SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1788-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS J. COVINGTON,

Defendant-Appellant.

________________________

Submitted September 16, 2021 – Decided October 20, 2021

Before Judges Gooden Brown and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 17-09-0163.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for 

respondent (Lauren Bonfiglio, Deputy Attorney 

General, of counsel and on the briefs). 

Appellant filed a supplemental pro se brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-1788-18

Following a jury trial, defendant was convicted of first-degree distribution 

of a controlled dangerous substance, namely, cocaine, N.J.S.A. 2C:35-5(a)(1),

2C:35-5(b)(1), and 2C:35-5(c) (count one); second-degree conspiracy to 

distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), 2C:35-5(b)(1), and 2C:35-

5(c) (count three); third-degree distribution of cocaine within 1000 feet of 

school property, N.J.S.A. 2C:35-7 and 2C:2-6 (count four); second-degree 

distribution of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1

and 2C:2-6 (count five); and third-degree possession of cocaine, N.J.S.A. 2C:35-

10(a)(1) (count six).1 He was sentenced to an aggregate extended term of 

twenty-four years' imprisonment, with a ten-year period of parole ineligibility. 

The convictions stemmed from a four-month sting operation during which a 

confidential informant (CI), defendant's childhood friend, conducted ten 

controlled drug purchases from defendant, obtaining over seven ounces of 

cocaine in total.

2

 New Jersey State Police Detective Douglas Muraglia 

1

 Defendant was charged with a co-defendant, Wayne Meyers, in counts three, 

four, five, and six. Meyers was charged separately in count two with seconddegree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(2), 2C:35-

5(c), and 2C:2-6. 

2

 Distribution of cocaine "in a quantity of five ounces or more" is a crime of the 

first degree. N.J.S.A. 2C:35-5(b)(1).
3

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coordinated the operation. Muraglia and the CI, Corey Thomas, were the State's 

chief witnesses at trial.

On appeal, in his counseled brief, defendant raises the following points 

for our consideration:

POINT I

DETECTIVE MURAGLIA'S REPEATED 

REFERENCES TO DEFENDANT'S MEETINGS 

WITH THOMAS AS "TRANSACTIONS" VIOLATED 

DEFENDANT'S RIGHT TO A FAIR TRIAL AND 

REQUIRE REVERSAL OF THE CONVICTIONS. 

U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 

PAR[A]S. 1, 9, AND 10.

POINT II

DEFENDANT WAS DENIED DUE PROCESS BY 

THE STANDARDLESS USE OF A LARGE NUMBER 

OF CONTROLLED BUYS TO ARRIVE AT FIRSTDEGREE CHARGES BASED ON THE AGGREGATE 

WEIGHT OF THE DRUGS FROM EACH BUY. U.S. 

CONST. AMEND. XIV; N.J. CONST. ART. I, 

PAR[A]S. 1, 9, AND 10.

POINT III

UNDER THE CIRCUMSTANCES OF THIS CASE, A 

TWENTY-FOUR-YEAR PRISON SENTENCE WITH 

TEN YEARS OF PAROLE INELIGIBILITY IS 

MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, 

AND SHOULD BE REDUCED.

In his pro se brief, defendant argues:
4

A-1788-18

POINT ONE

THE ADMISSION OF HEARSAY TESTIMONY 

BEFORE THE JURY FROM A WITNESS WHO WAS 

NOT THE ENGINEER OF THE MAP ADMITTED 

INTO EVIDENCE, WHICH HAD NOT BEEN 

PROPERLY AUTHENTICATED BY AN 

AVAILABLE ENGINEER OF THE MAP DEPRIVED 

THE DEFENDANT OF HIS SIXTH AMENDMENT 

RIGHT TO CONFRONTATION AND HIS DUE 

PROCESS RIGHT TO A FAIR TRIAL THEREFORE, 

THE CONVICTION SHOULD BE REVERSED.

