NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2739-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON KANE,

Defendant-Appellant.

__________________________________

Argued June 8, 2016 – Decided 

Before Judges Ostrer, Haas and Manahan.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Indictment No. 11-03-0448.

Michele E. Friedman, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney; Jason A. Coe, Assistant Deputy 

Public Defender, of counsel and on the 

briefs).

Mary R. Juliano, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Christopher J. 

Gramiccioni, Acting Monmouth County 

Prosecutor, attorney; Ms. Juliano, of 

counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

March 3, 2017

APPROVED FOR PUBLICATION

March 3, 2017

APPELLATE DIVISION
2 A-2739-13T2

A jury found defendant Brandon Kane guilty of second-degree 

serious bodily injury aggravated assault of M.K. (Marjie),1

N.J.S.A. 2C:12-1(b)(1); second-degree kidnapping of Marjie, as a 

lesser-included offense of first-degree kidnapping, N.J.S.A.

2C:13-1(b); third-degree terroristic threats of Marjie, N.J.S.A.

2C:12-3; third-degree significant bodily injury aggravated 

assault of C.H. (Charlie), N.J.S.A. 2C:12-1(b)(1);2 and fourthdegree criminal trespass of Charlie's home, N.J.S.A. 2C:18-3(a), 

as a lesser-included offense of second-degree burglary, N.J.S.A.

2C:18-2. The jury acquitted defendant of first-degree attempted 

murder of Marjie, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3. 

Defendant raises four arguments on appeal. First, he 

challenges the court's denial of his motion to compel production 

of Marjie's pre-assault medical and mental health treatment 

records. Second, he claims that several instances of 

prosecutorial misconduct deprived him of a fair trial. Third, 

he argues there was plain error in the jury instruction. Last, 

he challenges the court's weighing of aggravating and mitigating 

factors in imposing an aggregate sentence of seven years subject 

 

1 Out of respect for their privacy, we use initials and 

pseudonyms for the victims. 

2 After the close of the State's case, the court reduced the 

original second-degree charge related to the assault of Charlie 

to a third-degree aggravated assault.
3 A-2739-13T2

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Having 

considered defendant's arguments in light of the record and 

applicable principles of law, we affirm.

I.

The offenses occurred during and after a party at Charlie's 

house on the evening of October 18, 2010, and in the early 

morning hours the next day. The State presented eyewitness 

testimony from party attendees and two neighbors; State 

Troopers, including those who discovered the victims and 

arrested defendant; physicians who treated Marjie; and an expert 

witness who rebutted defendant's defense of temporary insanity. 

Defendant called his father, one eyewitness, and two experts in 

support of his insanity defense. Although defendant did not 

testify, the jury heard his Mirandized statement to police. 

Defendant and Marjie had been dating for almost a year when 

they celebrated her twenty-first birthday on October 18. The 

celebration, which involved significant drinking, was an all-day 

affair that ended at Charlie's house around 11 p.m. Present 

along with Charlie were his girlfriend and another couple. The 

group consumed shots of whiskey, although Marjie denied drinking 

at Charlie's house. Marjie admitted she was still tipsy from 

before, however. 
4 A-2739-13T2

The mood was initially festive, but changed after the 

conversation turned to defendant's appearance. He was a bodybuilder who had injected himself with anabolic steroids. He 

weighed roughly 250 pounds. One person likened defendant to the 

Hulk while the group was gathered. Defendant then grabbed a 

refrigerator and smashed his head into it repeatedly. As a 

result of the bizarre act, Charlie got upset and told defendant 

to calm down. 

The altercation apparently disturbed defendant, who walked 

into the living room. Marjie followed. She asked him if he was 

okay and tried to hug him. He head-butted her, knocking her to 

the floor and causing a cut under her eye. He then picked her 

up and instructed her "to stop crying" and mend her face. 

Upon learning what defendant had done, the other two women 

scolded defendant. Defendant became enraged that Marjie had 

disclosed he struck her. He told Marjie their relationship was 

over if she did not leave with him. He also threatened to kill 

her if she stayed. But she refused to obey his orders. 

Instead, defendant was told to leave and, eventually, after a 

violent confrontation with Charlie outside, he complied. 

However, less than an hour later, he returned. Charlie and 

his girlfriend were arguing near a door to the house. 

