SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0981- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. HAROLD K. COLBERT, a/k/a ABDUL COLBERT, and KAREEM JONES, Defendant-Appellant.

_______________________

Argued October 3, 2023

– Decided January 9, 2024 Before Judges Sumners, Rose and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 19

- 03 -0 612. Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the briefs ). Emily M. M. Pirro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cau se for respondent (Theodore N. Stephens, II, Acting Es sex

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0981

- 21 County Prosecutor, attorney; Emily M. M. Pirro, of counsel and on the brief).
PER CURIAM In the early morning hours of November 1, 2018, Daq uan Cuttino was shot to death outside a Newark residence. The Stat e's prosecution of defendant Harold Colbert for the murder was based primarily o n testimony of the victim's girlfriend, the only known eyewitness , identifying defendant as the shooter. A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful possession of a handgun, N.J .S.A. 2C:39-5(b)(1); and second-degree possession of a handgun for an unlawf ul purpose, N.J.S.A. 2C:39-4(a)(1)

. Defendant was sentenced to an aggregate prison ter m of fortyfive years, subject to the No Early Release Act, N. J.S.A. 2C:43-7.2. Before us, defendant argues:

POINT I ERRORS WITH THE IDENTIFICATION PROCEDURE, TESTIMONY, AND JURY CHARGE REQUIRE REVERSAL OF DEFENDANT’S CONVICTIONS. (Partially Raised Below ). A. Because The State Failed To Make An Appropriate Record Of The Identifications And A Hearing On The Issue Was Inappropriately Denied, Defendant Was Deprived Of A Fair Trial.3 A- 0981

- 21 B. Because The State Failed To Ask The Eyewitness Her Confidence At The Time Of The Identifications, She Should Not Have Been Allowed To Testify To Her Confidence Retrospectively At Trial. C. The Failure To Provide The Jury With The Requested, Tailored Identification Charge Requires Reversal of Defendant's Convictions.
POINT II THE ASSERTION THAT THE NEW JERSEY STATE POLICE HAD FAILED TO FIND A PERMIT FOR DEFENDANT TO POSSESS A WEAPON WAS INADMISSIBLE HEARSAY. ITS ERRONEOUS ADMISSION REQUIRES REVERSAL OF ALL CHARGES. (Not Raised Below).
POINT III THE PROSECUTOR ENGAGED IN REVERSIBLE MISCONDUCT WHEN HE TOLD THEY JURY IT HAD A DUTY TO CONVICT AND INVOKED THE NUREMBERG TRIALS. (Not Raised Below).
POINT IV THE FAILURE TO PLAY THE MAIN WITNESS' S CROSS-EXAMINATION ALONG WITH THE DIRECT TESTIMONY, AS WELL AS THE FAILURE TO ISSUE ANY INSTRUCTION ON HOW TO CONSIDER THE DIRECT TESTIMONY THAT WAS PLAYED BACK, REQUIRES REVERSAL. (Not Raised Below).
POINT V4 A- 0981

- 21 EVEN IF ANY ONE OF THE COMPLAINED-OF ERRORS WOULD BE INSUFFICIENT TO WARRANT REVERSAL, THE CUMULATIVE EFFECT OF THOSE ERRORS WAS TO DENY DEFENDANT DUE PROCESS AND A FAIR TRIAL. POINT VI THE TRIAL COURT INAPPROPRIATELY CONSIDERED DEFENDANT'S SUPPRESSED STATEMENT, ERRED IN ITS ANALYSIS OF AGGRAVATING FACTOR SIX, AND FAILED TO CONSIDER THE IMPACT OF DEFENDANT' S ADVANCED AGE AT RELEASE ON THE APPROPRIATE SENTENCE. THE SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR A RESENTENCING. We reject the arguments that the trial court erred in admitting testimony and instructing the jury regarding eyewitness out

- of -court identification of defendant. We , however, reverse defendant's convictions because we conclude inadmissible hearsay testimony was allowed to prove defendant's lack of a firearm permit and the prosecutor's misconduct deni ed defendant a fair trial

. Considering a new trial is warranted, we do not add ress defendant's arguments regarding replay of the eyewitness's cross-examinat ion, cumulative error , or
sentence. I.5 A- 0981

- 21

To provide context to the issues raised on appeal, we br ie f ly summarize the trial testimony and procedural history. A. Shooting
On November 1, 2018, sometime between midnight and 1:0 0 a.m., Cuttino asked his live