POINT TWO

THE ADMISSION OF MORE THAN TWENTY INCOURT VOICE IDENTIFICATIONS BY 

DETECTIVE MURAGLIA OF THE DEFENDANT 

BEFORE THE JURY WITHOUT ANY GUIDING 

JURY INSTRUCTION ON HOW TO EVALUATE OR 

CONSIDER THE VOICE IDENTIFICATIONS 

DEPRIVED THE DEFENDANT OF HIS DUE 

PROCESS RIGHT TO A FAIR TRIAL THEREFORE 

THE CONVICTION SHOULD BE REVERSED.

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION BY 

PERMITTING DETECTIVE MURAGLIA TO 

AUTHENTICATE A VIDEO HE WAS NOT 

RESPONSIBLE FOR RECORDING, ALLOWING 

HIM TO NARRATE THE VIDEO FOR THE JURY, 

AND PERMITTING THE PROSECUTOR TO SHOW 

THE JURY AN ALTERED VERSION OF THE 

VIDEO THAT WAS NOT TIMELY TURNED OVER 

TO THE DEFENSE PRIOR TO TRIAL, WHICH ALL 

DEPRIVED THE DEFENDANT OF HIS DUE 
5

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PROCESS RIGHT TO A FAIR TRIAL THEREFORE 

THE CONVICTION SHOULD BE REVERSED.

POINT FOUR

THE STATE ENGAGED IN OUTRAGEOUS 

GOVERNMENTAL CONDUCT BY PERMITTING 

DETECTIVE MURAGLIA TO ENGAGE IN 

SENTENCING ENTRAPMENT, AND DIRECTING 

LAB TECHNICIAN TO CONDUCT A COMBINED 

WEIGHT OF ALL OF THE DRUGS TO GET THE 

DEFENDANT TO A FIRST-DEGREE CHARGE, 

WHICH UNDERMINED THE DEFENDANT'S DUE 

PROCESS RIGHT TO A FAIR TRIAL PROCESS 

THEREFORE THE CONVICTION SHOULD BE 

REVERSED.

POINT FIVE

THE DEFENDANT WAS DEPRIVED OF HIS SIXTH 

AMENDMENT CONSTITUTIONAL RIGHT TO 

CONFRONTATION BY DETECTIVE MURAGLIA 

TESTIFYING REPEATEDLY TO THE LAB 

REPORTS OF THE SEIZED DRUGS THEREFORE 

THE CONVICTION SHOULD BE REVERSED.

Having considered the arguments in light of the record and applicable legal 

principles, we reject each of the points raised and affirm.

I.

Following the adjudication of various pre-trial motions, an eight-day jury 

trial was conducted in May 2018, during which the State produced five 

witnesses. In addition to Muraglia and Thomas, two detectives who assisted 
6

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Muraglia by conducting surveillance during some of the controlled drug 

purchases, and an employee of the engineering company that created the official

drug-free school zone map introduced as evidence testified for the State. 

Defendant did not testify or produce any witnesses. The relevant facts based on 

the testimony of the witnesses and the admitted exhibits may be summarized as 

follows. 

Following his arrest in 2015 on drug distribution charges, Thomas, who 

had five prior criminal convictions consisting primarily of drug-related offenses,

agreed to cooperate with Detective Muraglia by purchasing cocaine from 

defendant in exchange for dismissal of the charges3and payment for his efforts.4 

As a result, between February and June 2016, Thomas conducted ten controlled 

purchases of cocaine from defendant under the supervision of Muraglia, a nineyear veteran of the New Jersey State Police who had "been involved in hundreds 

of narcotics investigations." 

According to Muraglia, after he instructed Thomas to call defendant and 

arrange to purchase "fifteen grams" of cocaine, Thomas set up the first 

3

 As a result of Thomas's cooperation, his charges were ultimately dismissed on 

Muraglia's recommendation.

