RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4276-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKEEM O. WILLIAMS, a/k/a

HAKEEM BRIAN WILLIAMS, 

HAKEEM O. BRIAN WILLIAMS, 

HAKEEM GOLDSMITH, and

HAKEEN WILLIAMS,

Defendant-Appellant.

_____________________________

Submitted February 25, 2020 – Decided May 5, 2020

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Salem County, Indictment No. 17-01-0029.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Susan Brody, Assistant Deputy Public 

Defender, of counsel and on the briefs).

John T. Lenahan, Salem County Prosecutor, attorney 

for respondent (David M. Galemba, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM 

A man, his girlfriend, and their one-year old son were driving together in 

a car, when the man, who was driving, stopped the car to speak with another

man walking on the street. The pedestrian pulled out a gun, shot the driver four 

times, and took the car with the infant still in the backseat.

A jury convicted defendant Hakeem Williams of first-degree murder of 

the driver, N.J.S.A. 2C:11-3(a)(1); first-degree kidnapping of the son, N.J.S.A. 

2C:13-1(b)(1); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

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

5(b)(1); second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a)(1); third-degree theft of a motor vehicle, N.J.S.A. 2C:20-

10(c); and fourth-degree reckless endangering another, N.J.S.A. 2C:24-

7.1(a)(2). Defendant was sentenced to an aggregate prison term of fifty years,

with periods of parole ineligibility.

Defendant appeals his convictions and sentence, arguing that there were 

evidentiary errors at his trial and the sentence was excessive because three of 

the prison terms were run consecutively. Discerning no reversible error, we 

affirm the convictions and sentence. 
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I.

We take the facts from the evidence at trial. On the afternoon of July 9, 

2016, J.I., his girlfriend, Y.T., and their one-year-old son were driving together 

in a Jetta Volkswagen.1 J.I. was driving and the couple was looking at 

neighborhoods in Penns Grove where they were considering buying a home. As 

they drove down a street, they saw a man walking in the opposite direction and 

J.I. turned the car around to speak with the man. At trial, the girlfriend explained 

that J.I. thought the man had given him a strange look. As the men were 

speaking, the girlfriend told J.I. she thought the man had a gun. The man then 

pulled out a gun and started shooting at J.I. 

The girlfriend got out of the car and J.I. followed her through the front 

passenger seat door. J.I. then collapsed on the sidewalk. As the girlfriend was 

attending to J.I., she saw the man get into their car and drive away with their son 

still in the backseat. 

Shortly after the shooting, police officers responded to the scene. The 

girlfriend explained what happened and that she did not know the shooter. She 

then described the shooter as a heavy-set black man with big eyes, who was 

1

 We use initials or descriptions for the victim and witnesses to protect their 

privacy interests. 
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approximately five feet six inches to five feet seven inches tall. Some of the 

events at the scene were recorded on a motor vehicle recording (MVR) system

on one of the police vehicles. 

J.I. was taken to a hospital where he was pronounced dead. An autopsy 

revealed that he had been shot four times, and a medical examiner testified J.I. 

died as a result of his gunshot wounds. Police recovered three bullet casings at 

the scene. 

The Jetta was found later that same evening. A woman saw the car parked 

on a street in Philadelphia with its engine running. She noticed a child asleep 

in the backseat, after observing the car for several minutes, she called the police. 

When the police responded they found that the child was unharmed and he was 

returned to the girlfriend, his mother. 

That same night the girlfriend was shown a photo array containing six 

photographs. The photo array was administered by a detective who was not 

involved in the investigation and the procedure was video recorded and played 

for the jury at trial. The girlfriend identified a photograph of defendant as the 

man who had shot her boyfriend and taken her car and child.

At trial the girlfriend also identified defendant as the shooter and the man 

who had taken her car and child. On cross-examination the girlfriend revealed, 
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apparently for the first time, that when she first came into the office at the police 

station where the array was conducted, she saw a picture that looked like 

defendant sitting on the side on a table. The girlfriend went on to testify that 

she told a police officer that the photograph looked like the "guy."

Defense counsel contended that the identification should be excluded; 

accordingly, the trial court conducted an evidentiary hearing outside the 

presence of the jury. At that hearing, the girlfriend was shown a portion of the

video of her photo identification and she testified that she was unsure where 

exactly she saw the "side" photo. 