- in girlfriend, Whitney Allen, to drive him to "18th an d 18th," in Newark, a place she had been to "[c]ountless" times before. After Allen parked on the one-way street in front of a house, Cuttino got out, walked up to the house 's porch, and knocked on the do or . A man she knew only by his nickname "Sleep," whom she later identified as defendant, ca me out. Before that night, she had seen Sleep, always at that same house durin g daylight hours, "more than five times" during the approximately one year she d ated Cuttino. Her interaction with Sleep was limited to "hi and bye" greetings with no conversation. Allen testified it was "bright enough" on the street for her to see that night; in her statement to law enforcement later that day, she st ated it was "not super bright" but there were streetlights. Allen initially saw Cuttino and Sleep talking and l aughing, which then turned to "arguing, and . . . fighting, " causing them to move off the porch next to a car parked in front of her car. Cuttino punch ed Sleep two times and then Sleep "pulled out [a] gun ." Allen could not re call or did not see where the gun6 A- 0981

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came from. She testified Cuttino "ended up running and Sleep p ursued him. . . . And he shot him. He killed [Cuttino], " then ran away. Allen also testified that Sleep fired the gun "so many" times and it was "continuous. " Allen drove her car to the middle of the street and go t out to attend to Cuttino, who was unresponsive. B. Identification of Defendant & Lack of a Permit to Carry a Firearm Felipe Ramirez and Rashon Greene of the Newark Poli ce Department were the first law enforcement officers to arrive a t the scene. While Ramirez aided Cuttino, Greene spoke to Allen, who was "very distressed," "crying," "screaming," and "say[ing] multiple things." Ramir ez stated that Allen was screaming, "He did it. He did it. I know who it i s" and "mentioned somebody" named Sleep. Sergeant Taray Tucker and Detective Salvatore Cordi of the Essex County Prosecutor's Office (ECPO) Homicide Task Force subs equently arrived at the

scene to assist. Tucker testified that surveillance video in the are a gave no closeup of the shooter. He described the lighting at th e South 18th Street crime scene that night as "pretty fair, " illuminated by streetlights and the intersection wa s "well- lit

. " Tucker also stated that, based on his investigatio n, defendant was arrested and an "inquiry was made" as to whether he had ever received a permit7 A- 0981

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to purchase or carry a firearm in New Jersey. "A determination was made" that he was "not authorized to carry

— or permitted to carry a firearm. " Later in the morning following the shooting, Allen went to the ECPO and showed Cordi a photograph of Cuttino and Sleep toge ther which she found on Cuttino's phone

. Allen took the photograph to show the detectives " that [it] was [Sleep] that did it, " meaning Sleep killed Cuttino. Later that same day, Allen formally identifi ed Sleep as defendant in a "sixpack" photo -array organized by ECPO Detective Daniel Villanuev a, who was not involved in the investigation. Allen identified photo three, defendant's photo as "Sleep . . . who killed my boyfriend Daquan Cutt ino." Defendant's pretrial motion to suppress Allen's out- of -court identification was denied. Allen testified at trial she was "sure" of her iden tification of Sleep from the photo array with out any doubt

. Moreover, she pointed out to the jury that Sleep, the person who killed Cuttino , was defendant. FBI Special Agent John Hauger testified as an expe rt in the field of historical cellular telephone data analysis

. Asked to track defendant's cell phone number through records obtained from a communicatio ns data warrant, Hauger testified that phone calls from that number between 10:57 p.m. on October 31,
2018 , and 1:17 a.m. November 1, 20 18 , were placed while the phone was near8 A- 0981

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649 South 18th Street in Newark. Phone calls start ing at 1:24 a.m. and 1:44 a.m. were made while the phone was moving southwest from that area. A final call at 1:50 a.m. was made further southwest, somewhere in the area of Stuyvesant Avenue and Lyons Avenue. Hauger agreed on cross-ex amination that the phone calls could have been made from anywhere in the squ are-mile sector noted on the maps the police provided, not necessarily at th e South 18th Street location, where Cuttino was shot

. II

. Initially, we address defendant's arguments that h is rights to due process and a fair trial were violated by the trial court's denial of his motion to suppress Allen's out- of -court identifications of him and its erroneous jury charge on identification

. A. Motion to Suppress Identifications Defendant moved for a "limited hearing . . . for co unsel to explore whether . . . Allen discussed her identification with any p rivate actors prior to selecting [defendant's Facebook] photo." He also argued Allen's identification reviewing the photo array was erroneous because detectives "f ailed to ask critical and mandatory questions, such that the record made was inadequate."9 A- 0981

