### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 17T2 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. HAKEEM O. WILLIAM S, a/ k/a HA KEE M 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 brief s ). John T. Lenahan, Salem County P rosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and o n the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVI SION This opinion shall not "constitute precedent or be binding upon any court."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

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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 spea k with a nother man walking on the street. The pedestrian pulled out a gun, shot the drive r 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 drive r, 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 endange ring the welfa re 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 a n 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 per iods of parole ineligibility. Defendant appeals his convictions and sentence , arguing tha t there were

e videntiary error s at his trial and the sentence w as excessive because three of the prison terms were run consecutively. Discerning no reversible error, we affirm the convictions and sentence.3 A

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We take the facts from the evidence at tr ial. 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 w as looking at neighborhoods in Penns Grove where they were considering buying a h ome. 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 exp lained that J.I. thought the man had given h im 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. foll owed her through the front passenger seat do or. 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 of ficers responded to the scene. The girlfrie nd explained what happened and that she did n ot 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 witnes ses to protect their privacy interests.4 A

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approximately five feet six inches to five feet seven inches tall. Some of the
event s at the scene were recor ded on a mo tor 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 tha t he ha d been shot four times, and a medical exam iner testified J.I.
died as a result of his gunshot wounds. Police recovered three bulle t 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 backsea t, after observi ng the car for several minutes, she called th e police. When the police responded they found that the child was unharmed and he was returned to the girlfriend, his mother.
T hat same night the girlfriend was sh own a photo array cont aining six photographs. The photo arra y was administered by a dete ctive who was not involved in the investigation and the procedure w as video recorded and played for the jury at trial. The girlfriend identified a photograph of defen dant as the

man who had sh ot her boyfriend and taken her car and child. At trial the gir lfriend also identified defendant as the shooter and the man who had taken her car and child. On cross

- examination the girlfriend revealed,5 A

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apparently for the first t ime, that when she first came int o the office at the police station where the array was c onducted , she saw a picture t hat looked like defendant sitting on the side o n a table. The girlfriend went on to testify that she told a police officer that the photo graph looked like the " guy. "
De fense counsel contended that the identification should b e excluded; accordingly, the trial court conduct ed an evidentiary hearing outside the presence of the jury

. At that hearing , the girlfriend was shown a portion of the video of her photo identificatio n and she testified that she was unsure where exactly sh e 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 photo graphs of defendant being in the room at the time that the photo array was conducted. He also testified that the girlfriend neve r mentioned seeing defendant depicted in a photograph other than the photograph presented in the
array. The sergeant who prepa red the photo array also testified at the evidentiary hearing. He explained that he placed the photographs in a folder and handed it6 A

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to the detective who conducted th e array and that the girlfriend never mentioned seeing another photograph depicting defen dant. After hearing th at testimony, the trial court found that there was no evidence that any law enforcement officer showed the girlfriend a photograph prior to th e 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 w ith 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 th e shooting she was visiting a f riend ' s house near where the shooting took place. She exp lained that she was introduced to a heavy

- set black man who she identified as defendant at trial. A.G. went on to testify that approxima tely fifteen minutes after def endant left the house she was visiting, she heard gunshots. As part of its case, the S tate 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 w hat he observed at the sc ene.7 A

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The video was played for over an hour in t wo segments. The first segment lasted approximately th irty

- seven minutes. Th e video depicted the visibly distressed girlfriend stating that the assailant h ad taken her " baby " and imploring the police offi cer 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 pre judicial. The State c oun tered that the jury should be allowed to see the entire video be cause 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

. A lso , an un identified speaker can be heard saying a prayer for the girlfriend and her son. Afte r seeing the entire MVR v ideo , the trial court informed counsel that
it would give the ju ry 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 cou rt. The court also instructed the jury to disregard
any expressions of sympathy for the girlfriend and the child and that their8 A

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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 ju ry found defendant guilty of first

degree murder, first

- degree kidnaping, t hird

- 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

- degr ee theft of a motor vehicle, and fourth

- degree endangering another person. Thereafter, t he court sentenced defendant. The conviction for possession of a weapon for an unlawful purpose was merged with the murder conviction and the conviction s for endanger ing the welfar e of a child and reckless endangerment were merged with the kidnaping convi ction. On the murder conviction, defendant was sentenced to thirty years in prison with thirty years of parole ineligibility. On the kidnapping conviction , he was se ntenced to
fif teen years i n prison subject to the No Early R elease 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 pr ison. The prison terms for the convictions of murder, kidnaping, and unlawful possession of a weapon were run consecutively and the prison term for9 A

