SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5531-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NYFEE MALLORY,

Defendant-Appellant.

____________________________

Argued January 28, 2019 – Decided February 8, 2019

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 13-05-0438.

Susan Brody, Deputy Public Defender, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Susan Brody, of counsel and on the 

brief).

Michele C. Buckley, Special Deputy Attorney General/

Special Assistant Prosecutor, argued the cause for 

respondent (Michael A. Monahan, Acting Union

County Prosecutor, attorney; Michele C. Buckley, 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NOT FOR PUBLICATION WITHOUT THE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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Appellant filed a pro se supplemental brief.

PER CURIAM

A Union County grand jury charged defendant Nyfee Mallory, and his two 

co-defendants, Derrick Dunn and Corey Winston, in a four-count indictment 

with first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree felony 

murder, N.J.S.A. 2C:11-3(a)(3) (count two); second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession 

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). The 

trial judge later granted defendants' motion to sever their cases, and thereafter 

denied defendant's motion to suppress the statements he gave to police 

concerning his involvement in the offenses.

Following a multi-day trial, the jury convicted defendant on counts one 

and two, and acquitted him on both weapons charges. After merging count one 

into count two, the judge sentenced defendant to a thirty-five-year term on count 

two, with a thirty-year period of parole ineligibility. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL JUDGE'S ERROR IN FAILING TO 

INSTRUCT THE JURY SUA SPONTE AS TO THE 

AFFIRMATIVE DEFENSE TO FELONY MURDER 

DEPRIVED DEFENDANT OF HIS 
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CONSTITUTIONAL RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL. U.S. CONST. [AMENDS.] VI, 

XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. 

(Not Raised Below).

POINT II

DEFENDANT WAS DEPRIVED OF HIS 

CONSTITUTIONAL RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL BY THE JUDGE'S 

INSTRUCTION REPEATEDLY REFERRING TO A 

FLAWED AND MISLEADING EXAMPLE OF 

ACCOMPLICE LIABILITY HE HAD DEVISED, 

WHICH HAD BEEN FOUND BY THIS COURT TO 

BE INACCURATE IN A PREVIOUS CASE OVER 

WHICH HE HAD PRESIDED. U.S. CONST.

[AMENDS.] VI, XIV; N.J. CONST. (1947) ART. I, 

PARS. 1, 9, 10. (Not Raised Below).

POINT III

DEFENDANT WAS DEPRIVED OF HIS 

CONSTITUTIONAL RIGHT TO DUE PROCESS 

WHEN THE TRIAL COURT FAILED TO EXCLUDE 

AN AUDIOTAPE THAT WAS OF MINIMAL 

EXCULPATORY VALUE AND NECESSARILY 

CREATED A DEVASTATINGLY PREJUDICIAL 

IMPACT. U.S. CONST. [AMENDS.] VI, XIV; N.J. 

CONST. ART. 1, PARS. 1, 9, 10. (Not Raised Below).

In addition, defendant argues in his pro se supplemental brief for the first 

time on appeal that "the trial court's charge on accomplice liability was deficient 

because it was not tied to the facts of the case."
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After reviewing the record in light of the contentions advanced on appeal, 

we affirm.

I.

On the morning of February 20, 2012, a group of men were playing soccer 

on a field in a public park. One of the players, Felipe Rojas, noticed three young 

men cross over the bridge from the school across the street, and approach a 

concession stand by the field. Rojas testified that the men were dressed in black. 

One of the men, who was wearing pink gloves, began doing push-ups. 

Rojas later saw that a fourth man had joined the group. Rojas soon heard 

a loud "bang," which he believed was the sound of a garbage can falling over. 

However, he noticed that one of the men was laying on the ground, and the other 

three men were running away. The victim got up, and Rojas saw that he was 

bleeding from the neck. Rojas testified that the victim began walking in an 

unstable manner before falling to the ground near a goalpost.