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The trial court rejected defendant's contention the detectives erred in not following the requirements set forth in State v. He nderson 1 and Rule 3:11 that they ask Allen whether she discussed the Facebook p hoto identification with anyone else. The court ruled there was no error because there wa s no evidence of the suggestion cautioned by Henderson could lead to Allen's mistaken identification of defendant. The court pointed to the fact that Allen stated she was "familiar with" defendant, having met him over the summer and saw him "several times." The court stressed it was Allen who presented defen dant's Facebook photo to the detectives, which "they use[d ] . . . as a basis for a photo array that otherwise fully comports with Delgado, 2 Henderson, everything, but for a question about any private actors

— you know

— influenc[ing] [Allen's] identification here." In his appeal, defendant contends we should reverse his convictions because the trial court erred in allowing testimony concerning Allen's: "unrecorded identification of Sleep as the shooter when Allen brought a [Facebook] picture to the police station;" and "the recorded identification of

1 208 N.J. 208 (2011).

2 State v. Delgado, 188 N.J. 48 (2006).10 A- 0981

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[defendant] from the array as both Sleep and the sh ooter." Alternatively , he seeks remand for a Wade 3 /Henderson hearing

. In addition, defendant contends the trial court erred in "failing to give the reque sted tailored identification instruction" as to defendant's contention that "fam iliarity does not guarantee reliability." We review the denial of a Wade/Henderson identifica tion hearing for abuse of discretion. State v. Ortiz, 203 N.J. Supe r. 518, 522 (App. Div. 1985). We uphold a trial judge's admission of an out- of -court identification if "the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). To obtain a Wade hearing, a defendant must "proffer . . . some evidence of impermissible suggestiveness" which could lead to an erroneous id entification. Henderson , 208 N.J. at 239, 288 (alteration in original) ( ci tations omitted). 4 If a defendant presents sufficient evidence of impermissible sugge stiveness, the court should

3 United States v. Wade, 388 U.S. 218 (1967).

4 Our Supreme Court subsequently modified Henderson in part, adding where "no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared" defendants ar e entitled to a Wade hearing. State v. Anthony, 237 N.J. 213, 233 (2 019). Anthony does not change our analysis because Allen's identification was recorde d.11 A- 0981

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conduct an evidentiary hearing where the State must offer proof the proffered eyewitness identification is reliable based several variables. Id. at 288 -89. A Wade/Henderson hearing is not required for a "con firmatory" identification because such an identification is "n ot considered suggestive." State v. Pressley, 232 N.J. 587, 592 (2018). "A co nfirmatory identification occurs when a witness identifies someone he or she knows from before but cannot identify by name." Id. at 592-93. The Cour t explained the person identified "may be a neighbor or someone known only by a street name." Id. at 593. That is what occurred here. Allen had seen " Sleep " before and identified
him from the photo on Cuttino's Facebook page

. This was a confirmatory identification. Therefore, a Wade hearing was not required. Id. at 592. Accordingly, denying defendant's request for a Wade hearing was not an abuse of discretion. Turning to Allen's out

- of -court identification of defendant, our court rules detail the procedures law enforcement must follow f or the identification to be admitted at trial. Rule 3:11(c)(9) requires a reco rding of "a witness' statement of confidence, in the witness' own words, once an i dentification has been made ." Rule 3:11(c)(10) requir es the recording of "the identity of any individuals with whom the witness has spoken about the identificatio n procedure, at any time12 A- 0981

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before, during, or after the official identificatio n procedure, and a detailed summary of what was said." We conclude Allen's pho to array identification of defendant was not tainted by the detectives' failur e to adhere to these requirements. Allen unexpectedly, and voluntarily, presented the Facebook photo to law enforcement to show who killed her boyfriend. They did not direct, nor did Allen indicate, she would go home to get a photo of the shooter, Sleep. Th e record demonstrates Allen told police she look ed through Cuttino's Facebook

account to find the photo . In the photo were Allen , Cuttino, and Sleep ; she drew an arrow to Sleep on the picture at the request of the detective. Defendant has not cited, nor are we aware of, any authority suppo rting his claim indicating that the recording requirements of Rule 3:11 apply to ci rcumstances such as here, where a witness, unprompted, provides police with a photo claiming it shows the perpetrator of a crime. Law enforcement substantially complied with Rule 3:11 (c)(9 ) and (10)

. After Allen provided the Facebook photo, a detectiv e, who was not involved in the investigation or the Facebook identification, r ecorded Allen's review of the photo array and follow-up questioning about both th e photo she had selected from the array and the Facebook photo. When asked if she w ere "absolutely13 A- 0981

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certain" the person in the photo

–– defendant known to her as Sleep

–– was the shooter, she said " [y ] es ." She also stated there was no doubt in her mind that Sleep was the shooter, and no one forced or threate n ed her to identify him

