SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0400-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS BRACE, a/k/a

FRANCIS BRACE, JR.,

and JAZMEIR JACKSON,

Defendant-Appellant.

___________________________

Submitted October 28, 2019 – Decided

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-04-0352.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 18, 2020
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A-0400-17T4

After trial with two codefendants, Gregory Oliver and Jahmad Green, 

defendant Francis Brace appeals from his conviction by jury and sentence for 

first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-

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

3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts 

of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 

2C:39-4(a) (counts two and nine); second-degree aggravated assault of Alaysia 

Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree 

attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-

3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b) (count three). Both victims were shot in an early-morning incident 

on August 31, 2014. The State alleged defendant and his codefendants shot at a 

gold Ford Taurus from which shots were also fired. Burroughs was shot in the 

head and pronounced dead on the sidewalk where he fell. Chambers, who was 

seated in Brace's BMW in which he had earlier picked her up, was also shot in 

the head; she survived her wound. Neither of the victims were the intended 

targets of the shootings.

On appeal, defendant argues:

POINT I
3

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THE VERDICT OF AGGRAVATED 

MANSLAUGHTER WAS NOT SUPPORTED BY 

THE EVIDENCE AND SHOULD IN THE INTEREST 

OF JUSTICE BE SET ASIDE, AND DEFENDANT 

WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL DUE TO TRIAL COUNSEL'S FAILURE 

TO MOVE TO SET ASIDE THE VERDICT. 

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A 

FAIR TRIAL WHEN THE STATE PUBLISHED TO 

THE JURY A GRUESOME PHOTOGRAPH OF THE 

HOMICIDE VICTIM, PARTICULARLY WHERE 

THAT EXHIBIT WAS LATER RULED 

INADMISSIBLE UNDER N.J.R.E. 403.

POINT III

THE COURT ERRED IN WEIGHING THE 

AGGRAVATING SENTENCING FACTORS, AND 

THEREFORE THE SENTENCE OF [TWENTYSEVEN] YEARS WAS MANIFESTLY EXCESSIVE.

POINT IV

THE COURT ERRED IN SENTENCING . . . 

DEFENDANT TO CONSECUTIVE SENTENCES BY 

MISAPPLYING THE GUIDELINES SET FORTH IN 

STATE V. YARBOUGH.

1

For the reasons we now discuss, we affirm.

I.

1

 100 N.J. 627 (1985).
4

A-0400-17T4

Defendant moved for and was denied a directed verdict after the State 

rested its case. Defendant now contends counsel was ineffective for failing to 

renew the motion pursuant to Rule 3:18-2 following the guilty verdict because 

the trial judge would have vacated his conviction for aggravated manslaughter 

had the issue been presented. Specifically, defendant submits there was no 

evidence he recklessly "caused" Burroughs's death within the strictures of 

N.J.S.A. 2C:11-4(a)(1),

2

and codefendant Oliver admitted to shooting 

2

 N.J.S.A. 2C:11-4(a) provides:

Criminal homicide constitutes aggravated 

manslaughter when:

(1) The actor recklessly causes death under 

circumstances manifesting extreme indifference 

to human life; or

(2) The actor causes the death of another person 

while fleeing or attempting to elude a law 

enforcement officer in violation of subsection b. 

of N.J.S.[A.] 2C:29-2. Notwithstanding the 

provision of any other law to the contrary, the 

actor shall be strictly liable for a violation of this 

paragraph upon proof of a violation of subsection 

b. of N.J.S.[A.] 2C:29-2 which resulted in the 

death of another person. As used in this 

paragraph, "actor" shall not include a passenger 

in a motor vehicle.
5

A-0400-17T4

Burroughs in the eye. Accordingly, defendant maintains this court should find 

plain error and vacate his conviction of the manslaughter charge.

Claims of ineffective assistance of counsel are not typically reviewed on 

direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely 

decline to entertain ineffective-assistance-of-counsel claims on direct appeal 

because those claims 'involve allegations and evidence that lie outside the trial 

record.'" (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." State v. Castagna, 187 N.J. 293, 313 (2006).

As the record in this case reveals, defendant's counsel moved for a 

judgment of acquittal, R. 3:18-1, after the State rested. The trial judge denied 

the motion. If counsel had moved under Rule 3:18-2, the trial judge would have 

applied the same standard

as that which applies when a motion for acquittal is 

made at the close of the State's case or at the end of the 

entire case. The trial judge must decide whether the 

evidence is sufficient to warrant a conviction. More 

specifically, the trial judge must determine whether the 

evidence, viewed in its entirety, be it direct or 

circumstantial, and giving the State the benefit of all of 

its favorable testimony as well as all of the favorable 

inferences which reasonably could be drawn therefrom, 

is sufficient to enable a jury to find that the State's 
6

A-0400-17T4

charge has been established beyond a reasonable doubt. 