Defendant, who had earlier accused Charlie of "making out" with 
5 A-2739-13T2

Marjie, approached Charlie and punched him in the face, 

fracturing his nose and knocking him unconscious. 

Defendant located Marjie on the living room floor. She 

told him she was trying to sleep, but he did not believe her. 

She testified he grabbed her by the hair and dragged her out of 

the house, shoeless and coatless. Another one of the partygoers, who had passed out on a nearby sofa, testified for the 

defense that he awoke to observe defendant and Marjie yelling, 

cursing and arguing. But he stated that defendant did not drag 

Marjie out of the house by her hair.3

Marjie did not weigh much over one hundred pounds. She 

testified that defendant pulled her up the street. When she 

lost her footing, he simply dragged her along. She kept telling 

him to let her go. Marjie testified that he repeatedly told her 

he was going to kill her, and asked, "How does it feel knowing 

it's your last day to live?" When she tried to break free of 

his grip, he lifted her by her hair and punched her at least 

twice in the face, close-fisted. She blacked out. When she 

awoke, she felt her face gushing blood. He took her to a park 

 

3 The witness's credibility was questionable. He admitted that 

his trial testimony was at odds with his statement to police 

shortly after the event. He also testified he had been drinking 

steadily since the early evening, consuming multiple beers, four 

or five shots of whiskey, and painkillers. He did not observe 

defendant hit the refrigerator, head-butt Marjie, or punch 

Charlie. He also admitted he had been a friend of defendant. 
6 A-2739-13T2

and threw her down to the ground. While again threatening her 

with death, he kicked, punched, and choked her until she lost 

consciousness again. 

When she awoke a second time, defendant was cradling her 

head as she lay in the field, repeating he was sorry. He asked 

her if she was unfaithful to him. He tried to convince her to 

make up a story about how she was injured. She said she needed 

medical attention, but he did not call 911. Instead, he decided 

to take her back to his house. She begged him to take her to 

Charlie's house while they were en route, which he did. After 

checking to see if anyone was present, he carried Marjie up to a 

bathroom and tried to clean her up. 

State Troopers then entered the house. They had been 

called by two of Charlie's neighbors, who had independently come 

to suspect something was awry. As one neighbor headed home, he 

noticed the altercation between defendant and Charlie outside 

Charlie's house. His wife later heard Charlie's girlfriend 

screaming after discovering Marjie was missing from the home. 

The responding police searched unsuccessfully for defendant —

they interviewed defendant's father and went to the park — only 

to find defendant after he returned to the house with Marjie. 

The troopers found defendant standing in the bathroom as 

Marjie lay curled on the floor of the shower. She was bleeding 
7 A-2739-13T2

profusely. Her eyes were swollen shut. A piece of her lip had 

been ripped or bitten off. She had a fist mark on her forehead, 

marks on her neck, and "road rash" on her leg. Physicians later 

testified she suffered a concussion. As of the trial in 2013, 

she still suffered from migraines, vertigo, and post-traumatic 

stress disorder (PTSD) related to her head injury. Troopers 

also found Charlie in a nearby bedroom. He could not explain 

how he got there from the kitchen, where he had been knocked 

out. 

Defendant told the troopers that Marjie simply fell, but 

the police were not persuaded and arrested him. Initially, 

Marjie also claimed her injuries were from a fall. But once the 

police officers assured her that defendant was in custody, she 

told them how he had assaulted her. 

In a recorded Mirandized statement, defendant denied 

assaulting anyone at any point during the evening. He denied he 

struck the refrigerator. He claimed he left the house only to 

retrieve his phone charger. He stated that when he returned to 

the house, he found Marjie curled up on the living room floor, 

screaming, with head and facial injuries. He denied he blacked 

out at any time. He also denied that he had taken steroids or 

other drugs. 
8 A-2739-13T2

Defendant filed two pretrial motions to compel the State to 

produce records of Marjie's mental health treatment, drug and

alcohol rehabilitation and counseling, drug prescriptions, and 

hospitalization and treatment for an alleged suicide attempt in 

2010.4 The court denied the first motion without prejudice. The 

court concluded that defendant failed to demonstrate the need or 

relevance of the records. 

