SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5725-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER M. KOLLER,

Defendant-Appellant.

__________________________

Argued October 21, 2020 - Decided February 10, 2022

Before Judges Accurso, Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 17-07-

0791.

Raymond A. Grimes argued the cause for appellant.

Joie D. Piderit, Assistant Prosecutor, argued the cause 

for respondent (Yolanda Ciccone, Middlesex County 

Prosecutor, attorney; Joie D. Piderit, of counsel and on 

the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

NOT FOR PUBLICATION WITHOUT THE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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ACCURSO, J.A.D.

A jury convicted defendant Christopher M. Koller of first-degree 

murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree hindering his own 

apprehension, N.J.S.A. 2C:29-3(b)(1); and third-degree distribution of cocaine, 

N.J.S.A. 2C:35-5(a)(1) and 5(b)(3), and the judge sentenced him on the murder 

conviction to sixty years in State prison subject to the periods of parole 

ineligibility and supervision required by the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2, as well as to consecutive terms of eighteen months and 

five years for hindering and distribution respectively. Those terms were 

consecutive to a sentence defendant was then serving for violation of parole. 

Defendant raises the following arguments on appeal: 

POINT I

THE PROSECUTOR'S IMPROPER COMMENTS 

CONSTITUTE PROSECUTORIAL MISCONDUCT 

AND PLAIN ERROR REQUIRING REVERSAL. 

(Not Raised Below)

POINT II

THE JURY CHARGE WAS INCORRECTLY GIVEN 

AS A JURY INSTRUCTION ON PASSION/

PROVOCATION MANSLAUGHTER SHOULD 

HAVE BEEN GIVEN. (Not Raised Below)
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POINT III

THE DEFENDANT'S FIFTH AMENDMENT RIGHT 

TO REMAIN SILENT AND HIS RIGHT TO AN 

ATTORNEY UNDER MIRANDA WAS VIOLATED 

WHEN THE POLICE IGNORED DEFENDANT'S 

REQUEST FOR AN ATTORNEY. (Not Raised 

Below)

POINT IV

THE TRIAL COURT ERRED IN NOT PERMITTING 

DEFENSE'S CHARACTER WITNESS TO ALSO 

TESTIFY CONCERNING FACTS OF WHICH SHE 

WAS AWARE. (Not Raised Below)

POINT V

DEFENDANT WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL IN VIOLATION OF 

HIS CONSTITUTIONAL RIGHTS. (Not Raised 

Below)

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY 

EXCESSIVE. (Not Raised Below)

POINT VII

THE CUMULATIVE EFFECT AND IMPACT OF 

ALL THE ERRORS DENIED THE DEFENDANT A 

FAIR TRIAL. (Not Raised Below)

POINT VIII

THE CONVICTION FOR THE DISTRIBUTION OF 

COCAINE SHOULD BE VACATED AS THE 
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VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. (Not Raised Below)

In his pro se supplemental brief, defendant argues:

POINT I

THE TRIAL COURT'S FAILURE TO CHARGE THE 

JURY ON PASSION PROVOCATION 

MANSLAUGHTER CONSTITUTES PLAIN ERROR 

WHICH DEPRIVED [DEFENDANT] OF HIS RIGHT 

TO A FAIR TRIAL AND DUE PROCESS OF LAW. 

(Not Raised Below)

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION 

AND DEPRIVED [DEFENDANT] OF HIS RIGHT 

TO A FAIR TRIAL BY FAILING TO VOIR DIRE 

THE JURY OR DECLARE A MISTRIAL WHEN 

THE VICTIM'S FAMILY MEMBERS AND 

FRIENDS WORE PINK CLOTHING DEPICTING 

EXPRESSIONS THROUGHOUT THE TRIAL 

PROCEEDINGS. (Raised Below)

POINT III

THE PROSECUTOR'S COMMENTS DURING 

SUMMATION AND CROSS-EXAMINATION 

CONSTITUTES PLAIN ERROR. (Not Raised 

Below)

A. The prosecutor's improper comments 

suggesting that [defendant] was motivated to kill 

Bezek because she refused his sexual desires deprived 

him a fair trial.
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B. The prosecutor's calculated statements 

regarding [defendant's] prior conviction and current 

imprisonment deprived him a fair trial.

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS 

DENIED [DEFENDANT] A FAIR TRIAL. (Not 

Raised Below)

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

standards, we affirm defendant's convictions but remand for resentencing in 

accordance with State v. Torres, 246 N.J. 246 (2021). 