The detective who conducted the photo array also testified during the 

evidentiary hearing. He explained that there were no other photographs on his 

desk when the girlfriend entered the office and he was unaware of any other 

photographs of defendant being in the room at the time that the photo array was 

conducted. He also testified that the girlfriend never mentioned seeing 

defendant depicted in a photograph other than the photograph presented in the 

array.

The sergeant who prepared the photo array also testified at the evidentiary 

hearing. He explained that he placed the photographs in a folder and handed it 
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to the detective who conducted the array and that the girlfriend never mentioned 

seeing another photograph depicting defendant. 

After hearing that testimony, the trial court found that there was no 

evidence that any law enforcement officer showed the girlfriend a photograph 

prior to the photo array. In that regard, the trial court found that the evidence 

did not establish that the girlfriend saw a photograph of defendant before being 

presented with the photographs in the photo array. Accordingly, the trial court 

allowed the testimony concerning the girlfriend's out-of-court and in-court 

identification of defendant to stay in evidence. 

At trial the State also called another witness, A.G., to support the 

identification of defendant as the shooter. A.G. testified that on the day of the 

shooting she was visiting a friend's house near where the shooting took place. 

She explained that she was introduced to a heavy-set black man who she 

identified as defendant at trial. A.G. went on to testify that approximately 

fifteen minutes after defendant left the house she was visiting, she heard 

gunshots. 

As part of its case, the State also played the MVR video of the scene 

following the shooting. The MVR video was admitted into evidence after an 

officer testified that it accurately reflected what he observed at the scene. 
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The video was played for over an hour in two segments. The first segment 

lasted approximately thirty-seven minutes. The video depicted the visibly 

distressed girlfriend stating that the assailant had taken her "baby" and imploring

the police officer to pray for her son. 

After the first portion of the video was paused, defense counsel requested 

a side bar. Counsel then, for the first time, contended that the remainder of the 

video should be excluded from evidence as prejudicial. The State countered that 

the jury should be allowed to see the entire video because a storm prevented law 

enforcement from taking pictures of the crime scene. The court denied 

defendant's application and ruled that the jury would be allowed to see the entire 

MVR video. 

In the second portion of the video the girlfriend was again depicted and 

heard to repeatedly ask for her son to be brought back. Also, an unidentified 

speaker can be heard saying a prayer for the girlfriend and her son. 

After seeing the entire MVR video, the trial court informed counsel that 

it would give the jury a limiting instruction concerning the video. The court

then instructed the jury to disregard statements or comments made by people 

who had not yet testified in court. The court also instructed the jury to disregard 

any expressions of sympathy for the girlfriend and the child and that their 
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decision was to be based only on the evidence presented in the court room and

not on sympathy. 

After hearing the evidence at trial, the jury found defendant guilty of firstdegree murder, first-degree kidnaping, third-degree endangering the welfare of 

a child, second-degree unlawful possession of a weapon, second-degree 

possession of a weapon for an unlawful purpose, third-degree theft of a motor 

vehicle, and fourth-degree endangering another person.

Thereafter, the court sentenced defendant. The conviction for possession 

of a weapon for an unlawful purpose was merged with the murder conviction 

and the convictions for endangering the welfare of a child and reckless 

endangerment were merged with the kidnaping conviction. On the murder 

conviction, defendant was sentenced to thirty years in prison with thirty years 

of parole ineligibility. On the kidnapping conviction, he was sentenced to 

fifteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

On the conviction for unlawful possession of a weapon, defendant was sentenced 

to five years in prison with forty-two months of parole ineligibility. Finally, on 

the conviction for theft of a motor vehicle, defendant was sentenced to three 

years in prison. The prison terms for the convictions of murder, kidnaping, and 

unlawful possession of a weapon were run consecutively and the prison term for 
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the conviction for theft of a motor vehicle was run concurrently to the other 

prison terms. Consequently, the aggregate sentence was for fifty years in prison 

with over forty-five years of parole ineligibility. 

Defendant filed this appeal. Shortly thereafter, the trial court filed a 

written memorandum amplifying its sentencing decision. See R. 2:5-1(b).

II.

On appeal, defendant presents five arguments for our consideration:

POINT I - DEFENDANT WAS DEPRIVED OF HIS

CONSTITUTIONAL RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL BY THE JUDGE'S DECISION 

TO PERMIT THE PROSECUTOR TO PLAY FOR 

THE JURY THE ENTIRE HOUR-PLUS MV 

RECORDING OF THE CRIME'S AFTERMATH AT 

THE SCENE. 