On such a motion the trial judge is not concerned with 

the worth, nature or extent (beyond a scintilla) of the 

evidence, but only with its existence, viewed most 

favorably to the State. 

[State v. Kluber, 130 N.J. Super. 336, 341-42 (App. 

Div. 1974) (citations omitted).]

Under that lens, the record also reveals sufficient evidence to support a 

jury's finding that the State proved beyond a reasonable doubt that defendant 

was guilty of aggravated manslaughter as Oliver's accomplice. A person is an 

accomplice of another if: "[w]ith the purpose of promoting or facilitating the 

commission of the offense; he (a) [s]olicits such other person to commit it; [or]

(b) [a]ids or agrees or attempts to aid such other person in planning or 

committing it." N.J.S.A. 2C:2-6(c)(1).3

Bianca Reeves testified at trial that she, defendant, Oliver, Chambers and 

another woman named Aniya were "riding around" in defendant's BMW when 

they were fired upon. She further testified as to her perceptions that evening. 

Defendant and Oliver "called [their] friends and they left" with the five or more

friends who came to the codefendants' location. Later, after defendant called 

3

 The statute also provides a third avenue of accomplice liability, not applicable 

here: "(c) [h]aving a legal duty to prevent the commission of the offense, fails 

to make proper effort so to do." N.J.S.A. 2C:2-6(c)(1).
7

A-0400-17T4

for his car to be brought to him, Chambers drove it to a location at which 

defendant, Oliver and "a lot of other people" congregated. About five or ten 

minutes after Oliver used the keys to access the BMW's trunk, Reeves heard 

gunshots. After the shooting ended, Reeves discovered Chambers had been shot. 

Defendant, upon seeing Chambers, said, "I can't believe these dumb[-]ass 

niggers shot her her fucking head."4 Defendant left with his friends.

During their investigation of the shootings, Paterson police detectives 

twice interviewed Jocelyn Suggs. Video recordings of both interviews—the 

first, four days after the shooting and the second on December 3, 2014—were 

admitted into evidence and played for the jury.5 In the statements, Suggs 

explained to the detectives that a large crowd of people had congregated in the 

area around a parked BMW in which Chambers sat prior to the shooting. Suggs 

was warned there was going to be a shooting. She placed defendant at the scene, 

at the side of the BMW, and described defendant as Chambers's boyfriend.

Someone retrieved a gun from the BMW's interior. The first shots were fired 

4

 The trial transcript indicates Reeves twice repeated the double "her" used in 

her quotes of defendant.

5

 The statements were admitted as inconsistent statements under N.J.R.E. 

803(a)(1), per the trial judge's ruling after conducting a hearing pursuant to State 

v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), aff'd, 121 N.J. 1 (1990).
8

A-0400-17T4

from the gold Taurus as it drove by the group gathered near the BMW. Suggs

observed defendant return fire with the smaller of the guns used. She told 

detectives an individual named Jahmad was at the scene, and that she heard him 

state that he had a gun. Suggs also told detectives a week or two after the 

shooting, she heard Oliver state that he "shot him in the eyeball."

Under those circumstances, where the evidence suggests defendant and 

Oliver had been together all evening, been shot at, left with "friends" and were 

together when fired upon a second time, whereafter defendant was seen firing a 

gun, and Oliver also admitted shooting Burroughs in the eye during the gunfight, 

there was sufficient evidence for the jury to find beyond a reasonable doubt that 

defendant either solicited Oliver to shoot Burroughs, or aided or agreed or 

attempted to aid him in planning or committing aggravated manslaughter, or 

both. We thus determine a motion presented pursuant to Rule 3:18-2 would 

have been denied.

As such, defense counsel was not ineffective under the dual-pronged test 

formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted 

by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). Because there 

was enough evidence presented to thwart a Rule 3:18-2 motion, defendant 

cannot establish his counsel "made errors so serious that counsel was not 
9

A-0400-17T4

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," ibid.

(quoting Strickland, 466 U.S. at 687), especially considering that defendant 

must overcome the "'strong presumption' that counsel exercised 'reasonable 

professional judgment' and 'sound trial strategy' in fulfilling his 

responsibilities," Hess, 207 N.J. at 147 (quoting Strickland, 466 U.S. at 689-90). 

For the same reason, defendant cannot demonstrate the second prong: "a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Castagna, 187 N.J. at 315 (quoting 

Strickland, 466 U.S. at 694). We discern no reason to set aside the jury's verdict.

II.