We analyze the issues defendant raises on appeal in the context of the 

facts the jury heard and the arguments the State and defendant presented at 

trial. We summarize them here. 

Shortly after midnight on November 1, 2019, the victim, Beth Bezek, a 

five-foot-two, thirty-one-year-old woman weighing one hundred and seventeen 

pounds, fell to her death from the bedroom window of defendant's third-floor 

apartment in Piscataway. Defendant claimed he and Bezek had known one 

another for about two months and had a casual, intimate relationship, centered 

on their regular use of cocaine. Defendant had formerly been selling real 

estate, but his license had been suspended for several years following a theft 

by deception conviction. He was, at the time of these events, working for his 
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brother-in-law and supplementing his income by selling cocaine. Bezek had 

recently quit her job tending bar at the Moose Lodge in Raritan. According to 

defendant, he would occasionally supply her cocaine for sale to bar patrons.

On the day she died, Bezek and defendant texted from early morning, 

throughout the day and into the evening. Bezek started the exchange at 

5:31 a.m. In addition to saying she wanted "to hang," she also said she wanted 

to pick up her Ipad to photograph her niece and nephew at a midday 

Halloween parade. Defendant texted an hour later suggesting she stop over to 

get it after work. At midday, Bezek texted "Hey, mister, you around for an 

80? Have exact cash." Defendant again texted he was working and suggested 

she come by later. At 8:47 p.m. defendant sent Bezek a text stating: "I had a 

tough day. Do you want to hang and party a little? I need a friend. No trades 

necessary. I just want some company and laughs." Bezek, who was then 

having dinner with her boyfriend at his apartment, responded that she would be 

there "like ten or eleven," and again mentioned retrieving her iPad. Bezek's 

boyfriend testified she left his apartment about 10:30 p.m. While he suspected 

she was using cocaine again because she had been "sniffling heavy, like she 

had allergies or something," he claimed "[s]he seemed normal," and not at all 

impaired. 
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Defendant and Bezek continued to text and exchange emojis until 

10:59 p.m. when Bezek texted "Still want me by?" and defendant responded 

with an enthusiastic "yes." Bezek asked if defendant had "80" "for a friend"

with defendant responding "Yeah, sure." Twenty minutes later, Bezek texted 

that her "friend," an "old drunk from [her] bar," was with her, and asked 

whether defendant wanted him "to wait down the road?" Defendant 

responded, "Don't bring anyone here." Bezek dropped her passenger at a 

nearby bar to await her return with his cocaine. Bezek and defendant 

continued to text, with Bezek texting she was "Here" at 12:02 a.m. At

12:15 a.m. she texted that she was in the lobby. In the last text exchanged 

between the two, defendant immediately responded that he was "Coming 

now."

According to defendant, he could tell in the elevator up to his apartment 

that Bezek was "extremely high" on cocaine; her eyes were darting everywhere 

and her nose was "leaking." When they entered his apartment, she declined his 

offer of an iced tea and went into the bathroom. When she emerged, she had 

eighty dollars in her hand and asked where the cocaine was. Defendant 

testified he told her he didn't have any, because she "stole it all" several days 

previous, and he would have to go get some. Bezek said she needed a cigarette 
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and the two went into the living room and sat on the couch. Bezek denied she 

stole defendant's cocaine and wanted to know where her iPad was. According 

to defendant, when he told her it was downstairs in his work truck, Bezek got 

very angry and attacked him, screaming and hitting him repeatedly. He 

claimed she was acting "crazy," and that he'd never seen her like that.

Defendant, who is six foot, three inches tall and weighs two hundred and 

thirty pounds, testified he grabbed both of Bezek's arms and tried to pull her 

back down to the couch. He claimed she kept screaming "Help, help, stop" as 

she was hitting him. Concerned that she would wake his neighbors, he told her 

to "Shut up," and then used his hand to cover her mouth to stop her screaming. 

When he realized his hand was covered with blood from her nose, he wiped his 

hand on his shirt "just as an instinct." When Bezek bit him on the arm, the two 

went to the floor. Defendant "grossed out" out by the blood and mucous 

coming from Bezek's nose, grabbed a throw pillow to put over her mouth to 

quiet her. After he told her she was not going to overpower him and he had no 

intention of beating her up, she calmed down and the two stood up.

He told her to go into the bathroom to clean herself up, but she walked 

into the bedroom, sat on his bed and pulled out her phone, screaming "We got 

to get Mike." Defendant testified as he turned to go into the bathroom to wash 
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up, Bezek jumped on his back, attacking him again and hit him over the head 

with a lamp. He claimed they again went to the floor and he "had to sit on top 

of her again" like he had in the living room. Defendant testified he tried to 

grab her hands while she was "swinging wildly and kicking." She finally

stopped when he grabbed her neck and squeezed for two or three seconds. He 

denied putting Bezek in a chokehold. 