A different judge denied the second motion several months 

later. Relying on N.J.R.E. 505 and N.J.R.E. 506, the court 

found the requested documents were privileged and defendant 

failed to satisfy the test for piercing the privilege as set 

forth in In re Kozlov, 79 N.J. 232 (1979), and restated in 

Kinsella v. Kinsella, 150 N.J. 276 (1997). The court rejected 

the argument the documents were needed to challenge Marjie's 

credibility, questioning whether her credibility was at issue 

and whether the documents would be relevant to undermining it. 

At trial, defense counsel conceded that defendant punched 

Charlie, head-butted Marjie, and struck her again in the park. 

The crux of the defense was a claim of temporary insanity. 

Defendant offered evidence that he suffered from PTSD arising 

out of an incident four years earlier in which he was stabbed 

 

4 Defendant also sought records of any toxicology tests performed 

at the hospital after the assault, but the parties ultimately 

agreed none existed.
9 A-2739-13T2

repeatedly. His expert witness contended that he committed the 

assaults in the midst of a "disassociative state" triggered by 

the PTSD and influenced by alcohol and drugs. As a result, he 

was "acting as if . . . on automatic pilot . . . in more of a 

reflexive manner." 

Defense counsel also challenged the kidnapping charge, 

contending Marjie voluntarily left the house with defendant, and 

the burglary charge associated with his entry over Charlie's 

objection. He also argued the State overcharged defendant by 

alleging attempted murder. 

The State's rebuttal expert found "no evidence that Brandon 

was psychotic before, during, or following the offense" or that 

he "didn't know what he was doing." Rather, he "struck the 

person he was angry at." Using the language of N.J.S.A. 2C:4-1, 

he opined defendant's actions demonstrated that he understood 

the "nature and quality" of his acts and knew that "what he was 

doing was wrong." 

Following the verdict, the court denied defendant's motion 

for a new trial. At the sentencing hearing, the court found 

that aggravating factors three (risk of re-offending), six 

(extent of prior criminal record), and nine (need to deter) 

outweighed mitigating factor eight (conduct the result of 

circumstances unlikely to recur). N.J.S.A. 2C:44-1(a)(3), (6), 
10 A-2739-13T2

(9); N.J.S.A. 2C:44-1(b)(8). The court noted that defendant's 

steroid use and intoxication contributed to his violent 

behavior, but did not find mitigating factor four (substantial 

grounds tending to excuse or justify conduct), despite 

defendant's request that it do so. See N.J.S.A. 2C:44-1(b)(4). 

The court sentenced defendant to concurrent seven-year 

terms on the second-degree kidnapping and aggravated assault of 

Marjie, with eighty-five percent parole disqualifiers and threeyear periods of parole supervision under NERA, N.J.S.A. 2C:43-

7.2. The court imposed a concurrent four-year term on the 

third-degree aggravated assault of Charlie, and merged the 

criminal trespass and terroristic threat counts into the 

remaining counts. 

Defendant presents the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S 

DISCOVERY MOTIONS BECAUSE THERE WAS A 

REASONABLE PROBABILITY THAT THE MATERIALS 

SOUGHT WOULD LEAD TO RELEVANT EVIDENCE; IT 

WAS FURTHERMORE A VIOLATION OF DEFENDANT'S 

CONFRONTATION RIGHT WHEN THE TRIAL COURT 

PREVENTED DEFENSE COUNSEL FROM CROSSEXAMINING THE VICTIM AS TO POSSIBLE USE OF 

PRESCRIPTION DRUGS. (raised below).

POINT II

MULTIPLE INSTANCES OF PROSECUTORIAL 

MISCONDUCT, INCLUDING UNSUBSTANTIATED 

ACCUSATIONS AGAINST THE DEFENDANT OF WITNESS 
11 A-2739-13T2

TAMPERING IN THE PRESENCE OF THE JURY, 

REQUIRE REVERSAL. (partially raised below).

A. The State Improperly Impeached A 

Defense Witness By Reference To An 

Unsubstantiated Allegation Of Witness 

Tampering In Front Of The Jury.

B. The State's Opening And Closing 

Statements Contained Improper 

Inflammatory Appeals To The Jurors' 

Emotions.

C. The State Improperly Exalted The 

Prosecution's Position As The 

Representative Of The State Of New 

Jersey To Lend Credibility To Its 

Theory Of The Case.