At approximately 10:50 a.m., a Roselle police officer received a report of 

shots being fired near the soccer field. When he arrived at the scene, he found 

the victim lying on the ground, motionless and unresponsive. The victim was 

surrounded by soccer players, who were trying to administer first aid. The 

officer called for emergency assistance. While the victim was being treated, the 
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police recovered his cell phone and twenty-one bags of marijuana he was 

carrying from the ambulance. The efforts to revive the victim were 

unsuccessful, and the medical examiner testified that his death was caused by a 

single gunshot wound to the left side of his neck, which severed his left and right 

carotid arteries and his left jugular vein.

Other police arrived and tracked the victim's trail of blood from where 

they found him on the soccer field, to a larger pool of blood near the concession 

stand. There, the police found a .45 caliber shell casing.

Another police officer was in the area when the shooting report was 

received. He saw two men, dressed all in black, who matched descriptions given 

by witnesses, and who appeared to have just stopped running. The officer 

detained the men, who were later identified as co-defendants Dunn and Winston. 

Dunn was carrying pink gloves. The police later released the two men.

Later that night, the police recovered a loaded .45 caliber handgun from 

under a shrub near the door of a nearby house. Ballistics analysis confirmed 

that the .45 cartridge found near the concession stand was fired from the gun. 

There were no fingerprints on the gun, but it contained a mix of DNA. Dunn 

was identified as a major contributor to this mix, while defendant and Winston 

were excluded as possible contributors.
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The police also recovered a jacket that a woman found on the playground 

area of a school that was across the street from the field. The jacket had a 

recognizable "DX" marking on it, and defendant later acknowledged that it 

belonged to him. In addition, based upon DNA testing, defendant could not be 

excluded as a possible contributor to the DNA found on the jacket, while Dunn 

and Winston were excluded as possible contributors.

Two days after the murder, defendant and his father voluntarily appeared 

at police headquarters. Defendant told the police there was a false rumor going 

around at his school that he was involved in the shooting, and he wanted to set 

the record straight. The police transported defendant to the prosecutor's office,1

and gave defendant his Miranda2rights. Defendant proceeded to make two 

statements concerning the incident.

In the first statement, defendant admitted he met with Dunn and Winston 

on the morning of February 20, but he denied being involved in the murder. 

Defendant stated that he, Dunn, and Winston planned to pool their money to buy 

marijuana from the victim. Defendant first went to Winston's house, and the 

 

1

 Defendant's father did not accompany him to the prosecutor's office and, 

although he went there separately later in the day, he did not see his son again 

that day.

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
7

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two men walked to a street corner where they met Dunn. The group bought a 

cigar in a store, and walked down the street smoking it, and then smoking 

marijuana.

Dunn asked defendant to borrow his phone, and defendant gave it to him. 

Dunn walked away and spoke to someone on the phone as he paced back and 

forth between two streets. Defendant retrieved his phone, and walked home. 

Defendant told the police he stayed at home for about thirty minutes before 

leaving to pick up his girlfriend. He claimed that he and his girlfriend spent the 

day in Jersey City. While there, a friend named Neil Bailey called and told 

defendant that the police were questioning people. Another friend called and 

told defendant that the victim had been shot and killed.

When defendant learned that Dunn and Winston had been released by the 

police, defendant said he tried to call them, but they did not answer their phones. 

He confirmed that Dunn had a pair of pink gloves, but said he did not know if 

Dunn was wearing them on the day of the murder.

After defendant completed his statement, the detectives arrested him. 

While the detectives were preparing the complaints, defendant asked to make 

another statement, and the detectives again gave defendant his Miranda

warnings.
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In this statement, defendant admitted to being involved in the incident at 

the soccer field. Defendant told the detectives that on the morning of February 

20, he exchanged a number of calls and text messages with Dunn and Winston. 

During these discussions, Dunn told defendant and Winston that they needed to

do "a come up," which defendant explained was a way to get money, such as by 

robbing someone. The group decided to rob a marijuana dealer of whatever 

money and drugs he might be carrying.

Defendant walked to Winston's house, and the two men soon went to meet 

Dunn. Winston and Dunn were wearing black clothes. Defendant wore his 

"DX" jacket. When Dunn arrived, he told them he had "the strap," which was a 

term the men used to refer to a gun. Dunn also showed them the handgun. Dunn 

stated he was going to use the gun to get "the come up." Defendant knew this 

gun was a .45 caliber pistol because he and Dunn had picked it up in Newark 

only two weeks earlier. Defendant stored the gun and bullets in a cloth bag near 

a garbage can in his backyard, and Dunn also had access to it.