Defendant claimed that once she calmed down, he helped her to sit on 

the bed and said "Look, you're out of your freakin' mind right now. I'm gonna 

get you some water. Just chill the fuck out." Defendant testified that as he 

walked to the kitchen, Bezek said, "It's hot in here," and he responded, "Cause 

you're actin' like a frickin' maniac." According to defendant, Bezek then rolled 

across the bed and opened the window. Out of the corner of his eye, he saw 

Bezek open both the window and the screen. He turned and asked "What —

what is — what are you doing? And she — she's dipping her head out and 

she's climbing out to — I was like, We're on the third floor. Where you going? 

And then she — she was airborne. She just jumped."

Defendant looked out the window and saw her laying in the parking lot. 

He ran downstairs and stood over her, but she wasn't moving. According to 

defendant, he ran upstairs to get his phone to call 911, but then panicked. 
10 A-5725-17

Defendant took Bezek's cell phone and keys, got into his car and started to 

drive. He tried to call a friend several times and then drove to New 

Brunswick, looking for a pay phone to call 911. He told the operator where 

Bezek was, but did not give his name. He tossed her belongings and returned 

to his apartment complex to find several police cars. Defendant, testifying he 

was trying to "blend in," let an officer into the lobby and asked what was going 

on. The officer replied that a woman had been seriously hurt. Defendant 

continued to his apartment, not revealing his involvement. 

When that officer and another knocked on his door a few minutes later, 

having noticed a broken screen three flights above Bezek's body, defendant 

initially told them he had been in Manville at a friend's place for the evening, 

the friend he called on his way to New Brunswick. When they noticed the 

blood on his shirt, defendant told them "the girl" had been in his apartment, 

that she'd been "coked up" and irrational, that they'd had a fight, and she 

jumped out the window. He was arrested and taken to the police station. 

Although he was not interrogated because his lawyer advised him not to speak, 

defendant made several voluntary statements, including that Bezek had bitten 

him, that she was "freaking out," that he hoped she was alright, and that they 

should test her for drugs because she was very high.
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The only signs of a struggle police found in defendant's apartment were

in his bedroom, where they also found a condom on the bedside table. There 

was a scale and white residue on the kitchen counter, and defendant had eighty 

dollars in his pocket at the time of his arrest. In Bezek's car, police found her 

purse, containing her wallet and a small bag containing over two grams of 

cocaine. Her keys, cellphone and iPad were never recovered. 

Defendant's upstairs neighbor testified he was awakened shortly after 

midnight by an argument between a man and a woman in the apartment below 

his that lasted for fifteen or twenty minutes. He said the woman sounded in 

distress and he heard her say "stop" four times. By the time he got up to call 

police, the screaming stopped, and he went back to bed without reporting it. 

Bezek's "friend" testified he had given her eighty dollars for a drug 

purchase, and that he went with her to pick up the drugs because she had 

"burned" him before. He claimed she had no problem driving and seemed fine 

when she dropped him off to wait at the bar, but that she never came back for 

him. He called her ten times, reaching her once. Bezek sounded as if she was 

speaking to someone else and mumbled something like, "you have to go back 

and pick up Mikey" before the phone went dead. Worried that Bezek was in 

trouble, he called her boyfriend, and eventually took a cab home. Bezek sent a 
12 A-5725-17

virtually blank text to her boyfriend at 12:30 a.m. Her last outgoing call was 

at 12:34 to the man she left at the bar.

Buttressed by the testimony of the medical examiner of injuries Bezek 

suffered prior to her fall, including deep compression injuries to her neck, 

petechial hemorrhages to her left eye and bruising on the bridge of her nose 

and inside her lip, the State's theory at trial was that defendant choked the 

victim into unconsciousness and threw her out of his bedroom window when 

she refused to have sex with him. The prosecutor began her opening by 

reading from a "letter to the universe" defendant had written in the weeks 

before Bezek's death asking for "a tall blonde girl with an amazing body" he 

could marry and have children with, as well as a trip to San Jose, "$50,000 

within 60 days," and, in a post script, "Before the wife, send me a couple of 

little flings." The prosecutor claimed defendant tried to make Bezek "one of 

those little flings," and when she wouldn't cooperate, he killed her by throwing 

her out the window. 