4

 Thomas was paid about $2500 for the investigation.
7

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controlled purchase5for February 10, 2016. Immediately prior to the February 

10 meeting, Muraglia met with Thomas at a pre-arranged location and 

"conducted a thorough search of his person and his vehicle" with negative 

results. Muraglia then gave Thomas $600 to purchase the drugs and "equipped 

[Thomas] with an on-body recording device . . . to transmit the interaction 

between [them]" to Muraglia and the "other detectives . . . conducting 

surveillance of the[] drug buys." Next, Muraglia "initiated surveillance" of the 

ultimate meet location "on Riverside Avenue . . . in Trenton." There, Muraglia 

observed defendant "pull[] up" in a black Mazda SUV "directly next to" 

Thomas's vehicle. Wayne Meyers was "seated in the front passenger seat of 

[defendant's] vehicle." While the vehicles were beside each other, "they rolled 

down the window[s]." Muraglia then observed "an object . . . flying" from 

defendant's vehicle into Thomas's vehicle and "another . . . object going from . . . 

Thomas'[s] vehicle into [defendant's] vehicle." Defendant "[drove] off" 

immediately thereafter. As defendant pulled away, Thomas recited defendant's 

license plate number for identification purposes as Muraglia had instructed. A 

5

 Muraglia described a controlled purchase as "a purchase of drugs . . . 

facilitate[d]" by law enforcement. 
8

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subsequent "look[]-up" confirmed defendant was "the registered owner . . . of 

the vehicle."

A recording of the February 10 meeting between Thomas and defendant 

was captured on "the on-body recording device . . . affixed to . . . Thomas." The 

recording was played for the jury during the trial. Muraglia identified Thomas's 

voice on the recording from his prior familiarity with Thomas and defendant's 

voice from seeing "him seated . . . in the vehicle" in proximity to Thomas. Video 

surveillance footage of the February 10 meeting was also obtained "from a fixed 

pole camera" and was played for the jury during the trial. The video depicted 

the objects being "transferred from one vehicle to another" during the meeting. 6

After the meeting, Muraglia met with Thomas at a prearranged location

and conducted another "thorough search of his body and . . . vehicle" with 

negative results. Muraglia took custody of the "bag of cocaine" Thomas had 

purchased from defendant as well as "the on-body recorder" with which Thomas 

had been equipped. At Muraglia's request, Thomas also signed two

photographs: one of defendant, whom Thomas identified as the individual from 

whom he had "just purchased the drugs," and the other of Wayne Meyers, whom 

6

 Two versions of the same video were played for the jury, one version 

containing a "zoomed in" view of the "part where an object [was] transferred 

from [defendant's] vehicle to the informant's vehicle." 
9

A-1788-18

Thomas identified as the individual seated inside defendant's vehicle during the 

narcotics transaction. Subsequent testing by the New Jersey State Police 

Laboratory confirmed that the substance purchased from defendant constituted

"14.01 grams" of cocaine.

The other nine controlled drug purchases from defendant were conducted 

on March 10, 18, and 25, April 1, 6, 15, and 27, May 18, and June 15, 2016. All 

nine transactions were substantially similar to the first,7except that Thomas 

purchased twenty grams of cocaine from defendant for $800 during each of the 

March transactions, and twenty-five grams of cocaine for $1000 during each of 

the remaining transactions. Lab tests confirmed the purchases totaled over 200 

grams of cocaine. All ten transactions occurred at various locations in Trenton,

8

at least one of which was within 1000 feet of a school and 500 feet of a public 

housing building.

7

 Meyers was present for only the March 18 and June 15 transactions. An 

uncharged individual, Rayshawn Bethea, was in defendant's vehicle during the 

March 10 transaction. Additionally, there was no surveillance video of the other 

nine transactions and during several of those transactions, Thomas actually 

entered defendant's vehicle to conduct the exchange.

8

 With the exception of the April 15 transaction for which defendant arrived on 

foot, defendant traveled to all ten meeting locations in his black Mazda SUV.
10 A-1788-18

Thomas's account of the ten controlled drug purchases was completely 

consistent with Muraglia's. Thomas testified he had known defendant "[p]retty 

much" his whole life and selected defendant as a target for Muraglia's 

investigation. Thomas believed defendant would not question his desire to 

purchase cocaine from him for further distribution because Thomas had been 

selling drugs for over ten years.