POINT II - THE PROSECUTOR'S ACTS OF 

PROFESSIONAL MISCONDUCT DURING HIS 

OPENING AND SUMMATION DEPRIVED 

DEFENDANT OF HIS RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL. 

POINT III - THE KIDNAPPING CONVICTION 

MUST BE VACATED BECAUSE THE STATE 

FAILED TO ESTABLISH AN ESSENTIAL 

ELEMENT OF THE OFFENSE. 

POINT IV - THE FAIRNESS OF THE TRIAL WAS 

IRREPARABLY DAMAGED BY THE COURT'S 

REFUSAL TO EXCLUDE [THE GIRLFRIEND'S] INCOURT AND OUT-OF-COURT IDENTIFICATIONS 

OF DEFENDANT. 
10 A-4276-17T2

POINT V - THE COURT ERRED IN IMPOSING 

THREE CONSECUTIVE TERMS IN VIOLATION OF 

THE APPLICABLE SENTENCING PRINCIPLES.

We are not persuaded by any of these arguments and we will address them in 

turn.

1. The MVR Video

Defendant argues that it was prejudicial error to allow the MVR video to 

be played for the jury. In particular, he challenges the playing of the second 

portion of the video after defense counsel raised an objection. 

We review rulings on the admissibility of evidence for abuse of discretion. 

State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 

18, 31 (2007)). Only those evidentiary rulings that are "so wide [of] the mark 

that a manifest denial of justice resulted" should be reversed. Griffin v. City of

E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 

N.J. 480, 492 (1999)). When no objection is made, we review for plain error 

and reverse only if the error is "clearly capable of producing an unjust result."

Rose, 206 N.J. at 157 (quoting R. 2:10-2).

Neither the State nor defense counsel made a pre-trial motion concerning 

the admissibility of the MVR video. Instead, the State introduced the MVR 

video during the testimony of a police officer who responded to the shooting
11 A-4276-17T2

scene. The State contended that the video recording was relevant to show the 

crime scene and to hear the girlfriend's description of the shooter. Defense 

counsel made an authenticity objection, which was overruled, and the MVR 

video was introduced into evidence. 

The video was then played for the jury in two segments. The first segment 

ran for approximately thirty-seven minutes. During that segment the video 

showed, among other things, (1) the officer's arrival; (2) the girlfriend 

explaining what happened and describing the shooter; (3) the girlfriend 

recognizing that her boyfriend had no pulse and had died; and (4) the girlfriend 

repeatedly asking the police to find her baby and to pray for the safety of the 

child.

The video was then paused, and the trial judge asked the jury if they 

wanted to take a break, which they declined. Defense counsel then requested a 

side bar and there argued that no more of the video should be shown because it 

would be prejudicial and cumulative. In response, the State contended that the 

video was already in evidence and the jury should be allowed to see the entire 

video because it depicted the crime scene. In that regard, the State argued that 

the scene had not been extensively photographed because a storm arrived and 

therefore the video was probative evidence. 
12 A-4276-17T2

The trial judge noted that no pre-trial motion concerning the video had 

been made and she had not reviewed the rest of the video. The judge then ruled 

that because the video was already in evidence, the remainder of the video could 

be played for the jury. 

Accordingly, the second segment of the video, which was approximately 

fifty minutes long, was played. That portion of the video showed or recorded 

(1) police and the girlfriend discussing the search for the child; (2) concern for 

the safety of the child; and (3) an unidentified speaker saying a prayer for the 

girlfriend and the child.

After the entire video had been played, the trial judge, outside the presence 

of the jury, informed counsel that she would give a limiting instruction 

concerning the MVR video. The judge and counsel then agreed upon an 

instruction and the judge read that instruction to the jury. The judge directed 

the jury to disregard any comments by unidentified individuals or police officers 

who had not testified in court. The judge also instructed the jury to disregard 

any comments based on sympathy and to decide the case based only on the facts 

as they found them from the evidence and testimony presented at trial. 

Specifically, the jury was instructed as follows: 
13 A-4276-17T2

This morning, you viewed a DVD recording of 

images from the MVR, or motor vehicle recorder, of 

Patrolman Hemple's vehicle.

This recording, which occurred at the scene of the 

crime, included comments by not only Patrolman 

Hemple and . . . the girlfriend of the victim. 

But also by other officers, both identified and 

unidentified, about the crime scene or the ongoing 

investigation. There were comments made by 

unidentified individuals, who were not officers.

You are the judges of the facts. One of the things 

you will consider in deciding the facts is the credibility 

of the witnesses who appear before you. 