Defendant contended the State's theory was nonsense, arguing the 

condition of Bezek's clothes didn't support the State's claim of attempted rape , 

and that he had no reason to either force himself on Bezek or to kill her. He 

pointed to the many text messages he and Bezek had exchanged as proof of 
13 A-5725-17

their easy, intimate relationship and called a former girlfriend, who testified he 

was a kind and caring man and had never been aggressive or violent with her. 

Defendant claimed the detectives never tried to investigate the facts or 

figure out what happened after defendant initially lied to them about where 

he'd been that night. Buttressed by the testimony of his own expert, a doctor

who testified regularly on behalf of the prosecutor's office, who claimed 

Bezek was "acutely intoxicated" with some of the highest levels of cocaine 

he'd ever seen short of those in individuals dying of overdose, defendant's 

counsel argued police simply didn't believe defendant when he told them how 

high she was, and that she had just gone crazy and jumped out the window. 

Defendant's expert, however, testified a person at Bezek's level of 

intoxication would potentially believe she could perform extraordinary 

physical feats, as more commonly evidenced by "people on the street" who 

"become aggressive and believe they can take on, you know, two or three 

police officers" when that is obviously not the case. Based on the State's 

toxicology report, defendant's expert thought it likely Bezek would have 

ingested the cocaine within an hour or two of her death, and he testified an 

elevated temperature and sweating, as well as a racing heartbeat and "a feeling 
14 A-5725-17

of terror" would be common symptoms associated with the amount of cocaine 

in her system.

Defense counsel theorized that Bezek had snorted cocaine in her car 

after she left her "friend" at the bar — likely in the parking lot of defendant's 

apartment during the thirteen minutes between the time she texted defendant 

that she had arrived and when she texted him that she was in the lobby. 

Counsel argued to the jury that defendant told police in "a voluntary 

statement" at the time of his arrest that they had better test Bezek for cocaine

and that she was "all freaked out, but they didn't believe him" because "[t]he 

story seemed too fantastic." Thus, counsel claimed, detectives never even 

bothered to dust the window and the screen for Bezek's fingerprints; "but lo 

and behold, ten days later, when the toxicology test comes back, she's high on 

coke, and not just high, she's whacked out, super high on cocaine" and there's 

no DNA on the window screen. Counsel argued that "[h]ad the police simply 

listened," they would have come to the only conclusion supported by "the 

physical and forensic evidence" that "Bezek freaked out and jumped out the 

window."

Before we address defendant's arguments on appeal, we note that with 

the exception of his complaint about the clothing worn by the victim's friends 
15 A-5725-17

and family at trial, none of these arguments were raised to the trial court. We 

review arguments raised for the first time on appeal under a plain error 

standard, meaning we disregard such errors unless "clearly capable of 

producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 

(2004); State v. Macon, 57 N.J. 325, 337 (1971). One of the reasons we deal 

with claims of error that could have been, but were not, raised at trial 

differently from those timely challenged is because "[i]t may be fair to infer 

from the failure to object below that in the context of the trial the error was 

actually of no moment." Macon, 57 N.J. at 333. Accordingly, we will reverse 

a defendant's conviction only if convinced the error is "sufficient to raise a 

reasonable doubt as to whether" it "led the jury to a result it otherwise might 

not have reached." Id. at 336. 

Defendant's first argument is that the prosecutor's summation was 

inflammatory and "impermissibly commented" on his pre- and post-arrest 

silence. He specifically objects to the prosecutor telling the jury that this was 

the first time the State had heard the story defendant told at trial, and that his 

testimony was "longer than the incidents leading to [Bezek] jumping out of the 

window." Defendant claims those comments, that guilty people "conceal items 

and twist things to fit their version of the facts," and that he had "the most to 
16 A-5725-17

lose so he was obviously lying," "strongly suggest[ed]" he had an affirmative 

obligation to establish his innocence rather than the right to remain silent.

Defendant adds two challenges to the prosecutor's summation in his pro 

se brief. He claims the State's comments suggesting he killed Bezek because 

she refused his sexual advances exceeded the scope of the evidence, and its 

"calculated statements" about his criminal record were improper because the 

jury should not have been told he "was serving time in State Prison as a result 

of lying." 

"[T]he primary duty of a prosecutor is not to obtain convictions but to 

see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012). 