Defendant's motion for judgment of acquittal at the close of the State's 

case, pursuant to Rule 3:18-1, was denied. Following the jury's guilty verdict

and the denial of defendant's motion for a new trial, R. 3:20-1, defendant was 

sentenced on April 23, 2019. A memorializing judgment of conviction was 

entered on May 6, 2019, and this appeal followed.

II.

In Point I of his counseled brief, defendant argues Muraglia's "repeated" 

references over his objections "to Thomas's meetings with defendant as 

'transactions'" constituted "impermissible opinion testimony on the ultimate 

issue in the case" because "whether defendant engaged in transactions with 

Thomas was the sole question the jury alone had to resolve." According to 

defendant, the impermissible testimony, which occurred "not fewer tha[n] 

twenty-five times," "unfairly bolstered Thomas's accounts of [his] meetings with 
11 A-1788-18

defendant," "unduly prejudiced the jury's finding of an essential element of the 

offenses," and denied him "a fair trial." Defendant further contends "[t]he single 

cautionary instruction" given by the trial court "sandwiched between mountains 

of improper testimony could not cure the prejudice."

Our Supreme Court has repeatedly held that proper use of expert opinions 

in narcotics prosecutions is limited to subjects that are beyond the understanding 

of the average juror and are generally inadmissible if the alleged drug 

transaction occurred in a straightforward manner that the average juror can 

readily understand. See State v. Simms, 224 N.J. 393, 403 (2016); State v. 

Sowell, 213 N.J. 89, 100 (2013); State v. McLean, 205 N.J. 439, 450 (2011). 

However, lay witness testimony may be admitted "in the form of opinions or 

inferences if it: (a) is rationally based on the witness' perception; and (b) will 

assist in understanding the witness' testimony or determining a fact in issue." 

N.J.R.E. 701. In that regard, perception "rests on the acquisition of knowledge 

through use of one's sense of touch, taste, sight, smell, or hearing." McLean, 

205 N.J. at 457 (citations omitted).

For police officers, lay opinions may "convey information about what the 

officer 'believed,' 'thought' or 'suspected.'" Id. at 460. "Traditional examples of 

permissible lay opinions include the speed at which a vehicle was traveling; the 
12 A-1788-18

distance of a vehicle from the intersection where an accident occurred; signs and 

behaviors indicative of an individual's intoxication"; "the meaning of street 

slang"; "whether a neighborhood is a 'high crime area'"; and "with an appropriate 

foundation, the value of personal property owned by the witness." Id. at 457-59

(citations omitted). On the other hand, lay opinion testimony is impermissible 

when it constitutes "an expression of a belief in defendant's guilt" and "an 

opinion on matters that were not beyond the understanding of the jury." Id. at 

463. Stated differently, lay opinion testimony is impermissible if is "not within 

[the witness's] direct ken . . . and as to which the jury is as competent as [the 

witness] to form a conclusion." Id. at 459 (first and second alterations in 

original) (quoting Brindley Fireman's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 

1955)).

"[A] trial court's evidentiary rulings are entitled to deference absent a 

showing of an abuse of discretion, i.e., there has been a clear error of judgment." 

State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration in original) (quoting 

State v. Harris, 209 N.J. 431, 439 (2012)). "Under that standard, an appellate 

court should not substitute its own judgment for that of the trial court, unless 

'the trial court's ruling "was so wide of the mark that a manifest denial of justice 

resulted."'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 
13 A-1788-18

148 N.J. 469, 484 (1997)). "Accordingly, such rulings 'are subject to limited 

appellate scrutiny,' as trial judges are vested 'with broad discretion in making 

evidence rulings.'" State v. Singh, 245 N.J. 1, 13 (2021) (first quoting State v. 

Buda, 195 N.J. 278, 294 (2008); then quoting Harris, 209 N.J. at 439).