At this point in the trial, you have heard the 

testimony of just two witnesses; Patrolman Hemple and 

Patrolman Spinelli.

To the extent that you heard other officers or 

individuals speak on the recording, you should 

disregard statements or comments made by them until 

such time as you have had an opportunity to hear them 

testify in this courtroom. Only then can you fully 

consider their statements and their credibility.

Second; the recording also included comments by 

officers and other individuals, expressing sympathy for 

[the girlfriend] and concern for her child. 

While those events are part of the DVD that is in 

evidence, you are instructed that your ultimate decision 

in this case must be based upon the facts that you find 

from the testimony and evidence presented in this 

courtroom. Your decision may not be based upon 

sympathy.
14 A-4276-17T2

You are instructed to disregard any comments or 

statements contained in the DVD, which were not 

factual in nature but were instead expressions of 

sympathy or concern.

As already noted, there was no objection to playing the first portion of the 

video. We discern no plain error in the playing of the first portion of the video, 

particularly considering the judge's limiting instruction. The video had some 

probative value in depicting the crime scene. It also had the potential to appeal

to the jury's sympathies. The limiting instruction, however, addressed that

potential prejudice. Accordingly, the record does not reflect that the video was

unduly prejudicial. Moreover, the record does not reflect that the playing of the 

first portion of the video was capable of producing an unjust result. See R. 2:10-

2.

We also discern no abuse of discretion in the playing of the second portion 

of the MVR video. The better practice may have been for the trial judge to have 

taken a recess and reviewed the remaining portion of the video before it was 

played for the jury. Nevertheless, the record does not demonstrate that the 

second portion of the video was unduly prejudicial. "Evidence claimed to be 

unduly prejudicial is excluded only when its 'probative value is so significantly 

outweighed by [its] inherently inflammatory potential as to have a probable 

capacity to divert the minds of the jurors from a reasonable and fair evaluation'
15 A-4276-17T2

of the issues in the case." Griffin, 225 N.J. at 421 (alteration in original) 

(citations omitted). Again, the trial judge's instruction to the jury limited the 

prejudicial impact of the full MVR video. The jurors were instructed to 

disregard statements or depictions that played on their sympathy and they were 

expressly instructed to base their determinations on the evidence at trial. 

As part of the challenge to the playing of the MVR video, defendant 

argues that the video functioned as a preemptive attempt to bolster the credibility 

of the girlfriend in violation of Rule 607. Rule 607 states that a "prior consistent 

statement shall not be admitted to support the credibility of a witness, except to 

rebut an express or implied charge against the witness of recent fabrication or 

of improper influence or motive and except as otherwise provided by the law of 

evidence." Defense counsel did not make this argument at trial and again, we 

review it for plain error. See State v. Nunez, 436 N.J. Super. 70, 76 (App. Div. 

2014). Having reviewed the MVR video and the testimony of the girlfriend, we 

discern no plain error. 

Finally, defendant argues that his trial counsel was ineffective in failing 

to file a pre-trial motion to exclude the MVR video and that we should remand 

for a new trial. We decline to consider this argument as part of this direct appeal. 
16 A-4276-17T2

We generally do not hear ineffective assistance claims on direct appeal because 

the claim ordinarily "involve[s] allegations and evidence that lie outside the trial 

record." State v. Hooper, 459 N.J. Super. 157, 175 (App. Div. 2019) (quoting 

State v. Castagna, 187 N.J. 293, 313 (2006)). Such ineffective assistance claims 

are "particularly suited for post-conviction review because they often cannot 

reasonably be raised in a prior proceeding." Id. at 174-75 (quoting State v. 

Preciose, 129 N.J. 451, 460 (1992)). 

2. The Alleged Misconduct by the Prosecutor

Defendant contends that the assistant prosecutor engaged in misconduct 

that deprived him of a fair trial. He points to three types of statements and 

arguments made by the prosecutor during his opening and closing statements. 

First, defendant argues that the prosecutor misrepresented the roles of counsel 

by glorifying the prosecutor's role and diminishing the role of defense counsel. 

Second, he asserts that the prosecutor improperly flattered the jurors to win them 

over as allies. Finally, he contends that the prosecutor invited the jury to identify 

with the girlfriend and to sympathize with the trauma she experienced. 

Prosecutors are afforded reasonable latitude during openings and closings. 