Defendant told the detectives that Dunn had drawn the gun and pointed it 

at a crowd during a party a few nights before the murder. Later that same night, 

defendant was driving his father's car with Dunn in the passenger seat. Dunn 

told defendant to follow another man's car. Defendant pulled up next to the car 
9

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and Dunn took out the gun and pointed it at the occupants in the other car, who 

ducked as defendant drove away. Defendant also told the detectives that Dunn 

had used the gun in robberies on two separate occasions prior to the murder.

Dunn took defendant's phone and used it to call the victim on the 

speakerphone so all three men could listen in.3 Defendant stated that Dunn used 

his phone because they did not want the victim to know it was Dunn who was 

calling. Dunn gave the victim the name of another person who was known to 

smoke marijuana when the victim answered the phone. Dunn told the victim he 

wanted to buy twenty-one bags of marijuana, and also asked the victim to bring 

cash for change. The victim did not have any cash, but agreed to bring the 

marijuana to the park to complete the transaction.

Defendant stated that the men planned to take two bags each of marijuana 

to smoke, and then sell the rest. They later decided that each of them would get 

seven bags.

Winston and Dunn were wearing black clothes. Defendant wore his "DX" 

jacket. Because Dunn's jacket was even more distinctive, defendant stated he 

gave his jacket to Dunn to wear so the victim would not recognize him from a 

 

3

 The police obtained the records of these calls from defendant's cellphone and 

the State introduced this evidence at the trial.
10 A-5531-16T4

distance. Based upon Dunn's reputation, the group was afraid the victim would 

not approach them if he knew Dunn was involved in the deal.

Defendant, Dunn, and Winston went to the park and hid near the 

concession stand. As the victim approached, he recognized Dunn and realized 

he was going to be robbed. The victim turned to get away, but defendant told 

the detectives that Dunn shot the victim in the neck. Defendant then ran home, 

and Dunn and Winston ran away as well. Defendant told the detectives that he 

had lied to the police during his first statement because he was afraid he might 

be killed if he implicated Dunn in the murder.

Once he got home, defendant called Bailey a number of times before his 

friend finally answered. Bailey testified that he lived near the park, and 

defendant asked him to look out the window and let him know what was 

happening. Defendant later told Bailey not to tell anyone that he had called him 

on the day of the murder.

Defendant did not testify at the trial. He called his father as his only 

witness. Defendant's father stated that defendant left the house around 9:30 a.m. 

on the morning of the murder, and returned between 10:00 a.m. or 10:30 a.m., 

looking "happy," and asked to borrow the car to pick up his girlfriend. 
11 A-5531-16T4

Defendant's father believed his son left the house again around 11:00 a.m., 

although he admitted he was not paying attention to the time.

II.

In Point I of his brief, defendant argues that the trial judge erred in failing 

to sua sponte charge the statutory defense to felony murder, N.J.S.A. 2C:11-

3(a)(3). Because defendant did not raise this issue at trial, we review it for plain 

error. State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-2). To warrant 

reversal, the error must be "clearly capable of producing an unjust result." Ibid. 

"The error must be considered in light of the entire charge and must be evaluated 

in light 'of the overall strength of the State's case.'" Id. at 90 (quoting State v. 

Chapland, 187 N.J. 275, 289 (2006)). Applying this standard, we reject 

defendant's contention.