D. The Prosecutor Improperly Vouched For 

The State's Case By Expressing A 

Personal Belief In The Validity Of The 

Charges In The Indictment.

E. The State Improperly Denigrated The 

Defendant's Mental Health Defense.

F. The Cumulative Effect Of The 

Prosecutorial Misconduct That Appears 

In The Record Was Clearly Capable Of 

Producing An Unjust Result And 

Therefore Requires Reversal.

POINT III

BECAUSE THE STATE CHARGED MULTIPLE ACTS IN A 

SINGLE COUNT OF THE INDICTMENT, THERE WAS A 

REAL DANGER OF A FRAGMENTED VERDICT, THUS 

NECESSITATING A SPECIFIC UNANIMITY 

INSTRUCTION. (not raised below).

POINT IV

DEFENDANT'S SEVEN-YEAR NERA SENTENCE FOR HIS 

FIRST INDICTABLE OFFENSE WAS BOTH EXCESSIVE 

AND PROCEDURALLY FLAWED.
12 A-2739-13T2

II.

Defendant argues that the court erred in twice denying his 

motion to compel disclosure of Marjie's medical, mental health, 

and rehabilitation records. We review the trial court's 

discovery ruling for an abuse of discretion. State v. BroomSmith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 

N.J. 229 (2010). We discern none. 

A.

Before reaching the issue of privilege, we note that 

defendant failed to meet his heavy burden to secure discovery 

not mandated by Rule 3:13-3. It also appears he failed to 

provide notice of his motion to Marjie, the alleged victim. As 

these shortcomings implicate important issues concerning the 

confidentiality rights of third party crime victims, we discuss 

them separately. 

Our criminal discovery rules do not oblige the State to 

produce reports of mental examinations or experiments unless 

they are within its "possession, custody, or control." R. 3:13-

3(b)(1)(C); see State v. Robertson, 438 N.J. Super. 47, 68-69 

(App. Div. 2014), certif. granted on other grounds, 221 N.J. 287 

(2015). There is no evidence the State possessed the various 

records defendant sought. "[E]vidence in the control of a crime 

victim — notwithstanding the victim's close cooperation with the 
13 A-2739-13T2

prosecution — is not within the prosecutor's 'possession, 

custody or control.'" Id. at 69 (citation omitted). Likewise, 

the State's disclosure obligations under Brady v. Maryland, 373 

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), do not extend 

to documents in a private third-party's possession. Robertson, 

supra, 438 N.J. Super. at 69. 

A court may exercise its inherent power to order discovery 

outside the court rule, but the defendant bears the burden of 

establishing need. State ex rel. A.B., 219 N.J. 542, 555 

(2014). That burden is specifically calibrated to the "nature 

and extent of the intrusion" into the discovery target's rights. 

Id. at 556-57. In the case of a compelled psychological or 

physical examination of a victim, the burden is a heavy one. 

Even absent an issue of privilege, the defendant must satisfy a 

"heightened standard of substantial need" to justify the 

"extraordinary intrusions into an alleged victim's mind and 

body" and resulting emotional trauma and distress to the alleged 

victim. Id. at 561; State v. D.R.H., 127 N.J. 249, 256-67 

(1992); see also State v. Gomez, 430 N.J. Super. 175, 184 (App. 

Div. 2013) (stating discovery is only appropriate when the 

requestor's right "clearly outweighs the victim's . . . rights 

with respect to the specific discovery sought and its purpose"); 

N.J.S.A. 52:4B-36(c) (crime victims shall be "free from 
14 A-2739-13T2

intimidation, harassment or abuse" by the defendant). A

victim's pre-existing mental health records deserve comparable 

protection.

Nor is there evidence that defendant served the motions on 

Marjie. Although neither party addressed the issue, we 

seriously doubt the court may compel the production of a 

victim's mental health records without affording her notice and 

an opportunity to be heard. Cf. A.B., supra, 219 N.J. at 564, 

550 (noting that the parents of juvenile-victim were given 

notice of alleged offender's request to inspect their home, and 

the court considered an opposing certification from the victim's

mother on reconsideration); D.R.H., supra, 127 N.J. at 254-55, 

261 (noting written submissions to the court by father of 

alleged child sex-assault victim and the victim herself, 

opposing defendant's application for a physical examination of 

the child); Crescenzo v. Crane, 350 N.J. Super. 531, 543 (App. 