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the conviction for theft of a mo tor 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 ampli fying its sentencing decision. See R. 2:5

- 1(b).
II

. On appeal, d efendant presents five arguments for our consideration:
POINT I

- D EFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE P ROCESS AND A FAIR TRIAL BY THE JUDGE ' S DECISION TO PERMIT THE PROSECUTOR TO PLAY FOR TH E JURY THE ENTIRE HOUR

- PLUS MV RECORDIN G OF THE CRIME ' S AFTERMATH AT THE SCENE.
POINT II

- THE PROSECUTOR ' S ACTS OF PROFESSIONAL MI SCONDUCT DURING HIS OPENI NG AND SUMMATION DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. POINT III

- THE KIDNAPPING CON VICTION MUST BE VACATED BECAUSE THE STATE FAILED TO ESTABLISH AN E SSENTIAL ELEMENT OF THE OFFENSE.
POINT IV

- THE FAIRNESS OF THE TRIAL WA S IRREPARABLY DAMAGED BY T HE COURT ' S REFUSAL TO EXCLUDE [THE GIRLFRIEND ' S] IN

COURT AND OUT

- OF

- COURT IDENTIFICATION S OF DEFENDANT.10 A

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- THE COURT ERRED IN IMPOSING THREE CONSECUTIVE TERM S IN VIOLATION OF THE APPLICABLE SENTENCING PRINCIPLES. We are not persuaded by any of t hese arguments and we will address them in
turn. 1. The MVR Video Defendant argues tha t 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 a bu se of discretion.
State v. Rose , 206 N.J. 141, 157 (2011) (citing Brenman v. Demello , 191 N.J. 18, 31 (2007)). Only th ose evidentiary rulings that are " so wide [ of ] the mark that a manifest denial of justice resulted " should be reversed. Griffin v. Ci ty o f E. Orange , 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs

. Ins. Co. , 160 N.J. 480, 4 92 (1999)). When no objection is made , we review for plain error and re verse 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 admissib ility of the MVR video . Instea d, the State introdu ced the MVR video during the testimony of a police officer who responded to the shooting11 A

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scene. The State conten ded 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 e vidence. 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 showe d, among other things, (1) the officer ' s arrival; (2) the girlfriend explaining what hap pened and describ ing the shooter; (3) the girlfriend recognizing that her boyfriend had no pulse and had died; and (4 ) the girlfriend repeatedly asking the police to fi nd 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 si de bar and there argued that no more of the video s hould be shown because it would be prejudicial and cumulative. In response, t he State c ontended that the video was already in evidence and the jury sho uld be allowed to see the entire video because it dep icted the crime scene. In that regard, the State a rgued that the scene had not been extensively photographed because a storm arrived and
t herefore the video was probative evidence.12 A

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The trial judge noted that no pre

- trial motion concerning the video had been made and s he had not reviewed the rest of the video. The judge then ruled that because the video was already in evidence, the remaind er 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 t he 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 playe d, the trial judge, outside the presence of the jury, informed counsel that s he would gi ve a limiting instruction concerning the MVR video. The judge and counsel then agreed upon an
instructi on and the judge read that instruction to the jury. The judge d irected the jury to disregard any comments by unidentified individuals or police officer s who had not testified in court. The judge a lso instructed the jury t o 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

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- 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 investigat ion. There were comments made by unidentified individuals, who were not officers.
Y o u are the judges o f 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 hav e heard the testimony of just two witnesses; Patrolman Hemple and Patr olman Spinelli.
T o 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 h ad an opportunity to hear them testify in this courtroom. Only then c an you fully consi der their statements and their credibility. Second; the recording also included comments by officers and other individuals, expressing sympathy for [the gir l frien d ] an d concern for her child. While those events are part of the DVD that is in evidence, y ou 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

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- 17T2 You are instructed to disre gard 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 p laying 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 th e potential to appeal to the jur y ' s sympathies. The limiting instruction, however, add ressed that potential prejudice. Accordingly , the record does not reflect th a t 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 take n 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 undul y prejudicial. " Evidence claimed to be unduly prejudicial is exclude d only when its ' probative value is so significantly outweighed by [its] inherently inf lammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonab le and fair evaluation '15 A