Trial courts are not left without redress when potentially prejudicial 

testimony seeps into a trial. A particularly apt tool for such occasions is curative 

instructions, which "must be firm, clear, and accomplished without delay." State 

v. Vallejo, 198 N.J. 122, 134 (2009). "Delay may allow prejudicial evidence to 

become cemented into a storyline the jurors create in their minds during the 

course of the trial." State v. Herbert, 457 N.J. Super. 490, 506 (App. Div. 2019). 

"The adequacy of a curative instruction necessarily focuses on the capacity of 

the offending evidence to lead to a verdict that could not otherwise be justly 

reached." State v. Winter, 96 N.J. 640, 647 (1984). Thus, when there are 

numerous errors, "a single curative instruction may not be sufficient to cure the 

prejudice resulting from cumulative errors at trial." Vallejo, 198 N.J. at 136. 

Moreover, "[e]vidence that bears directly on the ultimate issue before the jury 

may be less suitable to curative or limiting instructions than evidence that is 

indirect and that requires additional logical linkages." Herbert, 457 N.J. Super. 

at 505.
14 A-1788-18

Here, it is undisputed that Muraglia testified as a lay witness, not an expert 

witness. In McLean, the Court "reversed the defendant's possession-with-intentto-distribute convictions because [the] testifying police officer, who observed 

the defendant hand only an item to an individual in exchange for money during 

a surveillance, expressed the opinion that a drug transaction had occurred." 

Simms, 224 N.J. at 404 (citing McLean, 205 N.J. at 443). In Simms, while the 

Court reversed the "defendant's various drug convictions" based on cumulative 

errors in "the admission of the expert testimony," id. at 396, the Court also found 

the admission of a police officer's hearsay statement improper, where he stated 

that he had "possibly observ[ed] a C.D.S. transaction" and that "there was a 

C.D.S. transaction taking place." Id. at 404.

Here, the facts are clearly distinguishable as Muraglia's references to 

"transactions" were made within a different contextual setting. Indeed, Muraglia 

was describing his observations of controlled drug purchases he had

orchestrated. His mistaken use of the term "transaction" to describe the 

prearranged meetings between Thomas and defendant neither communicated a 

belief in defendant's guilt nor gave an opinion on matters as to which the jury 

was just as competent to form a conclusion.

Moreover, the judge issued the following curative instruction to the jury:
15 A-1788-18

[L]adies and gentlemen of the jury, when you hear the 

word transaction, I'm going to strike that word. That's 

for you to decide . . . whether the activity amounts to a 

transaction. You're the fact finders, all right? So going 

forward, if that word is repeated, the same instruction 

would apply . . . .

Thereafter, when Muraglia again used the term "transaction," the judge 

sua sponte reminded the jury: "Same instruction. We just heard the word again 

. . . . It's the activity. Your decision-making controls as to the nature of the 

activity." Although Muraglia used the term "transaction" numerous times after 

the instructions were given, the instructions had a prophylactic effect by 

directing the jurors that the same instruction would apply if the word was 

repeated. Further, in the final jury charge, the judge instructed the jury "[a]ny 

testimony that [he] may have had occasion to strike [was] not evidence and shall 

not enter in [the jury's] final deliberations." Clearly, the jury was well aware 

that it was not to consider the word. See Herbert, 457 N.J. Super. at 503 ("The 

authority is abundant that courts presume juries follow instructions.").

In any event, the error was harmless given the overwhelming evidence of 

defendant's guilt. See State v. J.L.G., 234 N.J. 265, 306 (2018) (finding "errors 

harmless in light of the overwhelming evidence of defendant's guilt"). Both 

Muraglia and Thomas provided consistent accounts of all ten controlled drug 

purchases from defendant, which were corroborated by audio recordings of 
16 A-1788-18

conversations between Thomas and defendant, video surveillance footage of the 

first meeting, and the seizure of the prescribed quantity of cocaine sought to be 

procured. See Sowell, 213 N.J. at 107 (finding erroneously admitted expert 

testimony that a narcotics exchange occurred did not warrant reversal of 

defendant's conviction because of "overwhelming evidence," including an 

officer's observations of an item being transferred, immediate recovery of drugs 

from a bag where defendant was observed hiding the item, a video capturing the 

exchange, and defendant's admission).