Div.) (noting that Rule 4:14-7(c) governing third-party 

discovery is designed to afford interested parties an 

opportunity to test the right to disclosure), certif. denied, 

174 N.J. 364 (2002).5 

 

5 Had defendant sought the records through a trial subpoena duces 

tecum, Marjie would have been on notice of the request and had 

an opportunity to file a motion to quash. See State v. Cooper, 

(continued)
15 A-2739-13T2

We recognize the prosecutor sought to protect Marjie's 

privilege by resisting the motion. Yet, the prosecutor 

represents the State, not Marjie. The privilege belongs to her. 

She possessed or controlled the records and had the greatest 

interest in their confidentiality. Furthermore, an order 

compelling discovery would presumably have been directed to her, 

not the State. See A.B., supra, 219 N.J. at 564 n.4 (stating 

that discovery order — in that case, to inspect victim's home —

may be submitted to the alleged victim as opposed to the 

prosecutor's office). 

Although a victim may be content to rely on the State's 

opposition, she should be afforded the option to advocate 

separately for preserving her privilege. As a crime victim, she 

was entitled "[t]o appear in any court before which a proceeding 

implicating the rights of the victim is being held." N.J.S.A.

52:4B-36(r). This included, in our view, the right to appear to 

oppose the motion seeking her records.6 

 

(continued)

2 N.J. 540, 556-57 (1949); In re Application of Attorney 

General, 116 N.J. Super. 143, 147 (Ch. Div. 1971).

6 The full text of section (r) entitles a victim:

To appear in any court before which a 

proceeding implicating the rights of the 

victim is being held, with standing to file 

a motion or present argument on a motion 

(continued)
16 A-2739-13T2

B.

As a substantive matter, the documents sought were

privileged and/or confidential. Although the record does not 

reflect what kind of mental health professional, if any, Marjie 

actually consulted, we presume one or more privileges applied. 

See N.J.R.E. 505 (psychologist-patient privilege); N.J.R.E. 506 

(physician-patient privilege, including psychiatrist-patient 

privilege); N.J.R.E. 510 (marriage counselor privilege); 

N.J.R.E. 518 (social worker privilege); N.J.S.A. 45:8B-49 

(licensed professional counselor privilege); N.J.A.C. 13:34C-4.5 

(alcohol and drug counselor privilege).7 Defendant does not rely 

 

(continued)

filed to enforce any right conferred herein 

or by Article I, paragraph 22 of the New 

Jersey Constitution, and to receive an 

adjudicative decision by the court on any 

such motion.

[N.J.S.A. 52:4B-36(r).]

Although the provision grants a victim standing to affirmatively 

seek enforcement of her victim rights, we do not read the 

standing grant so restrictively as to preclude standing to 

oppose efforts to undermine those rights. 

7 Prior to the adoption of the uniform privilege governing mental 

health service providers, N.J.R.E. 534 (effective July 1, 2016), 

the standards governing the privileges varied. See, e.g., State 

v. McBride, 213 N.J. Super. 255, 270 (App. Div. 1986) 

(recognizing that "the psychologist-patient privilege affords 

even greater confidentiality than the physician-patient 

privilege"), certif. denied, 107 N.J. 118 (1987). 
17 A-2739-13T2

on an explicit exception to a privilege, and he has failed to 

justify piercing these privileges.

A court is required to "give as much effect as possible to 

the legislative judgments embodied in the privileges within 

ever-present constitutional limitations." State v. Mauti, 208 

N.J. 519, 537 (2012) (internal quotation marks and citation 

omitted). The Court recognized that Kozlov created a threeprong test for piercing a privilege. Id. at 537. Kozlov held 

that a privilege may be pierced upon a showing that: (1) the 

party has "a legitimate need . . . to reach the evidence sought 

to be shielded"; (2) the evidence is relevant and material to an 

issue before the court; and (3) the evidence could not be 

secured from a less intrusive source. Kozlov, supra, 79 N.J. at 

243-44. 

But the Supreme Court cautioned in Mauti that Kozlov did 

not create a "broad equitable balancing test pursuant to which 

any privilege is subject to piercing if the adversary 'needs' 

relevant evidence that cannot be obtained from another source." 