Defendant next contends he was denied the right to a fair trial because a 

color6crime scene photograph depicting Burroughs, lying dead in a pool of 

blood, was twice shown to the jury, and because the prosecutor later told the 

jury in summation that Burroughs "died in a halo, a bloody halo of his own 

blood." The photo, which apparently was shown on a screen visible to the jury, 

was identified by two officers who each testified that it depicted Burroughs as 

they found him at the scene. None of the defense counsel objected when the 

photo was displayed to the jury during each officer's testimony. Only when the 

6

 The record contains only a black and white copy of the photograph.
10 A-0400-17T4

State moved the photo into evidence with numerous other exhibits, did all three 

defense counsel object. The trial judge ruled the photo inadmissible because the 

prejudice it engendered outweighed its probative value.

Defendant argues the display of the "gruesome" photo was unduly 

prejudicial and deprived defendant of a fair trial because it served no purpose 

other than to inflame the jury's passion. According to defendant, this error was

especially prejudicial because of the alleged dearth of evidence supporting his 

conviction.

Because no objection was made, we will not reverse unless the error was 

"clearly capable of producing an unjust result," R. 2:10-2; that is, unless there 

is 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). We do not 

perceive that to be the case.

The record reveals the photo was briefly displayed during each officer's 

testimony before the prosecutor moved on to another exhibit. The first officer 

testified the photo depicted "the male that we found on the corner who was shot"; 

and confirmed that the condition of the man in the photo was as the officer found 

him. When the second officer was shown the photo, he was asked, "Is this what
11 A-0400-17T4

Mr. Burroughs looked like when you arrived at the scene?" He simply 

responded affirmatively.

During an in-chambers colloquy among counsel and the judge prior to the 

redirect examination of the first officer, the judge commented, "[w]ith regard to 

the pictures that were published, . . . my . . . assumption that . . . if I didn't hear 

any objection, which means you're fine with them. And do me a favor. If there 

are pictures that are going to be published . . . just make sure you guys are all in 

agreement." The prosecutor responded that he spoke to defense counsel about 

the photographs in advance and "told them if you're going to have any objection 

to publish[ing] them[,] . . . let me know."

We also discern that in the judge's final jury charge, when discussing "the 

evidence that [the jury] may consider in judging the facts of this case," he told 

the jury that the term, evidence, included "any exhibits that have been admitted 

into evidence," and that "any exhibit that has not been admitted into evidence 

cannot be given to you in the jury room even though it may have been marked 

for identification. Only those items admitted into evidence can be given to you."

The jury is presumed to have followed that instruction. See State v. Loftin, 146 

N.J. 295, 390 (1996) ("That the jury will follow the instructions given is 

presumed.").
12 A-0400-17T4

Under those circumstances, the brief display of the photo, albeit twice, 

was not clearly capable of causing an unjust result, leading the jury to an 

outcome it might not have otherwise reached.

Further, the prosecutor's remarks were untethered to the photograph. 

Although defendant ascribes the prosecutor's description to the photo, the 

prosecutor did not mention it. We also note the prosecutor's statement could 

have been fair comment on the first officer's testimony that, upon arrival at the 

crime scene, he "saw a male down on the sidewalk bleeding heavily." He 

described the victim's condition as "laying face up on the sidewalk bleeding 

from his head." "Prosecutors are afforded considerable leeway in closing 

arguments as long as their comments are reasonably related to the scope of the 

evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). "Generally, if no 

objection was made to the improper remarks, the remarks will not be deemed 

prejudicial." Id. at 83.

We, therefore, find meritless defendant's contention that he was deprived 

of a fair trial because the photo was twice displayed.

III.

Defendant was sentenced to a twenty-year prison term, subject to an 

eighty-five percent period of parole ineligibility pursuant to the No Early 
13 A-0400-17T4

Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of 

aggravated manslaughter; a seven-year concurrent term for unlawful possession 

of a weapon; and a consecutive seven-year sentence, also subject to a NERA 

parole ineligibility period, for aggravated assault.

The trial judge applied aggravating factors one, three, six and nine, 

N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), to all counts, and applied aggravating 

factor two, N.J.S.A. 2C:44-1(a)(2), separately, to the aggravated assault charge.

The court attributed "medium weight" to aggravating factor one, "[t]he 

nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), noting the 

shots were fired at a moving target—the Taurus—in the dark in a residential 

neighborhood, when numerous young people congregated. The judge 

concluded: "the senseless nature of the shooting and the fact that . . . defendants

fled the scene . . . leads this [c]ourt to find that the aggravated manslaughter and 

the aggravated assault were committed in a depraved manner."

With respect to the aggravated assault of Chambers, the court attributed 

"somewhat low weight" to aggravating factor two, "[t]he gravity and seriousness 

of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), due to the severity of 

the injury she suffered. The judge acknowledged defendant remained on the 
14 A-0400-17T4

scene to ensure paramedics were called, but also noted defendant fled the scene 

before they arrived.

