, 296 N.J. 

Super. at 395. Baldwin argued that a trial court is obligated to provide 

cautionary instructions whenever evidence of a defendant's allegedly 

inculpatory out-of-court statement is proffered. Ibid. We rejected any such per 

se rule. We concluded "the need for the kind of special cautionary instruction 

suggested in Kociolek may turn on whether there is any genuine dispute as to 

the precise contents of an alleged oral statement." Id. at 400–01. 

We have carefully reviewed the trial record in this case, including the 

opening and closing statements by defense counsel. Our review confirms that 

defendant did not contest the content or accuracy of the remark he made to 

Trooper Morrison.6

 Accordingly, the trial judge was not obligated to sua sponte 

issue a Kociolek instruction. 

Finally, we emphasized in Baldwin that there was no precedential 

authority for the proposition that the failure to give an unrequested Kociolek

6

 The record shows that the prosecutor referred to defendant's remark in his

summation. 
23 A-5128-18

instruction constitutes plain error. Id. at 400. Defendant cites no case decided 

after Baldwin holding that the failure to sua sponte provide a Kociolek

instruction rises to the level of plain error. Thus, even assuming for the sake of 

argument that it was error to fail to provide a cautionary instruction with respect 

to defendant's rhetorical remark, that failure does not rise to the level of plain 

error. See State v. Jordan, 147 N.J. 409, 430 (1997) (neither the failure to 

provide a Hampton or a Kociolek charge, whether "individually or in 

combination" constitutes plain error per se). The possibility of injustice must 

be "sufficient to raise a reasonable doubt as to whether the error led the jury to 

a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 

(1971). After carefully reviewing the entire record, we believe the trial judge's 

failure to give the unrequested instruction was not capable of producing an 

unjust result. See R. 2:10-2; Montalvo, 229 N.J. at 320.

IV.

We need only briefly address defendant's contention that his claimed trial 

errors collectively created such severe prejudice as to warrant a new trial. See

State v. Jenewicz, 193 N.J. 440, 473 (2008) ("Even when an individual error or 

series of errors does not rise to reversible error, when considered in combination, 

their cumulative effect can cast sufficient doubt on a verdict to require 
24 A-5128-18

reversal."). The fact that defense counsel made no contemporaneous objections 

to the errors now alleged on appeal "reveals that 'in the atmosphere of the trial 

the defense did not believe that the [alleged errors] were prejudicial.'" State v. 

Marks, 201 N.J. Super. 514, 534 (App. Div. 1985) (quoting State v. Wilson, 57 

N.J. 39, 51 (1970)); see also State v. Nelson, 173 N.J. 417, 471 (2002) (quoting 

Macon, 57 N.J. at 333) ("[I]t [is] fair to infer from the failure to object below 

that in the context of the trial the error was actually of no moment.") (second 

alteration in original).

The State's case hinged on the surveillance video that showed the culprit 

discarding the handgun on the store shelf. We are satisfied that none of the 

alleged trial errors prevented the jury from justly concluding that defendant was 

the person shown in that video.

V.

Finally, defendant contends the trial judge at sentencing impermissibly 

"double counted" his criminal history by using his prior convictions to invoke 

an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) and also as 

the basis for finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The risk 

that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) 

("The extent of the defendant's prior criminal record and the seriousness of the 
25 A-5128-18

offenses of which [the defendant] has been convicted"); and nine, N.J.S.A. 

2C:44-1(a)(9) ("The need for deterring the defendant and others from violating 

the law").

We begin our analysis by acknowledging that "[o]ur role in reviewing a 

sentence imposed by a trial judge is limited." State v. L.V., 410 N.J. Super. 90, 

107 (App. Div. 2009). We review only

(1) whether the exercise of discretion by the sentencing 

court was based upon findings of fact grounded in 

competent, reasonably credible evidence; (2) whether 

the sentencing court applied the correct legal principles 

in exercising its discretion; and (3) whether the 

application of the facts to the law was such a clear error 

of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996) (citing 

State v. Roth, 95 N.J. 334, 363–65 (1984)).]

To be eligible for a discretionary extended term as a persistent offender, 

a defendant must be: 

a person who at the time of the commission of the crime 

is [twenty-one] years of age or over, who has been 

previously been convicted on at least two separate 

occasions of two crimes, committed at different times, 

when he was at least [eighteen] years of age, if the latest 

in time of these crimes or the date of the defendant's 

last release from confinement, whichever is later, is 

within [ten] years of the date of the crime for which the 

defendant is being sentenced. 

[N.J.S.A. 2C:44-3(a).]
26 A-5128-18

In State v. Tillery, our Supreme Court recently considered the doublecounting argument that defendant now raises. 238 N.J. 293, 325–26 (2019). 

The defendant in that case "object[ed] to the court's 'duplicative' reliance on his 

criminal record both to deem him statutorily eligible for an extended term and 

to find aggravating factors six and nine." Ibid. The Supreme Court resolutely 

rejected that argument:

We find no error in the trial court's reliance on 

defendant's criminal record both to determine 

defendant's "persistent offender" status under N.J.S.A. 

2C:44-3(a) and to support the court's finding of 

aggravating factors three, six, and nine. Indeed, in our 

decision in [State v. Pierce, 188 N.J. 155, 168 (2006)], 

we envisioned that the defendant's criminal record may

be relevant in both stages of the sentencing 

determination. We held that "[a] sentencing court must 

first, on application for discretionary enhanced-term 

sentencing under N.J.S.A. 2C:44-3(a), review and 

determine whether a defendant's criminal record of 

convictions renders him or her statutorily eligible." If 

so, "whether the court chooses to use the full range of 

sentences opened up to the court is a function of the 

court's assessment of the aggravating and mitigating 

factors, including the consideration of the deterrent 

need to protect the public." In that crucial inquiry, 

defendant's prior record is central to aggravating factor 

six, N.J.S.A. 2C:44-1(a)(6), and may be relevant to 

other aggravating and mitigating factors as well.

Accordingly, the trial court properly considered 

defendant's criminal record in deciding defendant's 

statutory eligibility for an extended term, and in 
27 A-5128-18

weighing aggravating and mitigating factors to 

determine that such a term was warranted.

[Id. at 327–28 (internal citations omitted).]

We add that in the present case, defendant has previously been convicted 

of four qualifying convictions, any two of which would satisfy the prerequisite 

for imposing an extended term as a persistent offender. Furthermore, the trial 

judge did not commit error by considering defendant's criminal history in the 

context of multiple aggravating factors. As the Court expressly recognized in 

Tillery, a defendant's criminal history is not only relevant to the application of 

aggravating factor six, but also "may be relevant to other aggravating and 

mitigating factors as well." Id. at 328. Indeed, the Court in Tillery upheld the 

trial court's application of the defendant's criminal history in finding the very 

same aggravating factors in the present appeal. We note, finally, the judge 

imposed a prison term at the bottom of the second-degree extended term range. 

In these circumstances, defendant has not shown that the trial judge abused her 

discretion in applying and weighing the aggravating factors. Nor does the 

sentence in this case shock the judicial conscience. Roth, 95 N.J. at 365.

To the extent we have not addressed them, any remaining arguments 

raised by defendant lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). 
28 A-5128-18

Affirmed.