Mauti, supra, 208 N.J. at 537. Rather, "only in the most narrow 

of circumstances, such as where a privilege is in conflict with 

a defendant's right to a constitutionally guaranteed fair trial, 

would the need prong of its test be satisfied." Id. at 538. 
18 A-2739-13T2

Furthermore, the constitutional right to confrontation upon 

which defendant relies is not unqualified. See State v. 

Gilchrist, 381 N.J. Super. 138, 144 (App. Div. 2005) (stating 

the right to confront one's accusers "does not include the power 

to require the pretrial disclosure of any and all information 

that might be useful in contradicting unfavorable testimony" 

(internal quotation marks and citations omitted)). The 

confrontation right may be balanced against a compelling State 

interest, such as the interest in maintaining the 

confidentiality of certain records. In re Z.W., 408 N.J. Super.

535, 539 (App. Div. 2009) (citing Pennsylvania v. Ritchie, 480 

U.S. 39, 59-61, 107 S. Ct. 989, 1002-03, 94 L. Ed. 2d 40, 58-60 

(1987)); see also In re Maraziti, 233 N.J. Super. 488, 498-500 

(App. Div. 1989) (finding that the Due Process Clause did not 

compel disclosure of communications protected by the attorneyclient privilege where alternative sources of information 

regarding the victim's credibility were available).

A defendant may not "turn the discovery process into a 

fishing expedition." Broom-Smith, supra, 406 N.J. Super. at 

239.8 Defendant contends records of Marjie's alleged "sensory 

 

8 Defendant's assault of Marjie was an act of domestic violence 

as they were in a long-standing dating relationship. See

N.J.S.A. 2C:25-19. A court must also guard against allowing the 

(continued)
19 A-2739-13T2

and mental defects[] and her potential drug use" were essential 

to challenge her "ability to perceive effects and relate them 

accurately." We disagree. There was no preliminary showing —

despite the fact that defendant was involved in a close 

relationship with Marjie for almost a year — that she suffered 

from a mental or neurological condition that affected her 

ability to perceive, recall or relate. 

This case is unlike Velazquez v. City of Camden, 447 N.J. 

Super. 224, 244-45 (App. Div.), certif. denied, ___ N.J. ___ 

(2016), where we allowed a civil rights plaintiff to introduce 

evidence of the defendant police officer's sleep disturbances, 

anxiety, and difficulties concentrating and functioning because 

they related to the credibility of his testimony concerning what 

he had observed.9 Notably, in Velazquez, the value of the 

witness's testimony turned on a fine, detailed observation —

namely the size and placement of a rock thrown by the suspect 

whom the defendant shot. Id. at 245. The court found the 

witness's neurological state was directly relevant to his 

 

(continued)

discovery process to be used as a means to harass or embarrass a 

victim. See N.J.S.A. 52:4B-36(c). 

9 We note that the appellate panel in Velazquez analyzed the 

relevance of the information to the issue of the officer's 

ability to accurately perceive events. It did not address 

whether the evidence's probative value justified piercing the 

psychologist-patient privilege. 
20 A-2739-13T2

credibility. Ibid. The present matter, by contrast, involves 

no such minutia; instead, defendant seeks to impeach Marjie's 

observation that she was dragged out of Charlie's house by her 

hair. No showing has been made that additional evidence of 

substance abuse or mental health disorders would impeach her 

ability to perceive and recall such an event.10

Although defendant refers to Marjie as the "complaining 

witness," we also find no basis to conclude she waived her 

privilege. Cf. Mauti, supra, 208 N.J. at 538-39 (stating that 

to pierce the privilege a defendant must show that "a 

constitutional right is at stake[] or . . . a party has 

explicitly or implicitly waived the privilege"). Marjie is a 

crime victim. That does not make her a party to this case, nor 

would it be accurate to say the State is "claiming through" a 

crime victim when it prosecutes a case. Cf. N.J.R.E. 506(d) 

(stating there is no physician-patient privilege where patient's 

condition "is an element or factor of the claim or defense of 

 

10 Notwithstanding one party-goer's testimony that defendant did 

not drag Marjie out by her hair, there was significant evidence, 

in addition to Marjie's testimony, that she was removed against 

her will. This included evidence that she left the house 

without even taking the time to put on shoes or a jacket; she 

went with a man who had already struck her once in the head and 

threatened to kill her; and the "road rash" on her left leg, 

indicating she had been dragged. 
21 A-2739-13T2

the patient or of any party claiming through or under the 

patient"). 