Prosecutors, of course, are "expected to make vigorous and forceful closing 

arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and they are "not 

required to present those arguments as if [they] were addressing a lecture hall, "

Smith, 212 N.J. at 403. Nevertheless, they must confine their remarks to 

comment on the evidence and the reasonable inferences that can be drawn 

from it and must not make "inaccurate factual assertions to the jury," or 

otherwise employ underhanded means to secure a conviction. State v. Garcia, 

245 N.J. 412, 435 (2021). A reviewing court, limited as it is to the cold 

record, "may infer from counsel's failure to object to the remarks at the time 
17 A-5725-17

they were made that [counsel] did not in the atmosphere of the trial think them 

out of bounds." State v. Johnson, 31 N.J. 489, 511 (1960). We review any

claimed excess in the context of the whole trial and will reverse "only if 'the 

conduct was so egregious as to deprive defendant of a fair trial.'" State v. 

McNeil-Thomas, 238 N.J. 256, 275 (2019) (quoting State v. Wakefield, 190 

N.J. 397, 437 (2007)).

Employing those standards here, we detect no reversible error. First, it's 

important to remember that defendant, and not the State, introduced the 

"voluntary statements" he made at the time of his arrest. Indeed, the entire 

theory of his defense was built on those statements — that the police rejected 

his claim that Bezek jumped to her death because the story was too 

implausible, and thus they failed to properly investigate her death, omitting 

basic steps, such as dusting the window and screen for fingerprints, that could 

have exonerated him. As our Supreme Court has explained, "[i]f a defendant 

elects to speak to the police and offers an account of what happened, then he 

has not remained silent—he has spoken." State v. Kucinski, 227 N.J. 603, 624 

(2017). 

Under those circumstances, a prosecutor's comment about what a 

defendant left out of his statement as compared to his trial testimony is not a 
18 A-5725-17

comment on the defendant's silence, but on his prior inconsistent statement. 

Id. at 623-24 (noting "[a] defendant cannot have it both ways. If he talks, what 

he says or omits is to be judged on its merits or[ ] demerits, and not on some 

artificial standard that only the part that helps him can be later referred to"

(quoting United States v. Fambro, 526 F.3d 836, 842 (5th Cir. 2008))). "[I]t is 

not an infringement of a defendant's right to remain silent for the State to point 

out differences in the defendant's testimony at trial and his or her statements 

that were freely given." State v. Tucker, 190 N.J. 183, 189 (2007). 

Accordingly, we cannot find the prosecutor impermissibly commented on 

defendant's pre- and post-arrest silence by noting he had never previously 

provided the State with the information he provided the jury or comparing his 

previously unchallenged statements at the time of his arrest with the lengthy 

account of his actions he offered at trial.

As for the prosecutor shifting the burden of proof to defendant, we 

consider the prosecutor's comments in the context of defense counsel's 

summation. See Smith, 212 N.J. at 404 (explaining that in reviewing the trial 

record to determine whether a prosecutor's comments in summation exceeded 

what was permissible, "an appellate court will consider whether the offending 

remarks were prompted by comments in the summation of defense counsel"). 
19 A-5725-17

Defendant's counsel argued to the jury that defendant's act of closing the 

window, driving to a pay phone and getting rid of Bezek's cellphone after she 

jumped out of the window was "the first normal human reaction anyone would 

have" if they had a theft by deception conviction, was "flunking out of 

probation, . . . doing coke . . . selling coke," she's "doing coke," he's "fronting 

her the coke," and she's "selling it. This is not what he's supposed to be doing 

on probation." Counsel acknowledged that when defendant returned to his 

apartment, "yes, it's true, as he walked to the front door during those two 

seconds he didn't tell the police, oh, by the way, I'm the guy who called 

before," but counsel insisted defendant "knows the police are going to come" 

and when they do, he tells them "within 30 seconds" that Bezek was there, 

they'd had an argument, that she attacked him and jumped out the window.

The prosecutor's comments to which defendant now objects and 

contends shifted the burden to him, that "[g]uilty people conceal items and 

twist things to fit their version of the facts," that "the first time the vast 

majority of any of this story from [defendant] comes out is here in court," and 

that "it's hard to keep your story straight when your story is made up," were in 

direct response to his counsel's summation. We quote the prosecutor's remarks 

in context. 
20 A-5725-17

Addressing defendant's "voluntary statements" made while investigators 

were collecting evidence and taking DNA samples, the prosecutor explained 

that officers were not allowed to ask any follow up questions and therefore

the first time the vast majority of any of this story 

from Mr. Koller comes out is here in court. The first 

time anyone has had a chance to challenge him on any 

of his story is here before you folks. 

Addressing defendant's explanation of why he panicked and fled, the 

prosecutor said:

Innocent people try to help their friends in a time of 

need. Right? Innocent people, when someone who 

they care about . . . just went out the window, would 

try and help that person. People with nothing to hide 

tell the truth. If you've got nothing to hide, just tell 

the truth. But what do guilty people do? They run. 