State v. R.B., 183 N.J. 308, 330 (2005) (citation omitted); State v. Williams, 113 

N.J. 393, 447 (1988) (citations omitted). Nevertheless, prosecutors must 
17 A-4276-17T2

"confine their comments to evidence revealed during the trial and reasonable 

inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 

(2001). When considering claims of prosecutorial misconduct, we first 

determine whether misconduct occurred, and if so, whether it deprived the 

defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 446 (2007) (quoting 

Smith, 167 N.J. at 181). Accordingly, even when a prosecutor's comments 

constitute misconduct, reversal of a defendant's conviction is not justified unless 

the comments were "so egregious . . . [they] deprived [the] defendant of a fair 

trial." State v. McGuire, 419 N.J. Super. 88, 139 (App. Div. 2011) (quoting 

State v. Ramseur, 106 N.J. 123, 322 (1987)).

We also consider whether defense counsel made a timely objection. 

Smith, 167 N.J. at 181-82 (citations omitted). If no objection was made, usually 

the remarks will not be deemed prejudicial. State v. Frost, 158 N.J. 76, 83 

(1999) (citing Ramseur, 106 N.J. at 323). In such circumstances, we look for 

plain error and will only reverse if there is a "reasonable doubt as to whether the 

error led the jury to a result that it otherwise might not have reached." State v. 

Feal, 194 N.J. 293, 312 (2008) (quoting State v. Daniels, 182 N.J. 80, 102 

(2004)).
18 A-4276-17T2

Defendant first complains about the prosecutor's misstatements 

concerning the roles of counsel. In his opening statement the prosecutor told 

the jury:

Now, the purpose of my opening statement is to 

give you a brief outline of what you can expect to hear 

the next few days and also give you a general

description of what the different roles of the people in 

this courtroom are.

Now, there's you, the jury . . . [defense counsel] 

and myself. We are the . . . main parties in this game 

or in this trial. 

Now, [defense counsel] is a well-respected

attorney. He's experienced and someone that I hold in 

high regard. His job simply is to advocate passionately 

and strenuously for his client. 

His job is to serve as the mouthpiece for his 

client, to give you arguments as to why he believes his 

client is [innocent].

Another person in the courtroom is myself, the 

Assistant Prosecutor. Now, a lot of people think my job 

is difficult but to be quite frank with you, my job is not. 

It's pretty simple. 

My job is simply to present the evidence to you 

and present the witnesses to you, that led to these 

charges. My job is not to punish Hakeem Williams. 

My job is not to convict Hakeem Williams. 

My job is simple. I just present the evidence, I 

present the witnesses and it's for you to consider.
19 A-4276-17T2

We agree with defendant that these descriptions were not appropriate or 

accurate. Defendant did not object to them at the time, however, and we discern 

no plain error. Fortunately, the trial court had defined the roles of the various 

parties in the preliminary instructions to the jury. In the closing instructions, 

the court also explained that statements by counsel were not evidence and that 

the court would explain the law to the jury. Accordingly, any potential prejudice 

from the prosecutor's misstatements did not have the potential to mislead the 

jury.

Next, defendant argues that the prosecutor tried to win the jury over with 

flattery. In that regard, he points to the prosecutor's opening and closing 

statements. In his opening statement, the prosecutor told the jury: 

Now, we just went through several days of a jury 

selection process. I think it was like two or three days. 

We even had to take a week break for you guys to come 

back in.

You answered five to six pages of questions. You 

guys gave us biographical information about 

yourselves. I hope you realized and I hope you noticed 

that when you guys were answering these questions, I 

was paying attention very closely and very carefully.

I want to make sure that whatever members of the 

jury [are] in this box, that they are able to keep an open 

mind. I want to be able to make sure that they're able 

to pay attention, stay focused and listen to what

the people say.
20 A-4276-17T2

And most importantly, I wanted to make sure 

that every member of this jury box is someone who is 

free of any potential bias. I can confidently say that 

every person in this jury box is someone that I feel has 

all of those qualities.

We agree that these comments were not appropriate. Here again, however, 

defense counsel made no timely objection. Indeed, defense counsel engaged in 

similar flattery to the jury in his opening remarks. 

When viewed side-by-side both counsel attempted to win over the jury 

with flattery. Thus, to the extent that these arguments were made, the jury heard 

them from both sides. More importantly, the trial judge properly instructed the 

jury that the attorneys' opening and closing remarks were not evidence. Thus, 

we trust that the jury followed the court's instructions. See State v. Smith, 212 

N.J. 365, 409 (2012) (citing State v. Loftin, 146 N.J. 295, 390 (1996)). 

Consequently, we find no plain error concerning these remarks. 