We have previously addressed, without deciding, the 

question whether, by signing a criminal complaint, a victim 

implicitly waived her privilege "at least insofar as [concerned] 

the diagnosis of her mental condition" that the defendant 

allegedly caused. See State v. McBride, 213 N.J. Super. 255, 

270-71 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987). 

Yet, there is no evidence Marjie signed a criminal complaint, 

nor does she allege a mental condition that defendant caused. 

Furthermore, the court in McBride determined that since the 

State placed in evidence the victim's own mental and 

neurological condition, it would be unfair to deprive the jury 

of information that would enable it to appraise the accuracy of 

the diagnosis. See Id. at 262, 269-72. The State has made no 

similar effort to place Marjie's mental health in issue in this 

case.

Defendant also contends it was reversible error for the 

court to preclude cross-examination about whether Marjie had 

used oxycodone in the past, after she denied using it the night 

of the assault. Evidence of habitual drug use is rarely 

admissible to establish drug use on a particular day. State v. 

Wormley, 305 N.J. Super. 57, 65 (App. Div. 1997), certif. 
22 A-2739-13T2

denied, 154 N.J. 607 (1998). We found harmful error when the 

court barred inquiry into a victim's drug usage in Wormley. Id.

at 64-68. However, in that case, there were serious gaps and 

inconsistencies in the victim's reported observations of the 

crime. Id. at 67-68. Defendant has failed to establish a 

similar predicate for exploring Marjie's past drug use in this 

case. 

In sum, the court did not err in barring discovery of 

Marjie's mental health and medical records, and restricting 

cross-examination of past drug use. 

III.

Defendant raises several instances of prosecutorial 

misconduct that he claims, either individually or as a whole, 

deprived him of a fair trial. Only one claim of error warrants 

discussion. It pertains to the State's cross-examination of the 

party-goer who testified that defendant did not drag Marjie out 

of the house by her hair. The questioning implied that the 

witness had changed his testimony at the request of another 

person:

Q. Now, since that point, since that 

incident, you've been – I guess you've 

received letters or you heard about people –

witnesses in the case receiving letters, 

correct?

A. No.
23 A-2739-13T2

Q. You didn't hear about any letters 

being sent out asking people to change their 

version of the story?

[DEFENSE ATTORNEY]: Objection.

The judge then excused the jury and asked the prosecutor for an 

offer of proof. 

[ASSISTANT PROSECUTOR]: Judge, we were 

told through another witness . . . as well 

as this witness [last month] . . . that 

there was, in fact, a letter sent to him 

asking him to change his story.

THE COURT: From who?

[ASSISTANT PROSECUTOR]: This . . . 

witness couldn't say for certain. He said 

it was sent to him from — what I believe 

from MCCI.

THE WITNESS: No.

THE COURT: Do you have the letter?

[ASSISTANT PROSECUTOR]: We don't have 

a copy of the letter. It was never sent to 

us.

THE COURT: So you ask a question that 

you don't have an offer of proof to 

substantiate?

[ASSISTANT PROSECUTOR]: Judge, it's a 

good faith basis for us that we have through 

defense counsel's own witness telling us 

this.

THE WITNESS: I never said that. 

The court found that the prosecutor lacked a sufficient 

basis to make this inquiry and sustained the objection. When 
24 A-2739-13T2

the jury reentered, the judge instructed, "Folks, I have 

sustained the last objection. So the last question that was 

posed to the witness will be disregarded by you." 

Prosecutorial misconduct may be grounds for reversal where 

the misconduct "was so egregious that it deprived the defendant 

of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). 

"[T]o warrant a new trial the prosecutor's conduct must have 

been clearly and unmistakably improper, and must have 

substantially prejudiced [a] defendant's fundamental right to 

have a jury fairly evaluate the merits of his defense." State 

v. Smith, 167 N.J. 158, 181-82 (2001) (internal quotation marks 

and citation omitted). In making this assessment, a reviewing 

court "must consider (1) whether defense counsel made timely and 

proper objections to the improper remarks; (2) whether the 

remarks were withdrawn promptly; and (3) whether the court 

ordered the remarks stricken from the record and instructed the 

jury to disregard them." Frost, supra, 158 N.J. at 83. 