N.J.S.A. 2C:11-3(a)(3) is an affirmative defense to felony murder. State 

v. Martin, 119 N.J. 2, 22-23 (1990). In pertinent part, the statutory defense 

provides as follows:

(a) Except as provided in [N.J.S.A.] 2C:11-4, criminal 

homicide constitutes murder when:

(3) It is committed when the actor, acting either alone 

or with one or more persons, is engaged in the 

commission of, or an attempt to commit, or flight after 

committing or attempting to commit robbery, . . . and 

in the course of such crime or immediate flight 
12 A-5531-16T4

therefrom, any person causes the death of a person other 

than one of the participants; except that in any 

prosecution under this subsection, in which the 

defendant was not the only participant in the underlying 

crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way 

solicit, request, command, importune, cause or aid the 

commission thereof; and

(b) Was not armed with a deadly weapon, or any 

instrument, article or substance readily capable of 

causing death or serious physical injury and of a sort 

not ordinarily carried in public places by law-abiding 

persons; and

(c) Had no reasonable ground to believe that any other 

participant was armed with such a weapon, instrument, 

article or substance; and

(d) Had no reasonable ground to believe that any other 

participant intended to engage in conduct likely to 

result in death or serious physical injury.

[N.J.S.A. 2C:11-3(a)(3).]

These four prongs, which must all be met for the statutory defense to 

apply, "focus on whether the accomplice undertook a homicidal risk or could 

have foreseen that the commission of the felony might result in death." Walker, 

203 N.J. at 84 (quoting Martin, 119 N.J. at 22-23).

In order to amount to plain error, a defendant who fails to request a charge 

on a defense must demonstrate that it was clearly indicated by the evidence. Id.
13 A-5531-16T4

at 87. The court is not required "to sift through the entire record in every trial 

to see if some combination of facts and inferences rationally sustain a[n 

unrequested] charge." State v. Rivera, 205 N.J. 472, 490 (2011) (alteration in 

original) (internal quotation marks omitted) (quoting State v. Thomas, 187 N.J. 

119, 134 (2006)). Instead, the need for the charge must "jump off" the proverbial 

page. State v. Denofa, 187 N.J. 24, 42 (2006). 

Thus, a "[d]efendant ha[s] the burden to produce some evidence in support 

of each prong of the defense, irrespective of whether there was strong evidence 

to the contrary." Walker, 203 N.J. at 87; see also State v. Smith, 322 N.J. Super. 

385, 396-97 (App. Div. 1999) (holding that the defendant must present some 

evidence supporting all four factors of N.J.S.A. 2C:11-3(a)(3)). When the 

defendant satisfies this obligation, the burden then shifts to the State to disprove 

the defense beyond a reasonable doubt. N.J.S.A. 2C:1-13(b)(1)-(2); see also

Smith, 322 N.J. Super. at 398.

Defendant did not meet his burden of production in this case. Although 

defendant's trial theory was that he was not involved in the robbery or murder, 

and was not even present during the offense, he did not present any evidence to 

support this theory, or any evidence that would satisfy the four prongs of the 
14 A-5531-16T4

statutory defense set forth in N.J.S.A. 2C:11-3(a)(3). Instead, there was 

significant evidence to the contrary.

Specifically, defendant told the detectives that he, Dunn, and Winston 

devised the plan together to "come up" with money by robbing the victim. The 

three men also planned how to divide any money or drugs taken from the victim 

after the robbery. Defendant's phone was used to set up the victim, and 

defendant gave Dunn his coat so the victim would not immediately recognize 

him. The State also produced witnesses who placed three men at the scene with 

the victim before the murder.

While there is evidence in the record that Dunn was the shooter, this only 

provided support for factors N.J.S.A. 2C:11-3(a)(3)(a) and (b). There was no 

evidence supporting factors N.J.S.A. 2C:11-3(a)(3)(c) and (d). Defendant told 

the detectives throughout the interview that he knew Dunn was carrying the 

handgun, which the two had obtained in Newark just a couple of weeks before 

the robbery. Dunn also told defendant and Winston prior to the murder that he 

intended to use the weapon "to get the come up." In addition, defendant knew 

from personal experience that Dunn was using the gun in the days before the 

murder to rob and scare a number of different individuals. 
15 A-5531-16T4

Under these circumstances, we cannot conclude that defendant had no 

reasonable ground to believe that Dunn was armed with a weapon under N.J.S.A. 

2C:11-3(a)(3)(c), and no reasonable ground to believe that Dunn intended to 

engage in conduct likely to result in the victim's death or serious physical injury. 

Because the facts did not clearly indicate the appropriateness of charging the 

statutory defense, the judge did not commit plain error by failing to instruct the 

jury concerning it.