They run from the scene, and they hide evidence. 

Guilty people panic, and they don't call 9-1-1, they 

call their drug dealing friend . . . eight times to try to 

get an alibi. . . . Guilty people conceal items and twist 

things to fit their version of the facts. Conceal things 

to fit their version of the facts. Conceal things like a 

phone, like an iPad, like car keys, like cocaine. 

But it's hard to keep your story straight when your 

story is made up, when you're trying to cover up for 

your actions and you need to twist the facts to fit, 

because then your explanation of things may not make 

sense. When your story is not supported by the 

evidence and your story is a lie, then you run the risk 

that it just doesn't fit, that it just doesn't make any 

sense.
21 A-5725-17

Again addressing defendant's explanation for why he left his apartment, the 

prosecutor argued:

Why did he leave the apartment immediately after 

[Bezek] went out the window? Oh. Because he's on 

probation and he's a drug dealer and he panicked and 

he ran? Well, if he didn't do anything wrong, flush the 

coke and call 9-1-1. Why did he clear [Bezek's]

belongings out of the house? Because in the instant he 

wanted to try and get any sign of her possible out of 

his residence to try and get out from under it. Why 

did he not call 9-1-1 from any of his four cell phones 

that he had? 

And addressing defendant's actions when he returned to his apartment after 

anonymously calling 911, the prosecutor argued:

Why didn't he say anything to Officer Paiano when he 

let him in the building? Officer Paiano is there. Do 

you remember? He's trying to get in the building. 

Their pass code doesn't work, and some guy comes 

walking up with a hoodie, and does he say, Officer, 

thank God you're here, you're not going to believe it, 

this girl jumped out my window. Thank God, you've 

got to help me. I don't know what else to do. No. He 

skulks by into his apartment and doesn't say a word. 

Does that sound like the actions of a person who is not 

responsible for this girl's death?

Although the prosecutor's closing was undeniably forceful and some of 

his remarks may have bordered on the objectionable, no objection was made, 

leading us to conclude, as defense counsel likely did, that the comments were 

not "out of bounds." See Johnson, 31 N.J. at 511. We also find no error in the 
22 A-5725-17

prosecutor's reference to defendant's prior conviction, which was properly 

admitted after he elected to testify, see N.J.R.E. 609(a)(1); State v. Sinclair, 57 

N.J. 56, 64-65 (1970), or in his arguing defendant killed Bezek when she 

refused his advances, given the evidence of a struggle was confined to 

defendant's bedroom and the condom police found on the bedside table. And, 

of course, a prosecutor is certainly free to comment on a defendant's 

credibility. See State v. Darrian, 255 N.J. Super. 435, 458 (App. Div. 1992). 

Having reviewed the entire record, we are satisfied the prosecutor's remarks 

did not stray beyond fair commentary on the evidence and the reasonable 

inferences that could be drawn from that evidence. See State v. Smith, 167 

N.J. 158, 178 (2001).

Further, our conclusion that the prosecutor's remarks did not improperly

shift the burden of proof to defendant is fortified by the court's clear and direct 

instruction to the jury following summations that "[t]he burden of proving each 

element of the charge beyond a reasonable doubt rests upon the State and that 

burden never shifts to the defendant." Those instructions were "sufficient to 

remove any implication 'that the defense had some burden of proof.'" State v. 

Patterson, 435 N.J. Super. 498, 513 (quoting State v. Jenkins, 349 N.J. Super. 

464, 479 (App. Div. 2002)). In no event could we find that anything in the 
23 A-5725-17

prosecutor's closing remarks was so egregious as to deprive defendant of a fair 

trial. See McNeil-Thomas, 238 N.J. at 275.

Defendant's remaining arguments require only brief comment. We agree 

with defendant that there was certainly a basis in the evidence for a 

passion/provocation charge. See State v. Funderburg, 225 N.J. 66, 80-82 

(2016). And the judge made clear during the charge conference he would have 

given it, but for defense counsel's insistence it was "not [his] theory, it's not 

the State's theory," and that there was "no theory upon which there would be 

sufficient passion provocation." 

Defense counsel took pains to make the record clear that he "vehemently 

object[ed] to any reference to passion provocation in the charge," stating he 

had "made [his] argument" and could not state "in any more strenuous terms" 

that he "absolutely [did] — adamantly [did] not want that charge in there." 