As a threshold matter, we are not convinced the 

prosecutor's question was improper. "[A] question in crossexamination is improper where 'no facts concerning the event on 

which the question was based were in evidence and the 

[questioner] made no proffer indicating his ability to prove the 

occurrence.'" Manata v. Pereira, 436 N.J. Super. 330, 348 (App. 
25 A-2739-13T2

Div. 2014) (quoting State v. Rose, 112 N.J. 454, 500 (1988)). 

In order to have a good faith basis to inquire about the alleged 

letter, the State was not necessarily required to produce the 

letter itself, provided the State presented other proof of its 

existence. 

However, even assuming the question was improper, it did 

not constitute egregious misconduct warranting a new trial. See

Frost, supra, 158 N.J. at 83. The question was vague. It did 

not identify the purported sender of the letter, nor its 

substance. Furthermore, after defense counsel objected, the 

judge swiftly and emphatically instructed the jury to disregard 

the question. We presume the jury followed those instructions. 

State v. Loftin, 146 N.J. 295, 390 (1996).

Defendant's remaining claims of prosecutorial misconduct 

pertain to remarks in the prosecutor's opening and closing 

statements. We note that defense counsel did not object to 

these remarks. "Generally, if no objection was made to the 

improper remarks," they "will not be deemed prejudicial." 

Frost, supra, 158 N.J. at 83. Having reviewed the statements 

carefully, we are unconvinced that there was error, let alone 

plain error, warranting a new trial. Any further discussion is 

not warranted. R. 2:11-3(e)(2).
26 A-2739-13T2

IV.

Defendant submits, as plain error, that a "specific 

unanimity charge" was required for the second-degree charge of 

serious bodily injury aggravated assault of Marjie. Defendant 

contends the jury may have reached a fragmented verdict because 

the State presented evidence of two distinct assaults: the headbutting and the attack in the park. Furthermore, the jury could 

have been divided as to whether defendant was in a 

disassociative state during one assault. We are unconvinced.

"[I]n cases where there is a danger of a fragmented verdict 

the trial court must upon request offer a specific unanimity 

instruction." State v. Frisby, 174 N.J. 583, 597-98 (2002) 

(internal quotation marks and citation omitted). When the 

request is not made, as in this case, we must determine whether 

the absence of a specific unanimity charge "was clearly capable 

of producing an unjust result." Id. at 598 (citing R. 2:10-2). 

The Court found such plain error in Frisby, because the State 

offered "[d]ifferent theories . . . based on different acts and 

entirely different evidence" in support of the same charge. Id.

at 599-600. 

Nothing of the kind occurred in this case. The State 

presented evidence of a continuum of violence during the 

evening. Defendant did not dispute that the physical attacks 
27 A-2739-13T2

occurred. Furthermore, defendant inflicted the most serious 

harm in the park, when he tore away Marjie's lip, inflicted 

multiple blows to her head, and twice rendered her unconscious. 

We perceive no realistic possibility that a minority of jurors 

was willing to ground a second-degree assault conviction solely 

on the head-butting incident. Rather, in order to find 

defendant guilty of serious bodily injury aggravated assault, 

the jurors must have been unanimous that defendant also 

committed the attack in the park, and that he did so 

purposefully or knowingly and not while in a disassociative 

state that deprived him of the ability to know the "nature and 

quality" of what he was doing or to "know that what he was doing 

was wrong." N.J.S.A. 2C:4-1. 

Finally, we discern no merit in defendant's challenge to 

his sentence. The court's findings of fact regarding 

aggravating and mitigating factors were supported by evidence in 

the record; the court correctly applied the sentencing 

guidelines; and the court did not abuse its discretion in 

imposing its sentence. State v. Cassady, 198 N.J. 165, 180-81 

(2009); State v. Roth, 95 N.J. 334, 364-66 (1984). The court 

addressed the factors under State v. Yarbough, 100 N.J. 627, 

643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 

L. Ed. 2d 308 (1986), in deciding to impose concurrent 
28 A-2739-13T2

sentences, despite the fact that defendant assaulted two victims 

and committed crimes in two separate places. We are also 

satisfied the court fairly considered, and rejected, defendant's 

argument that mitigating factor four should be considered. We 

shall not disturb that finding. 

Affirmed.