In Point II of his counseled brief, defendant contends, "Muraglia directed 

[Thomas] to continue to conduct controlled buys over a four-month period so 

that the State could aggregate the weight of the drugs from each buy and charge 

a street-level dealer with first-degree weight." According to defendant, "this 

investigative technique," for which there are no "pre-existing standards," 

resulted in "sentencing entrapment" and a denial of "due process and 

fundamental fairness," warranting "a downgrade" to "a lower[] degree offense."

"New Jersey's doctrine of fundamental fairness 'serves to protect citizens 

generally against unjust and arbitrary governmental action, and specifically 

against governmental procedures that tend to operate arbitrarily.'" State v. 

Vega-Larregui, 246 N.J. 94, 132 (2021) (quoting Doe v. Poritz, 142 N.J. 1, 108 
17 A-1788-18

(1995)). "This unique doctrine is not appropriately applied in every case but 

only in those instances where the interests involved are especially compelling." 

Doe, 142 N.J. at 108. Indeed, "[i]t is appropriately applied in those rare cases 

where not to do so will subject the defendant to oppression, harassment, or 

egregious deprivation." Ibid. (quoting State v. Yoskowitz, 116 N.J. 679, 712 

(1989) (Garibaldi, J., concurring and dissenting)). Where the doctrine has been 

applied, "there is one common denominator in all of those cases: a determination 

that someone was being subjected to potentially unfair treatment and there was 

no explicit statutory or constitutional protection to be invoked." Id. at 109.

Those circumstances do not obtain here as statutory protections abound. 

First, N.J.S.A. 2C:35-5(c) explicitly allows for the aggregation of drug sales to 

determine the grade of offense. See N.J.S.A. 2C:35-5(c) ("[T]he quantity 

involved in individual acts of manufacturing, distribution, dispensing or 

possessing with intent to distribute may be aggregated in determining the grade 

of the offense . . . provided that each individual act . . . was committed within 

the applicable statute of limitations."); see also State v. Rivastineo, 447 N.J. 

Super. 526, 531 (App. Div. 2016) ("There are no facial ambiguities in N.J.S.A. 

2C:35-5(c) because the plain meaning is clear: a single substance, possessed on 
18 A-1788-18

different occasions with the intent to distribute, may be aggregated to reach the 

five-ounce, first-degree weight.").

Further, "[t]he New Jersey Code of Criminal Justice expressly provides 

entrapment as an affirmative defense." State v. Gibbons, 105 N.J. 67, 73 (1987) 

(citing N.J.S.A. 2C:2-12). Although "[t]he Court has interpreted N.J.S.A. 2C:2-

12 as requiring that a defendant claiming entrapment prove both subjective and 

objective entrapment," the entrapment defense could also "be established by 

objective evidence of especially egregious police misconduct, even if 

predisposition was shown." Id. at 73-74. See State v. Talbot, 71 N.J. 160, 167-

68 (1976) ("[A]s the part played by the State in the criminal activity increases, 

the importance of the factor of defendant's criminal intent decreases, until finally 

a point may be reached where the methods used by the State to obtain a 

conviction cannot be countenanced, even though a defendant's predisposition is 

shown.").

Additionally, if supported by "a compelling reason," State v. Megargel, 

143 N.J. 484, 501 (1996), our sentencing scheme allows the trial court to 

sentence a first-degree offender one degree lower. See N.J.S.A. 2C:44-1(f)(2) 

(permitting the court to sentence a first-degree offender "to a term appropriate 

to a crime of one degree lower" in situations "where the court is clearly 
19 A-1788-18

convinced that the mitigating factors substantially outweigh the aggravating 

factors and where the interest of justice demands"). That defendant was unable 

to avail himself of these statutory protections does not justify the application of 

the doctrine of fundamental fairness in the absence of unjust and arbitrary 

governmental action.