Finally, defendant takes issue with the prosecutor's description of what 

the girlfriend would testify to during the prosecutor's opening statement. In 

that regard, the prosecutor made the following remarks to the jury:

And, ladies and gentlemen, the most important 

witness you're going to hear from is the witness who's 

life was impacted the most by this incident.

You're going to hear from a woman who saw her 

boyfriend shot while he sat in the driver's seat and she 
21 A-4276-17T2

sat in the passenger seat, in the middle of the day on 

July 9, 2016.

You're going to hear from the woman who ran 

out of the car in panic, in terror, and as you watched her 

boyfriend get out of the vehicle and collapse on the side 

of the -- sidewalk.

You're going to hear from the woman who held 

her boyfriend in her arms; [J.I.], as he lay dying. You're 

going to hear from the woman who saw her car pull 

away at a high rate of speed, with her one year old child 

inside.

You're going to hear about that woman's terror 

and concern and desperation as the child goes missing 

and she doesn't know where she -- where he is. Ladies 

and gentlemen, the last person you're probably going to 

hear from is [the girlfriend].

Defendant argues that these remarks invited the jury to identify with the 

girlfriend and the panic and terror that she faced. We disagree. The remarks 

concerning the girlfriend fell within the bounds of what a prosecutor may 

permissibly discuss in an opening statement. In that regard, prosecutors are 

permitted to discuss how he or she generally anticipates a witness will testify. 

See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004). We do not 

discern any blatant and improper appeal to apply the golden rule.
22 A-4276-17T2

3. The Kidnapping Conviction

At the close of the State's case, defendant moved to dismiss the kidnapping 

charge arguing that the State failed to submit evidence that he knew the child 

was in the car when he stole the car. The trial judge rejected that argument 

reasoning that the jury could infer that defendant knew or discovered that the 

child was in the backseat while he had possession of the car. 

We review a trial court's decision to deny a motion for acquittal de novo. 

State v. Williams, 218 N.J. 576, 593-94 (2014) (citing State v. Bunch, 180 N.J. 

534, 548-49 (2004)). Accordingly, we "determine whether, based on the entirety 

of the evidence and after giving the State the benefit of all its favorable 

testimony and all the favorable inferences drawn from that testimony, a 

reasonable jury could find guilt beyond a reasonable doubt." Id. at 594 (citing 

State v. Reyes, 50 N.J. 454, 458-59 (1967)). 

A person is guilty of kidnapping "if he unlawfully removes another from 

his place of residence or business, or a substantial distance from the vicinity 

where he is found, or if he unlawfully confines another for a substantial period 

. . . [t]o facilitate commission of any crime or flight thereafter . . . ." N.J.S.A. 

2C:13-1(b)(1). The statute does not specify the culpability requirement. 

Nevertheless, defendant must have acted knowingly in removing the child. See
23 A-4276-17T2

N.J.S.A. 2C:2-2(c)(3) (explaining that unless strict liability is clearly intended, 

a statute setting forth a crime without specifying the mens rea requirement 

should be construed as requiring a knowing state of mind); see also State v. 

Eldakroury, 439 N.J. Super. 304, 310 (App. Div. 2015) (holding that when a 

criminal statute does not specify the requisite mens rea, the "rule of lenity"

requires application of "the knowingly standard").

N.J.S.A. 2C:2-2(b)(2) defines the knowledge requirement and explains:

A person acts knowingly with respect to the nature of 

his conduct or the attendant circumstances if he is 

aware that his conduct is of that nature, or that such 

circumstances exist, or he is aware of a high probability 

of their existence. A person acts knowingly with 

respect to a result of his conduct if he is aware that it is 

practically certain that his conduct will cause such a 

result. "Knowing," "with knowledge" or equivalent 

terms have the same meaning.

A jury "may draw logical inferences from the evidence presented to them,"

including direct and circumstantial evidence. State v. Cango, 211 N.J. 488, 512 

(2012). Our Supreme Court has explained that different inferences can be drawn 

provided they are based on direct or circumstantial evidence and they support a 

finding of guilt beyond a reasonable doubt. State v. Samuels, 189 N.J. 236, 246 

(2007) (citations omitted). In that regard, the Court has stated:

[T]here are no legal rules as to what inferences may be 

drawn. The question is one of logic and common sense. 
24 A-4276-17T2

When each of the interconnected inferences [necessary 

to support a finding of guilt beyond a reasonable doubt] 

is reasonable on the evidence as a whole, judgment of 

acquittal is not warranted.