After the judge laid out the evidence to support the passion/provocation 

charge, defense counsel responded that he understood the court's logic in 

suggesting the charge, noting "I've made it as clear as I possibly can . . . I do 

not want the charge." The judge was not required to give the charge over 

counsel's adamant objection that it was incompatible with his defense, see

State v. Daniels, 224 N.J. 168, 184 (2016), and to the extent there was error in 
24 A-5725-17

failing to give the charge, it was plainly invited, thus precluding any relief 

here, see Jenkins, 178 N.J. at 358 (noting "a 'defendant cannot beseech and 

request the trial court to take a certain course of action, and upon adoption by 

the court, take his chance on the outcome of the trial, and if unfavorable, then 

condemn the very procedure he sought and urged, claiming it to be error and 

prejudicial'" (quoting State v. Pontery, 19 N.J. 457, 471 (1955))).

Defendant's claim that police violated his Fifth Amendment rights by 

denying his request for counsel is without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). First, defendant stipulated at 

trial that all of his statements were given voluntarily. Second, the statements 

defendant complains about, the ones he made about the victim being high on 

cocaine and jumping from the window while police were collecting evidence 

and DNA samples, were introduced by his counsel on cross-examination of the 

State's witnesses, over the State's objection. Finally, we found no evidence to 

support his assertion that his attorney was at the police station "for hours" 

before being allowed to see defendant, and the references in counsel's brief 

alleging it are without citation to the record. 

We reject defendant's claim the court erred in not permitting his exgirlfriend to testify about his "letter to the universe" with which the State 
25 A-5725-17

opened its case. He contends she would have testified as to "why it was 

written and that it was written to her." The judge disallowed that testimony 

because defendant had listed his ex-girlfriend as a character witness and never 

advised the State she would be offering substantive evidence. See State v. 

Tier, 228 N.J. 555, 565 (2017) (approving a trial court order requiring a 

defendant to identify a witness as a fact or character witness under Rule 3:13-

3(b)(2)(c)). As the witness was permitted to testify to defendant's character as 

a gentleman and a non-violent person, see N.J.R.E. 404(a)(1), and she would 

not have been able to offer any probative evidence as to what defendant 

intended by the words he wrote, as that information was known only to him, 

we find no abuse of discretion, see State v. Scharf, 225 N.J. 547, 572 (2016),

and no prejudice, State v. Burton, 309 N.J. Super. 280, 289 (App. Div. 1998).

We decline to consider defendant's several claims of ineffective 

assistance of trial counsel on this appeal, as they are "predicated on 

'allegations and evidence that lie outside the trial record,'" State v. Petrozelli, 

351 N.J. Super 14, 22 (App. Div. 2002) (quoting State v. Russo, 333 N.J. 

Super. 119, 138 (App. Div. 2000)), and are thus better suited for postconviction relief, see State v. Preciose, 129 N.J. 451, 460-62 (1992). 
26 A-5725-17

Defendant's claim that his conviction for distribution of cocaine should 

be vacated because the verdict was against the weight of the evidence "is not 

cognizable on appeal since no motion for a new trial on that ground was made 

in the trial court." State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973)

(citing R. 2:10-1). Even were the claim cognizable, we would reject it as the 

text messages made clear Bezek went to defendant's apartment to purchase 

cocaine, defendant was found in possession of the eighty dollar purchase price, 

police recovered a scale in his kitchen, and defendant testified he

supplemented his income by selling drugs, and that he had given and sold 

drugs to Bezek before. As the court found in denying his motion to dismiss

the charge, there was sufficient evidence in the record to support a finding he 

was guilty of distribution. See State v. Jester, 68 N.J. 87, 90-91 (1975) (noting 

distribution of narcotics can be proved by circumstantial evidence).

We reject defendant's claim he was denied a fair trial based on the 

judge's failure to voir dire the jury or declare a mistrial based on several 

spectators wearing pink clothing or ribbons as expressions of sympathy for the 

victim. As the State notes, N.J.S.A. 52:4B-36.1(b) permits a victim's family or 

other spectators to wear a button, no larger than four inches in diameter, with 

the victim's picture during any judicial proceeding, so long as the judge is 
27 A-5725-17

satisfied it will not deprive defendant of his right to a fair trial. Although no 

request was made by defense counsel to voir dire the jury, he raised the issue 

to the judge, who addressed the matter on the record, making clear findings

that the display was not so obtrusive so as to influence the jury. Defendant has 

provided us nothing that would permit us to conclude the judge abused his 

discretion in that regard. See State v. R.D., 169 N.J. 551, 559-60 (2001)

(noting trial courts have traditionally been accorded deference with regard to 

matters pertaining to the jury in respect of that court's unique perspective).