Nonetheless, defendant argues he was subjected to sentencing entrapment

or sentencing manipulation, relying on federal concepts developed in response 

to perceived abuses in the restrictive scheme of the federal sentencing 

guidelines. See United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) 

(explaining that to justify a downward departure under the federal sentencing 

guidelines, a defendant bears the "burden to show that sentencing entrapment or 

sentencing manipulation occurred" by virtue of officers engaging in "later drug 

transactions solely to enhance [defendant's] potential sentence"); see also United 

States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992) (recognizing police "must be 

given leeway to probe the depth and extent of a criminal enterprise, to determine 

whether coconspirators exist, and to trace the drug deeper into the distribution 

hierarchy"). Our courts have never recognized these federal concepts, and we 

reject defendant's invitation to do so here.
20 A-1788-18

In Point III of his counseled brief, defendant argues his "twenty-four-year 

term of imprisonment for a street-level drug dealer is unreasonable and cannot 

be sustained."9 Defendant asserts "[w]hile the finding of [aggravating factors 

three, six, and nine, and mitigating factor eleven10 is] supported by competent 

credible evidence in the record, the weighing of these factors . . . cannot justify 

the sentence imposed."

We review sentences "in accordance with a deferential standard," State v. 

Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute 

[our] judgment for those of our sentencing courts.'" State v. Cuff, 239 N.J. 321, 

347 (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will

affirm the sentence unless (1) the sentencing guidelines 

were violated; (2) the aggravating and mitigating 

factors found by the sentencing court were not based 

upon competent and credible evidence in the record; or 

(3) "the application of the guidelines to the facts of [the]

9

 Defendant does not dispute that he qualified for a mandatory extended term 

based on his prior drug convictions. See N.J.S.A. 2C:43-6(f). Defendant's 

sentence was reduced to the twenty-four-year term, with a ten-year parole 

disqualifier, after the judge reconsidered the original sentence and determined 

he had considered the wrong sentencing range in imposing that sentence.

10

 See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); N.J.S.A. 2C:44-1(a)(6)

("the extent of the defendant's prior criminal record and the seriousness" of the 

offenses); N.J.S.A. 2C:44-1(a)(9) (the need to deter "defendant and others from 

violating the law"); N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment "would 

entail excessive hardship to [himself] or [his] dependents").
21 A-1788-18

case makes the sentence clearly unreasonable so as to 

shock the judicial conscience."

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting 

State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Here, we see no reason to interfere with the judge's proper exercise of his 

sentencing discretion.

We need not tarry long on defendant's pro se arguments. Defendant 

challenges, as a violation of his confrontation rights under Crawford v. 

Washington, 541 U.S. 36 (2004), the admission of the drug-free school zone 

map commissioned and adopted by the City of Trenton and utilized by the State 

to establish an essential element of count four. In State v. Wilson, our Supreme 

Court held that such maps are "nontestimonial" and their "admission therefore 

did not violate defendant's confrontation rights." 227 N.J. 534, 538 (2017). The 

Court further held "that such maps are admissible, if properly authenticated . . . 

as public records pursuant to N.J.R.E. 803(c)(8)" and "under N.J.S.A. 

2C:35.7.1(e) or, by analogy, N.J.S.A. 2C:35-7(f). Wilson, 227 N.J. at 538.

Here, we discern no abuse of discretion in the judge's decision that the 

map was properly authenticated by Americo Lucchi, an employee of Lanning 

Engineering Company, the company that created the map for the City of 

Trenton. The judge found that while Lucchi was not "the designer" of the map, 
22 A-1788-18

he had "been with the company [for fifty-eight] years," was "familiar with the 

methodology that the company employ[ed] in [the] creation of such maps" and 

described the "margin of error within two or three percent." Further, Lucchi 

would be subject to cross-examination. Thus, the judge concluded Lucchi's 

testimony satisfied the requirements of N.J.R.E. 901, permitting authentication 

by "direct proof and circumstantial evidence."