III.

In Point II of his counseled brief, and in the only point raised in his pro se 

supplemental brief, defendant argues that the judge gave "a flawed and 

misleading example of accomplice liability" during his final charge to the jury 

and in response to the jury's subsequent questions about this concept. This 

argument stands in stark contrast to defense counsel's statement during the 

charge conference that the example would "make it easier for the jury to 

understand accomplice liability." Because there was no objection to the court's 

instruction at trial, we review the claimed error under the plain error standard.
16 A-5531-16T4

R. 2:10-2. For the following reasons, we conclude that defendant's contentions 

on this point lack merit.4

It is well settled that "[a]ppropriate and proper charges are essential for a 

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) 

(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613

(2004)). Jury instructions must give a "comprehensible explanation of the 

questions that the jury must determine, including the law of the case applicable 

to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J.

281, 287-88 (1981)). 

"A trial court is vested with discretion in delivering the jury instructions 

that are most applicable to the criminal matter before it." State v. Funderburg, 

225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 (1960)). To 

 

4

 Citing two unreported opinions, defendant asserts that other panels of this 

court have found the judge's example to be "inaccurate." We cite these 

unpublished opinions only for context to address defendant's arguments, and not 

as precedential authority. See R. 1:36-3. In the first of these cases, State v. 

Merrett, No. A-5443-07 (App. Div. Feb. 10, 2011), it is not clear whether the 

judge's example was used because it is not quoted in the opinion. In any event, 

the panel held that looking at the charge as a whole, the judge "thoroughly and 

correctly instructed the jury on the elements of accomplice liability[,]" even 

though the panel agreed that the judge's example "might have been better 

phrased[.]" (slip op. at 25). Similarly, in State v. Green, No. A-0680-09 (App. 

Div. June 27, 2012), the panel concluded that taken as a whole, the instruction 

passed muster under a plain error standard. (slip op. at 10-11).
17 A-5531-16T4

assess the soundness of the jury instruction, we consider "how and in what sense, 

under the evidence before them, and the circumstances of the trial, would 

ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 

N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted) 

(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)). 

Applying these principles, we discern no grounds for concluding that the 

judge's instruction on accomplice liability, including the example he used to 

illustrate the charge, was defective as a matter of plain error. Under N.J.S.A. 

2C:2-6(c), 

A person is an accomplice of another person in the 

commission of an offense if:

(1) With the purpose of promoting or facilitating the 

commission of the offense; he [or she]

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person 

in planning or committing it; or

(c) Having a legal duty to prevent the commission of 

the offense, fails to make proper effort so to do; or

(2) His [or her] conduct is expressly declared by law to 

establish his complicity.

"[A] jury must be instructed that to find a defendant guilty of a crime 

under a theory of accomplice liability, it must find that he 'shared in the intent 
18 A-5531-16T4

which is the crime's basic element, and at least indirectly participated in the 

commission of the criminal act.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 

(App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). Here, the 

accomplice liability charge applied to the charge of robbery. A person is guilty 

of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another immediately to commit any 

crime of the first or second degree.

An act shall be deemed to be included in the phrase "in 

the course of committing a theft" if it occurs in an 

attempt to commit theft or in immediate flight after the 

attempt or commission.

[N.J.S.A. 2C:15-1(a).]

In addition to instructing the jury on these principles, the judge provided 

the following example to the jury while discussing accomplice liability:

Before I give you the definition and elements of 

accomplice liability, I would like to begin with an 

example to help you in understanding this concept.

A friend comes by your house to pick you up and 

says:

Hey, do me a favor.

Will you drive my car?
19 A-5531-16T4

I have to go to the bank and make a withdrawal 

and I don't want to pull the car into the lot because it is 

hard to find a parking space. It is a busy street, so just 

stay in the no-parking zone in the front of the bank and 

this way when I come out, I can just jump into the car 

and leave. It will save me a lot of time.

You agree.

You drive the car to the bank, pull up in front and 

leave the engine running while your friend goes into the 

bank. While you are sitting in the car, your friend 

comes running out of the bank, jumps into the car and 

says, Okay, let's go.