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of the issue s in the case

. " Griffin , 225 N.J . at 421 (alteration in original) (citations omitted). Again, the trial judge ' s instru ction to the jury limited the prejudicial impact of the full MV R video . The jur or s were instructed to disregard statements or depictions that played on their sympathy a nd 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 th e video function ed as a preemptive attempt to bolster the credibility of the girl friend in violation of Rule 607. Rule 607 states that a " prior consistent statement sh all not be admitted to support the credibility of a witne ss , except to rebut an express or imp l ied charge ag ains t the witness of recent fa b rication or of improper influe nce or motive and exc ept as otherwise provided by the law of evidence. " D efense counse l did not make this argument at trial and again , we review it for plain error. See Sta te v. Nunez , 43 6 N.J. Super. 70, 76 (App. Div. 2014). Having reviewed the MVR vid eo and the testimony of the girlfriend, we discern no plain error. Finally, defendan t argues that his trial counsel w as ineffective in failing to file a pre

- trial motion t o exclude the MVR video and that we should remand for a new trial. We decline to consider this argument as part of th is direct appeal.16 A

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We generally do not hear inef fective 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. 201 9) (quoting State v. Castagna , 187 N.J. 293, 313 (2006 ))

. Such ineffective assistance claims

are " particul arly suited for post

- convictio n review because they often cannot reasonably be raised in a prior proceeding. " Id. a t 174

- 75 (quoting State v

. Preciose , 129 N.J. 451, 460 (1992)).
2

. The Alleged Miscond uct b y t he 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 rol es of counse l by glorifying the prosecutor ' s rol e and diminishing the rol e of defense counsel. Second, he as serts that the prosecutor improperly flattered the jur ors to win them over as allies. Finally, he contends that the prosecutor invited the jury to identify wi th the girlfriend and to sympathize with the trauma she experienced. Prosecutors are afforded r easonable latitude during openings and closings.
State v. R.B. , 183 N.J. 308, 330 (20 05) (citation omitted) ; State v. Williams , 113 N.J. 393, 447 (1988) (cit ations omitted) . Nevertheless, prosecutor s must17 A

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" confine their comm ents to evidence revealed duri ng the trial and reasonable inferences to be drawn from that evidence. " State v. Smith , 167 N.J. 158, 178 (2001). W hen considering claims of prosecutorial misconduct , we first determine whether misconduct occurred, and if so, whether it depr ived the defe ndant of a fair trial. State v. Wakefield , 190 N.J. 397, 446 (2007) (quoting Smith , 16 7 N.J. at 181) . Accordingly, even when a prosecutor ' s comments consti tute 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 , 4 19 N.J. Super. 88, 139 (App. Div. 2011) (quoting
State v. Ramseur , 106 N.J. 123 , 322 (1987)).
We also consider whether defense c ounsel 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 d oubt as to whether the
error le d the jury to a resul t that it otherwise might not have reached. " S tate v. Fe al , 194 N.J. 293, 312 (2008) ( quoting State v. Daniels , 182 N.J. 80, 102 (2004) )

.18 A

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Defendant first complains abo ut the prosecutor ' s misstatements concerning the rol e s of counsel. In his opening stat ement 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 gi ve you a general description of what the different role s of the people in this courtroo m are. No w, 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 a nd strenuously for his client. His job is to serve a s the mouthpiece for his client , to give you arguments as to why he believes h is client is [innocent]. Another person in the courtroom is myself, the Assistant P ro secutor

. Now, a lot of people think my job is difficult but to be quite frank with yo u, my job is not. It ' s pretty simple

. My job is simply to present the evidence t o you and present the witnesses to you, that led to these charges. My j ob is not to pu nish Hakee m 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

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We agree with defendant that these description s 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 rol e s of the various parties in the p reliminary instructions to the jury. In the closing instructions, the court also expla ined that statements by counsel were not evidence and that the court would explain the law to the jury. Accordingly, any potential prejudice
f ro m the prosecutor ' s miss t atement s d id not have the potential to mislead the jury. Next, defendant argues that t he prosecutor tried to win the jury over with flattery. In that regard, he points to the prosecutor ' s opening and closing
statement s. In his opening statement, the pro secutor to ld the jury:

Now, we just went through several days of a jury selection proc ess. 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 gav e us biogr aphical information about yourselves. I hope you realized and I hope you not iced 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 t his 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