"Proper authentication of the map required a witness who could testify to 

its authenticity and be cross-examined on the methodology of the map's creation 

and its margin of error." Wilson, 227 N.J. at 553. That was done here.

Defendant also argues the judge should have sua sponte given an 

identification charge to guide the jury in evaluating Muraglia's "in-court voice 

identifications" of defendant "as the person whose voice was being heard on 

[the] audio recordings." Muraglia testified he recognized defendant's voice on 

the audio recordings from observing the actual meetings. According to 

Muraglia, defendant and Thomas were the only participants in several of the 

meetings.

During the final charge, the judge gave a modified identification charge 

in connection with the in-court identification of defendant by the law 

enforcement witnesses and Thomas, as well as the out-of-court identification of 
23 A-1788-18

defendant by Thomas. Because there was no objection to the charge at trial, we 

review defendant's challenge for plain error and reverse only if the error was 

"clearly capable of producing an unjust result." State v. McKinney, 223 N.J. 

475, 494 (2015) (quoting R. 2:10-2). In State v. Williams, we held a jury 

instruction specifically on voice identification was unwarranted because "voice 

identification was not the key factor in the case" and "the State's other proofs 

were strong." 404 N.J. Super. 147, 166 (App. Div. 2008). We reach the same 

conclusion here.

Defendant further argues the judge abused his discretion in allowing 

Muraglia "to authenticate" the surveillance video and "to narrate the video 

before the jury." According to defendant, the error was compounded by 

permitting the prosecutor "to admit an altered version of the video slowed down 

and zoomed in . . . over the objection of trial counsel." We reject defendant's 

contentions as baseless. First, Muraglia had first-hand knowledge of what was 

depicted on the video from conducting contemporaneous surveillance of the 

meeting between defendant and Thomas. Further, Muraglia actually witnessed

the commission of the crime. See State v. Lazo, 209 N.J. 9, 24 (2012) 

(acknowledging the propriety of lay opinion identification testimony where the 

detective "witnessed the crime" and knew the defendant).
24 A-1788-18

"N.J.R.E. 701 requires only that testimony be rationally based on the 

witness's perception and that such testimony help the jury." Singh, 245 N.J. at

5. "Simply because the jury may have been able to evaluate" the video for itself 

did not render Muraglia's testimony "unhelpful" or mean that the detective's 

"testimony usurped the jury's role." Id. at 20.

Finally, defendant argues Muraglia should not have been permitted to 

testify about the lab results for the seized cocaine for each of the ten drug sales 

instead of the actual author of the lab reports. N.J.S.A. 2C:35-19 allows the 

admission of a certificate of analysis in a criminal prosecution as "evidence of 

the composition, quality, and quantity of the substance submitted to the 

laboratory for analysis" unless an objection is filed by the opposing party 

"within [ten] days" of "receiving the adversary's notice of intent to proffer the 

certificate." N.J.S.A. 2C:35-19(b) and (c). The sworn certificate 

shall contain a statement establishing . . . the type of 

analysis performed; the result achieved; any 

conclusions reached based upon that result; that the 

subscriber is the person who performed the analysis and 

made the conclusions; the subscriber's training or 

experience to perform the analysis; and the nature and 

condition of the equipment used. 

[N.J.S.A. 2C:35-19(b).]
25 A-1788-18

"A failure to comply with the time limitations regarding the notice of objection 

. . . shall constitute a waiver of any objections to the admission of the 

certificate." N.J.S.A. 2C:35-19(c).

Following a hearing, the judge admitted the certificate "without the 

testimony of the lab analyst who authored the certified lab reports," finding "the 

proffered laboratory certificates comport[ed] with [the] statutory criteria for 

admissibility under [N.J.S.A. 2C:35-19(b)]" and "defendant did not timely 

object to the admissibility of the . . . certificates as required by [N.J.S.A. 2C:35-

19(c)]." We affirm the judge's decision substantially for the detailed findings 

and cogent reasons expressed by the judge.

Affirmed.