You are driving down the street and suddenly 

police cars are coming at you from every direction. 

You pull over and the police order you out of the car.

You explain: Wait a minute officer. I didn't do 

anything. What are you doing?

The police say, Your friend has robbed the bank. 

The withdrawal that you thought your friend was 

making was really a bank robbery, but you did not know 

it.

In this example, you are not an accomplice. You 

are not an accomplice because you did not share the 

purpose to commit the crime. Even though you were 

present and involved, you did not have the purpose to 

commit that specific crime. You cannot be held 

responsible for the actions of the other person who 

committed the bank robbery.
20 A-5531-16T4

The judge continued his instructions by modifying the facts in his first 

example to give the jury an example of a situation where the defendant would 

be guilty of robbery under accomplice liability. The judge stated:

In the second example, I will alter the facts 

slightly.

Your friend calls you on the phone and says: I 

need a ride to the bank. I have to make a withdrawal.

As you pull up to the front of the bank with your 

friend, he pulls out a gun and says, I'll be right back. 

I'm going in to rob the bank. You see the gun and you 

now realize he is not making a withdrawal, he is going 

to rob the bank. You sit and wait in the car for him to 

return and you assist him in the get-away.

In this example, you have now shared the purpose 

for him to commit the act, you knew he had the gun and 

he told you he was going to rob the bank. You assisted 

him or aided him in committing the crime. You did this 

by waiting for him outside the bank and then driving 

him away. You did all of this with the purpose that the 

crime of robbing the bank be committed. You shared 

the purpose for him to commit the crime. You are, 

therefore, an accomplice.

The difference between the two examples is the 

phrase "share the purpose to commit the crime."

Defendant did not object to this charge when the judge gave it to the jury. 

For the first time on appeal, he now argues that the charge, and the other 

references to the two examples the judge made in his instructions, were defective 
21 A-5531-16T4

because "[n]owhere in the second part of the example is the alleged accomplice's 

purpose even mentioned; the only state of mind mentioned in the factual 

hypothesis is one of knowing what the principal intends." We disagree.

Shortly after giving the jury the examples set forth above, the judge 

specifically instructed the jury that it should only convict defendant under 

accomplice liability if he had the requisite mental state. The judge explained:

Remember that this [d]efendant can be held to be 

an accomplice with equal responsibility only if you find 

beyond a reasonable doubt that he possessed the 

criminal state of mind that is required to be proven 

against the person who actually committed the criminal 

acts.

In order to convict the [d]efendant as an 

accomplice to the crime of first-degree robbery, you 

must find that the [d]efendant had the purpose to 

participate in the first-degree robbery. He must act with 

the purpose of promoting or facilitating the commission 

of that substantive crime.

It is not sufficient to prove only that the 

[d]efendant had knowledge that another person was 

going to commit the crime charged. The State must 

prove that it was [d]efendant's conscious object that the 

specific conduct charged be committed.

To reiterate, the elements of accomplice liability 

are:

One, that an offense was committed.
22 A-5531-16T4

Two, that this [d]efendant did solicit, aid, agree 

to aid, or attempt to aid another in committing or 

planning the offense.

Three, that this [d]efendant's purpose was to 

promote or facilitate the commission of the offense.

Four, that this [d]efendant possessed the criminal 

state of mind that is required to be proven against the 

person who actually committed the criminal act.

During its deliberations, the jury asked the judge to further explain the 

example he included in the final charge. In his response to this inquiry, the 

judge again told the jurors that in order to find an accomplice liable for the 

conduct of another in the bank robbery example, the jury would have to conclude 

that the accomplice and the principal both had the state of mind necessary to 

support a conviction for that offense. In addition, the judge instructed the jurors 

to look at the accomplice charge in its entirety. Defendant's attorney stated that 

he agreed with the judge's answer to the jury's question.