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- 17T2 And most importantly, I wanted to make sure that every member of this jury box is someon e 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 tim ely objection. Indeed, defense counsel engaged in
similar flatte ry 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 argume nts were made, the jury hea rd them from both sides. More importantly, the trial judge properly instructed the ju ry that the attorneys ' opening and closing remarks were not evidence. Thus, we trust that the jury followed the court ' s instructions

. See Sta te v. Smith , 2 12
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 take s issue with the prosecutor ' s description of what the girlfriend would testify to during the prosecuto r ' s opening statement. In that regard, the prosecutor made the following remarks to t he jury:

And, ladies and gentlemen, the most important witness you ' re going to hear from is the witness who ' s l ife was impacted the most by this incident.
You ' re goin g to hear from a woman who saw her boyfriend shot while he sat in the driver ' s seat an d she21 A

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You ' re going to hear from the woman who ran out of the car in panic, in terror, and as you wa tched 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 go ing 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 th at 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 proba bly going to hear from is [the girlfriend]

. Defendant argues that these remarks invit ed 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, prosecut or s are permitted to discuss how he or she generally anti cipates a witness will testify.
See State v. Walden , 370 N.J. Super. 549, 558 ( App. Div. 2004). We do not disc ern any blatant and improper appeal to apply the golden rule.22 A

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3

. The Kidnapping Con viction 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 tha t the jury could infer that defendant knew or discover ed that the child was in the backseat while he had possession of the car. We review a trial court ' s decision to den y a motion for acquittal de novo. State v. Williams , 218 N.J. 576, 593

- 94 (2014) (ci ting State v. B unch , 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 u nlawfully removes another from his place of residence or business, or a substantial d istance f ro m the vicinity where he is found, or if he unlawfully confine s another for a substantial period . . . [t]o facilitate commission of any crime or flight thereaft er . . . . " N.J.S.A.
2C:13

- 1(b)(1). The statute does not specify the culpability re quirement. Nevertheless, defendant must have acted knowingly in removing the child. See23 A

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N.J.S.A. 2C:2

- 2(c)(3) (explaining that unless strict l i ability is clearly intende d, 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.
El dakroury , 439 N.J. Super

. 304, 310 (App. Div. 2015) (holding that when a criminal statu t e does n ot specify the requisite mens rea, the " rule of lenity " requires application of " the kn owingly 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 attenda nt circumstances if he is aware that his conduct is of that nature, or that such circ umstances 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 practi cally certain that his co nduct will cause such a result. " Knowing, " " with knowledge " or equivalent terms have the same meaning. A jury " m ay draw logical inferences from the evidence presented to them, " including direct and circum stantial 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 dir ect 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 C ourt has stated :

[T]h ere are no legal rules as t o what inferences may be drawn. The question is one of logic and common sense.24 A

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- 17T2 When each of the interconnected inferences [necessary to suppor t a finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a wh ole, judgment of acquittal i s not warranted

. [ Ibid. (alterations in original) (citations omitted).] At trial the State presented sufficient evidence to support a jury d etermination that defendant knew the child was in the car when he stole it. The girl friend testified that defend ant 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 a t so me point during the flig ht defendant came to know the child was in the backseat

. According the State all reasonable inferences, the
trial court did not err in its det ermination that the jury could conclude beyond a reasonable doubt that defendant knew or came to know that the ch ild was in the backseat of the car while he was fleeing f ro m 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 denie d his request to exclude the girlfriend ' s
out

- of

- court identification of him. Specifically, defendant argues that the out

of

- court identification was impermissibly sugges tive because the girlfriend saw a picture of defendant before the photo array was con ducted. Defendant argues25 A

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that viewing was an impermissible multiple viewing. Defendant also argues that the suggestive out

- of

- court identification compr omised the girlfr iend ' s in

- court identification and that identification should have been excluded as w ell. We disagree. Our review of a motion to exclude an out

- of

- court identif ication 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 finding s 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 jud ge, we give deference to the trial judg e ' s credibility determinations. State v. Disp oto , 383 N.J. Super. 205, 217 (App. Div. 2006) (citations omitted).
Identifi cation 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 (1 969); S tate v. Henderson , 208 N.J. 208, 285

- 90 (2011) (citations omitted) . In Hender son , our Supreme Court identified factors to be considered in assessing the reliability of eyewitness26 A

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identifications. 208 N.J. at 247