[Ibid. (alterations in original) (citations omitted).]

At trial the State presented sufficient evidence to support a jury 

determination that defendant knew the child was in the car when he stole it. The 

girlfriend testified that defendant was standing right next to the window of the 

car when he began shooting at the victim. Defendant thereafter drove off with 

the car and the car was not recovered for several hours. The jury could also 

reasonably infer that at some point during the flight defendant came to know the 

child was in the backseat. According the State all reasonable inferences, the 

trial court did not err in its determination that the jury could conclude beyond a 

reasonable doubt that defendant knew or came to know that the child was in the 

backseat of the car while he was fleeing from the shooting.

4. The Identification of Defendant

Next, defendant argues that this matter should be remanded for a new trial 

because the trial court erred when it denied his request to exclude the girlfriend's 

out-of-court identification of him. Specifically, defendant argues that the outof-court identification was impermissibly suggestive because the girlfriend saw 

a picture of defendant before the photo array was conducted. Defendant argues 
25 A-4276-17T2

that viewing was an impermissible multiple viewing. Defendant also argues that 

the suggestive out-of-court identification compromised the girlfriend's in-court 

identification and that identification should have been excluded as well. We 

disagree. 

Our review of a motion to exclude an out-of-court identification is 

deferential. State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). We 

will affirm such rulings if there is sufficient credible evidence to support the 

findings made by the trial court. Ibid. (quoting State v. Johnson, 42 N.J. 146, 

162 (1964)). Recognizing that we are not in as good a position to judge 

credibility as a trial judge, we give deference to the trial judge's credibility 

determinations. State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006) 

(citations omitted). 

Identification of a defendant is often critical evidence. See State v. 

Anthony, 237 N.J. 213, 241-43 (2019). Accordingly, pre-trial identification 

procedures must comply with due process. If the process is overly suggestive,

the identification should be excluded to protect the defendant's constitutional 

rights. Foster v. California, 394 U.S. 440, 443 (1969); State v. Henderson, 208 

N.J. 208, 285-90 (2011) (citations omitted). In Henderson, our Supreme Court 

identified factors to be considered in assessing the reliability of eyewitness 
26 A-4276-17T2

identifications. 208 N.J. at 247-72. Those factors are grouped into two 

categories: system and estimator variables. System variables are factors that are 

within the control of the criminal justice system, while estimator variables are 

factors over which the legal system has no control. Id. at 247. 

When a defendant seeks to exclude an out-of-court identification, he must 

show "some evidence of suggestiveness tied to a system variable which could 

have led to a mistaken identification." Anthony, 237 N.J. at 233 (citing 

Henderson, 208 N.J. at 288-93). One of the system variables is whether there 

were "multiple viewings." Henderson, 208 N.J. at 255-56, 290.

If a defendant presents evidence of suggestiveness, the burden shifts to 

the State to "offer proof to show that the proffered eyewitness identification is 

reliable." Id. at 289. The "ultimate burden remains on the defendant to prove a 

very substantial likelihood of irreparable misidentification." Ibid. (citations 

omitted). In that regard, the "threshold for suppression" is high and in most 

cases the issue of identification should be "presented to the jury." Id. at 303. 

Here, defendant did not file a pre-trial motion to exclude the girlfriend's 

out-of-court identification of him. Instead, the issue arose at trial when, on 

cross-examination, the girlfriend testified that before she was shown the photo 

array, she saw a picture of defendant on the side on a table. Following that 
27 A-4276-17T2

testimony, the court conducted an evidentiary hearing outside the presence of 

the jury. The court then heard testimony from the girlfriend, the detective who 

administered the photo array, and the sergeant who prepared the photo array. 

Thereafter, the court denied defendant's request to suppress the out-of-court 

identification finding that the evidence did not support suppression. In that 

regard, the court found no credible evidence that the girlfriend had been shown

or even seen a side photograph. Moreover, the trial court noted that the jury 

heard the testimony concerning the side photograph and it was in their province 

to weigh that evidence in determining the identification issue. 

We discern no error in the trial court's ruling. The court's factual findings, 

including the credibility assessment of the girlfriend's testimony, are supported 

by credible evidence in the record. While the girlfriend testified on crossexamination that she had seen a side photograph, at the hearing she could not 

recall if the side photograph was the same photograph presented during the 

photo array. More importantly, the trial court determined that there was 

sufficient reliability in the girlfriend's out-of-court identification of defendant. 