The judge gave "medium weight" to aggravating factor three, "[t]he risk 

that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), 

recognizing defendant had accumulated a criminal record consisting of six prior 

arrests, two municipal court convictions and a felony conviction, as well as 

defendant's lack of employment history and substance abuse. The judge also 

noted various witnesses mentioned defendant's affiliation with a local street 

gang;7 but acknowledged he did not have any: "independent evidence or 

substantial evidence as to the extent of . . . defendant's involvement[.]" 

Accordingly, the judge gave "minimum to low weight" to defendant's gang 

affiliation in his analysis of aggravating factor three.

Defendant argues the judge improperly found aggravating factor one,

because the jury—in acquitting defendant of murder and attempted murder, but 

convicting on the lesser-included charges—concluded the injuries to Burroughs 

and Chambers were unintentional; and "there was no intentional infliction of 

any additional pain or suffering." Defendant also asserts the trial judge should 

7

 A pretrial ruling barred the prosecutor from mentioning defendant's gang 

affiliation at trial.
15 A-0400-17T4

not have considered evidence of gang affiliation because the judge

acknowledged a lack of independent evidence of defendant's gang involvement. 

In addition, defendant argues the judge misapplied State v. Carey, 232 N.J. 

Super. 553 (App. Div. 1989), in considering evidence of gang affiliation that 

was not admitted at trial.

Applying a deferential standard of review to the judge's sentencing 

determination, we find no error in the judge's identification and balance of the 

"aggravating and mitigating factors that are supported by competent credible 

evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State 

v. Lawless, 214 N.J. 594, 606 (2013)).

Recognizing the judge's application of aggravating factor one "must be 

based on factors other than the death of the victim and the circumstances 

essential to support a finding that the defendant has acted with extreme 

indifference to human life," State v. Fuentes, 217 N.J. 57, 76 (2014), we 

conclude the judge properly analyzed facts that went beyond the essential 

elements of the crime. Multiple shots were fired in the dark at a moving target 

in a residential neighborhood in an area populated by numerous bystanders. This 

combination of facts transcends the requisite basis for reckless indifference and

buttresses the application of aggravating factor one. Defendant placed 
16 A-0400-17T4

numerous people at risk of bodily injury or death by wantonly and repeatedly 

firing. See Lawless, 214 N.J. at 609-10 ("[C]ourts applying aggravating factor 

one focus on the gravity of the defendant's conduct, considering both its impact 

on its immediate victim and the overall circumstances surrounding the criminal 

event.").

We determine the remainder of defendant's sentencing arguments to be 

without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). 

We note only that the judge credited the testimony of several witnesses about 

defendant's involvement in a local gang, and who "testified that [the] shooting 

was a retaliation and a response to gang activity," in finding defendant's gang 

affiliation. See State v. Smith, 262 N.J. Super. 487, 530 (App. Div. 1993) 

("[S]entencing judges may consider material that otherwise would not be 

admissible at trial, as long as it is relevant and trustworthy."). The judge 

attributed only "minimum to low weight" to that affiliation because there was 

no evidence establishing the extent of defendant's involvement. Further, the 

presentence report contained the following: "During the course of the 

investigation detectives ascertained that members of a local street gang named 

'Brick Squad' were involved in this incident. Two members of the gang; Francis 

Brace AKA Fat Fat and Jahmad Green . . . were identified as suspects." 
17 A-0400-17T4

Moreover, defendant's lengthy record alone warranted the "medium weight" the 

judge attributed to aggravating factor three.

Finally, the judge properly applied the Yarbough8factors in imposing a 

consecutive sentence for the aggravated assault of Chambers. As the judge 

noted, Burroughs and Chambers were in "two separate locations" when they

were shot; Chambers was seated inside the BMW, and Burroughs was shot "on

the sidewalk some ways away." Accordingly, the judge concluded, "[t]o issue 

8

 In Yarbough, 100 N.J. at 644, the Court delineated factors upon which a 

sentencing court should focus in determining whether a sentence should run 

concurrent or consecutive:

(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;

(e) the convictions for which the sentences are to be 

imposed are numerous.
18 A-0400-17T4

concurrent sentences would not adequately take into account the distinct nature 

of the two harms inflicted by these defendants."

"[A] trial court has the discretion to impose consecutive sentences in cases 

where . . . the only factor supporting consecutive sentencing is multiple victims." 

State v. Molina, 168 N.J. 436, 442 (2001). "Although that principle resonates 

most clearly in cases in which a perpetrator intentionally targets multiple victims

. . . it also applies to cases in which, as here, the defendant does not intend to 

harm multiple victims but it is foreseeable that his or her reckless conduct will 

result in multiple victims." State v. Carey, 168 N.J. 413, 429 (2001).

We perceive no violation of the sentencing guidelines; the aggravating 

and mitigating factors found by the judge were based upon credible evidence in 

the record; and the sentence imposed for these multiple crimes is not "clearly 

unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70 

(quoting State v. Roth, 95 N.J. 334, 365 (1984)).

Affirmed.