- 72

. Those factors are grouped into two

ca tegories: system and estimator variables. System variables are factors that a re within the control of the criminal justice system , while estimator variables are factors over which t he legal system has no control. Id. at 247

. When a defendant se eks to exclude an out

- of

- court identification, he must show " some evidence of suggest ivenes s tied to a system variable which could have le d 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 eyewitne ss identification is reliable. " Id. at 289. The " ultimate burden remains on the defendant to prove a very substanti al likelihood of irrepara ble misidentification. " Ibid. (citations omitted). In that regard, the " threshold for suppression " is high and i n most cases the issue of identi fication should be " presented to the jury. " Id. at 303. Here, defendant did not fil e a pre - trial motion to exclude the girlfriend ' s
out

- of

- court identification o f him. Instead, the issue arose at trial when, on

cross - examination, the girlfriend testifie d that before she was shown the photo
array , she saw a picture of defendant on the si de on a table. Following that27 A

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testimony, the court conduct ed an evidentiary he aring outside the presence of the jury. The court then heard testimony f ro m the girlfriend, the detective who
administered the photo array, and the sergeant who prepared the ph oto array. The reafter, the court denied defendant ' s request to suppress the ou t

- of

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

re gard, the court found no credible evidence that the girlfriend had been show n

or even seen a side photograph. Moreover, the trial court no ted that the jury heard t he testimony concerning the side photograph and it was in their province
to weigh that evide nce in determin ing the identification issue

. We discern no error in the trial court ' s ruling. The court ' s fact ual findings, including the credibility assessment o f the girlfriend ' s testimony, are supported by credible evidence in the record. While the girlfriend testified on cross

examination that she had seen a side photograph, at the hearing she could not recall i f the side photograph wa s 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

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As part of his case, d efendant presented testimony that a detective had printed Facebook photographs of de fendant in con nection with the investigation.
T hat evidence , however, does not prove that the girlfriend saw a " side " photograph of defendant. Moreover, the trial court pr ovided the jury with a comprehensive instruction regarding the girlfriend ' s identific ation of defendant. In that instruction, the court explained t he issue of multiple viewings. Accordingly, we discern no reversible error in the trial court ' s denial of d efendant ' s request to suppress the out

- of

- court identification. Having found no erro r 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, 24 2

- 4 3 (1988) (citations omitted) (holding that an in

- c ourt identification should be excluded if the out

- of

- co urt identification was s o impermissibly suggestive that the in

- court identification

was probably based on th e suggestive procedure rather than first

- hand observations or i f it was otherwise unreliable )

. 5

. The Sentence Finally, defendant contends it was e rror to sentence him to consecutive prison terms for his convictions for murder, k idnapping, and unlawful possession of a weapon. We disagree.29 A

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We review sentencing dete rminations under a deferential standard. State

v . Grate , 220 N.J. 317, 337 (2015) (q uoting 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 sentencin g court were not based upon competent and credible evidence in the record; or (3) " th e 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) (alte ration 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 det ermines 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

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- 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 closel y in time and place as to indicate a single period of aberrant behavior; (d) a ny 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 ar e qual itative, 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. Care y , 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 no rmally 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 i mpose consecutive sentences a remand is generally required for the judge to provide an explanation on the record

. Ibid. (citations omitted). In sentencing defendant, th e c ourt considered the various aggravating and mitigating factors and then found aggr avating factors three, six, nine, and31 A

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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 fact or s and imposed
sentences within the ranges for the various convictions. After defendant filed his appeal, the sentencing judge issued a written memorandum amplifying h er reasons for imposing consecutive sentences. The judge explained that she consider ed 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. I n 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 i mposed for the murder and the kidnapping. There is evidence supporting the sentencin g judge ' s findings that both crimes were independent of each other and involved two
diffe rent victims. T he consecutive sentence for unlawful possession of a gun is a clo ser call. While the sentencing judge did not provide a lengthy explanation for impos ing consecutive senten ces, we cannot conclude that she mistakenly
exercised her discretio n. The sentencing judge adequately explained t hat the32 A

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unlawful possession o f the gun was separate an d distinct from the murder. T he judge also explained that the evi dence showed that defendant possessed the firearm pri or to contact with the victim. See Cuff , 239 N.J. at 351 ; but see State v. Copling , 326 N.J . Su per. 417, 441

- 42 (App. Div. 1999). Affirmed.