Having reviewed the entire record, we are satisfied defendant's trial was 

free of any appreciable error, whether considered singly or in combination. 

Accordingly, we reject his claim that cumulative error entitles him to a new 

trial on all charges. See Wakefield, 190 N.J. 538.

We turn now to defendant's sentence. Although defendant has styled his 

objection to his sentence as simply "manifestly excessive," a review of his 

argument makes clear he is contending the judge's failure to "provide reasons 

for imposing three consecutive sentences" is violative of Yarbough,

1

and thus 

requires a remand for a new sentencing hearing. We agree.

1

 State v. Yarbough, 100 N.J. 627 (1985).
28 A-5725-17

Although it is axiomatic that our review of a trial judge's sentencing 

determination is deferential, State v. Fuentes, 217 N.J. 57, 70 (2014), and 

"review of the length of a sentence" limited, State v. Miller, 205 N.J. 109, 127 

(2011), we nevertheless are charged with ensuring the trial court's findings and 

balancing of the aggravating and mitigating factors are supported by adequate 

evidence in the record, and that the sentence imposed is neither inconsistent 

with the sentencing provisions of the Code of Criminal Justice nor shocking to 

the judicial conscience. See Fuentes, 217 N.J. at 70-71. Only "[i]f a 

sentencing court observes the procedural protections imposed as part of the 

sentencing process" will its exercise of sentencing discretion to impose 

consecutive sentences be sustained. State v. Cassady, 198 N.J. 165, 183-84

(2009). Accordingly, any assurance that a sentencing court's decision to 

impose consecutive sentences will not be disturbed on appeal is conditioned on 

the judge's proper evaluation of the Yarbough factors in light of the record. Id.

at 182.

The court's comments in imposing sentence here were brief. The judge 

found defendant was forty-one years old and had two prior convictions, a 

simple assault from 1995, for which he was sentenced to one year's probation,

and the theft by deception for which he was then serving a three-year State 
29 A-5725-17

prison sentence following two violations of probation. The judge found two 

aggravating factors — N.J.S.A. 2C:44-1(a)(3) (risk of committing another 

offense), and (9) (need to deter) — but declined to find aggravating factor six, 

N.J.S.A. 2C:44-1(a)(6) (prior criminal record). The judge found no mitigating 

factors. 

The court concluded the aggravating factors outweighed the non-existing 

mitigating factors but provided no reasons for his decision to impose 

consecutive sentences on these three offenses, a sixty-year NERA term for 

murder, followed by an eighteen-month term for hindering and a five-year 

term for distribution, or to run those sentences consecutive to the one 

defendant was then serving. The judge also failed to engage in any analysis of 

the real-time consequences of defendant's sentence. See State v. Hernandez, 

208 N.J. 24, 50 (2011) (noting "sentencing and appellate courts must 'be 

mindful of the real-time consequences of NERA and the role that it 

customarily plays in the fashioning of an appropriate sentence'" (quoting State 

v. Marinez, 370 N.J. Super. 49, 58 (App. Div. 2004))). Those omissions 

require we vacate defendant's sentence and remand for resentencing. 

After the court imposed sentence in this matter, our Supreme Court 

revisited Yarbough, reiterating that a "sentencing court's explanation of its 
30 A-5725-17

evaluation of the fairness of the overall sentence is 'a necessary feature in any 

Yarbough analysis.'" Torres, 246 N.J. at 270 (quoting State v. Cuff, 239 N.J. 

321, 352 (2019)). In addition to engaging in a qualitative analysis of the 

Yarbough factors, Torres instructs trial judges to provide "[a]n explicit 

statement, explaining the overall fairness of a sentence imposed on a defendant 

for multiple offenses in a single proceeding or in multiple sentencing 

proceedings." Id. at 268. The Court held "an explanation for the overall 

fairness of a sentence by the sentencing court is required in this setting, as in 

other discretionary sentencing settings, to 'foster[] consistency in . . . 

sentencing in that arbitrary or irrational sentencing can be curtailed and, if 

necessary, corrected through appellate review.'" Id. at 272 (quoting State v. 

Pierce, 188 N.J. 155, 166-67, (2006)). Accordingly, the remand shall be 

conducted in accordance with Torres as well as with State v. Randolph, 210 

N.J. 330, 351-52 (2012) (noting remand for reconsideration and justification of 

sentence requires new analysis of aggravating and mitigating factors).

We affirm defendant's convictions but vacate his sentence and remand 

for resentencing. We do not retain jurisdiction. 

Affirmed in part; vacated in part and remanded.