As noted above, "in reviewing any claim of error relating to a jury charge, 

the 'charge must be read as a whole in determining whether there was any 

error[.]'" State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (quoting 

State v. Torres, 183 N.J. 554, 564 (2005)). Applying this rule, we are satisfied 

that the additional instructions to the jury following the example made clear to 

the jury that mere awareness that another person will commit a crime, without 
23 A-5531-16T4

the specific intent that the crime be committed, will not suffice for accomplice 

liability. The judge's example did not adequately address the required mental 

state, but any confusion that might have been caused was immediately clarified 

through the additional instructions. Reading the charge as a whole, we detect 

no error that was clearly capable of producing an unjust result. R. 2:10-2. 

Therefore, we reject defendant's arguments on this point.

IV.

Finally, defendant argues in Point III that the trial judge should have 

conducted a sua sponte hearing under Rule 104 in order to determine whether a 

strategic decision made by defense counsel was unduly prejudicial. We decline 

defendant's invitation to second-guess counsel's decision for the first time on 

appeal. R. 2:10-2.

While cross-examining the detective who took defendant's statements at 

the prosecutor's office, defense counsel advised the judge that he intended to 

introduce an audiotape of Dunn speaking to another person about the robbery.5 

In the tape, Dunn stated that: he and Winston were not involved in the robbery;

defendant was the one who shot the victim; and the other participant in the 

 

5

 This tape was made by the other individual's mother, who recorded it while 

Dunn was talking to her son at their front door.
24 A-5531-16T4

conversation should tell everyone in town Dunn and Winston "had nothing to do 

with" it.

The judge asked the prosecutor if he had any objection, and the prosecutor 

replied in the negative. The judge called a sidebar and, after ascertaining the 

content of the tape,6asked defense counsel, "You want this in?" Defense 

counsel replied, "Oh yeah. It sounds strange, but yes." Counsel explained that 

playing the tape would demonstrate why defendant made the decision to speak 

to the police to clear his name because it showed that there were false rumors 

started by Dunn and Winston going around about his possible involvement in 

the murder.7

Defense counsel then played the tape.8 In addition to stating that 

defendant was the shooter, Dunn also claimed during the tape that he tried to 

grab the victim after he was shot in order to help him. By cross-examining the 

detective, and showing him a photo of Dunn after he was arrested, counsel was 

 

6

 The tape was approximately 100 seconds in length.

 

7

 In his final argument to the jury, counsel repeated this argument, and also 

asserted that it showed that Dunn had attempted to shift the blame to his client 

almost immediately by "making up a story."

8

 The tape was marked for identification before it was played, but it was not 

admitted in evidence.
25 A-5531-16T4

able to attack Dunn's credibility by establishing that although the victim was 

bleeding profusely, Dunn did not have any blood on him when he was caught by 

the police.

Defendant now argues that the judge was obligated to conduct a hearing 

to determine whether the "minimal exculpatory value" of the tape was 

outweighed by the prejudice he may have suffered from having Dunn's statement 

that defendant was the shooter heard by the jury. We disagree.

Our Supreme Court has long recognized that a defendant generally has a 

right to defend a case as he or she sees fit. Thus, "[t]rial courts must carefully 

refrain from preempting defense counsel's strategic and tactical decisions and 

possibly prejudicing defendant's chance of acquittal." State v. Perry, 124 N.J. 

128, 162 (1991). Put another way,

[a] fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of 

counsel's challenged conduct, and to evaluate the 

conduct from the counsel's perspective at the time. 

Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption 

that counsel's conduct falls within the wide range of 

reasonable professional assistance; that is, the 

defendant must overcome the presumption that, under 

the circumstances, the challenged action "might be 

considered sound trial strategy."
26 A-5531-16T4

[Strickland v. Washington, 466 U.S. 668, 689 (1984) 

(quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)).]

Following these principles, we discern no plain error under the 

circumstances of this case. The tape was relevant to defendant's defense that he 

was wrongly implicated by Dunn and Winston who were spreading false rumors 

about him in an attempt to avoid blame themselves. While other attorneys might 

have made a different tactical decision, defense counsel provided an explanation 

for his strategy when questioned by the judge. Thus, the judge correctly 

refrained from preempting defense counsel's strategic and tactical decision. 

Perry, 124 N.J. at 162.

V.

In sum, we affirm defendant's convictions and sentence.9

Affirmed.

 

9

 As for the balance of any of defendant's arguments not expressly discussed 

above, they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).