In that regard, the girlfriend was consistent and confident in her identification 

of defendant as the shooter and the person who stole her vehicle. 
28 A-4276-17T2

As part of his case, defendant presented testimony that a detective had 

printed Facebook photographs of defendant in connection with the investigation. 

That evidence, however, does not prove that the girlfriend saw a "side"

photograph of defendant.

Moreover, the trial court provided the jury with a comprehensive 

instruction regarding the girlfriend's identification of defendant. In that 

instruction, the court explained the issue of multiple viewings. Accordingly, we 

discern no reversible error in the trial court's denial of defendant's request to 

suppress the out-of-court identification. Having found no error in that issue, we 

find no error in the trial court allowing the girlfriend to identify defendant in

court. See State v. Madison, 109 N.J. 223, 242-43 (1988) (citations omitted)

(holding that an in-court identification should be excluded if the out-of-court 

identification was so impermissibly suggestive that the in-court identification

was probably based on the suggestive procedure rather than first-hand 

observations or if it was otherwise unreliable). 

5. The Sentence

Finally, defendant contends it was error to sentence him to consecutive 

prison terms for his convictions for murder, kidnapping, and unlawful 

possession of a weapon. We disagree. 
29 A-4276-17T2

We review sentencing determinations under a deferential standard. State 

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 549, 606 

(2013)). We do not substitute our judgment for "the judgment of the sentencing 

court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180 

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we 

will affirm a sentence unless

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 

of the guidelines to the facts of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience."

[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in 

original) (quoting State v. Fuentes, 217 N.J. 57, 70 

(2014)).]

When sentencing a defendant for multiple offenses, "such multiple 

sentences shall run concurrently or consecutively as the court determines at the 

time of sentence . . . ." N.J.S.A. 2C:44-5(a). In State v. Yarbough, 100 N.J. 

627, 643-44 (1985), our Supreme Court established criteria that a sentencing 

court must consider when deciding whether to impose consecutive sentences. 

Namely, the court must evaluate whether

(a) the crimes and their objectives were predominantly 

independent of each other;
30 A-4276-17T2

(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 . . . . 

[Id. at 644.] 

"The Yarbough factors are qualitative, not quantitative; applying them involves 

more than merely counting the factors favoring each alternative outcome." State 

v. Cuff, 239 N.J. 321, 348 (2019) (first citing State v. Molina, 168 N.J. 436, 442-

43 (2001); then citing State v. Carey, 168 N.J. 413, 427-28 (2001)). 

"When a sentencing court properly evaluates the Yarbough factors in light 

of the record, the court's decision will not normally be disturbed on appeal." 

State v. Miller, 205 N.J. 109, 129 (2011) (citing Cassady, 198 N.J. at 182). 

Nevertheless, when a sentencing court fails to explain its decision to impose 

consecutive sentences a remand is generally required for the judge to provide an 

explanation on the record. Ibid. (citations omitted). 

In sentencing defendant, the court considered the various aggravating and 

mitigating factors and then found aggravating factors three, six, nine, and 
31 A-4276-17T2

thirteen. N.J.S.A. 2C:44-1(a)(3), (6), (9), (13). The court also found mitigating 

factor two regarding the kidnaping conviction. N.J.S.A. 2C:44-1(b)(2). The 

court then balanced those aggravating and mitigating factors and imposed 

sentences within the ranges for the various convictions. 

After defendant filed his appeal, the sentencing judge issued a written 

memorandum amplifying her reasons for imposing consecutive sentences. The 

judge explained that she considered the various Yarbough factors and imposed 

a consecutive sentence for the murder and the kidnapping because those crimes 

involved separate victims and were independent of each other. In imposing a 

consecutive sentence for unlawful possession of a firearm, the judge explained 

that the evidence showed that defendant possessed the gun prior to any contact 

with the victim. 

We discern no error in the consecutive sentences imposed for the murder 

and the kidnapping. There is evidence supporting the sentencing judge's 

findings that both crimes were independent of each other and involved two 

different victims. The consecutive sentence for unlawful possession of a gun is 

a closer call. While the sentencing judge did not provide a lengthy explanation 

for imposing consecutive sentences, we cannot conclude that she mistakenly 

exercised her discretion. The sentencing judge adequately explained that the 
32 A-4276-17T2

unlawful possession of the gun was separate and distinct from the murder. The 

judge also explained that the evidence showed that defendant possessed the 

firearm prior to contact with the victim. See Cuff, 239 N.J. at 351; but see State 

v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999).

Affirmed.