. B. Identification Jury Charge Defendant argues he was deprived of a fair trial by the trial court's refusal to include "the role of familiarity and of unconsci ous transference" in the jury instruction on identification

. Defendant sought jury charge identification language that was not included in the model charge based on Henderson:

Research has shown that mere familiarity with a defendant does not increase the reliability of an identification unless there is evidence that the pe rson identified is a family member, friend, or longtime acquaintance of the witness. In assessing this identification[,] you should consider the degree of familiarity between the defendant and the eyewitness. Lesser degrees of familiarity do not enhance accuracy and may, in fac t, decrease accuracy of the identification. Defense counsel advised the court the proposed lang uage was "pieced together through research regarding other states' i nstructions relat ing to identification. And . . . there was an appearance in the Henderson Special Master report that related to familiarity. " Counsel also cited "several studies that show that a marginal level of familiarity with a suspect does not . . . increase14 A- 0981

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the reliability of an identification." Counsel not ed Allen testified that her "encounters" with defendant were "just in passing" and she argued the "minimal level of familiarity" was "really important here." Counsel also noted that it was "just a warning akin to the confidence level" of th e identification and that "the research shows it's not actually a predictor of acc uracy;" "[m]inimal familiarity does not increase the reliability of an identificat ion. " The State objected, arguing the requested language was not in the model jury charge and it "flies in the face of common sense. " The trial court, rel ying on Henderson 's recogni tion that "the lynch pin here for inclusion within the [identification] charge is general acceptance within the scientific community," denied defendant's request. The court reasoned defense counsel made an insufficient showing that there's g enerally accepted scientific research to support the recommended language. The court further determined Allen's identification of defendant was a "confirma tory identification," "which is not considered suggestive" under Pressley. The co urt thus issued an identification instruction that generally track ed the language in the Modern Jury Charges (Criminal), "Identification: In-Court and Out

- Of -Court Identifications" (rev. May 18, 2020)

.15 A- 0981

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"Appropriate and proper jury instructions are essen tial to a fair trial." State v. McKinney, 223 N.J. 475, 495 (2015) (quotin g State v. Green, 86 N.J. 281, 287 (1981)). "[J]ury charges 'must outline th e function of the jury, set forth the issues, correctly state the applicable law in u nderstandable language, and plainly spell out how the jury should apply the leg al principles to the facts as it may find them.'" Prioleau v. Ky. Fried Chicken, In c., 223 N.J. 245, 256 (2015) (quoting Velazquez v. Portadin, 163 N.J. 677, 688 ( 2000)). "Erroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." State v. Afanado r, 151 N.J. 41, 54 (1997) (citing State v. Brown, 138 N.J. 481, 522 (1994)). "Appellate courts apply a harmless error analysis w hen a defendant has objected to a jury charge." State v. Berry, 471 N. J. Super. 76, 105 (App. Div. 2022) (citing State v. Jenkins, 178 N.J. 347, 361 (2004) ) ; see also R. 2:10 -2. "Under that standard, there must be some degree of possibility that [the error] led to an unjust result. The possibility must be r eal, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Id. at 105-06 (alterations in o riginal) (quoting State v. Baum , 224 N.J. 147, 159 (2016) (quoting State v. Lazo, 20 9 N.J. 9, 26 (2012))). The reviewing court must first "determine whether the t rial court erred." Jenkins ,16 A- 0981

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178 N.J. at 361. If error occurred, "defendant's c onviction cannot stand if the mistake 'was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jur y to a result it otherwise might not have reached.'" Ibid. (quoting State v. Brims, 168 N.J. 297, 306 (2001)). "Model jury charges are often helpful to trial judg es in performing the important function of charging a jury." State v. Cotto, 4 71 N.J. Super. 489, 543 (App. Div.) (citing State v. Concepcion, 111 N.J. 3 73, 379 (1988)) , certif. denied, 252 N.J. 166 (2022). Thus, "a jury charge is presumed to be proper when it tracks the model jury charge because the pr ocess to adopt model jury charges is 'comprehensive and thorough.'" Ibid. (quo ting State v. R.B., 183 N.J. 308, 325 (2005)). Altho ugh our Supreme Court has held that "the better practic e is to mold the instruction in a manner that explain s the law to the jury in the context of the material facts of the case[,]" Conce pcion, 111 N.J. at 379, failure to do so does not support defendant's arguments for the additional instruction he sought below. With these principles in mind, we conclude substant ially for the reasons expressed by the trial court that there was no erro r in rejecting defendant's proposed language. Considering the comprehensive i dentification instruction issued largely tracked the model charge, which is based on Henderson, and the17 A- 0981

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absence of any testimonial evidence to support defe ndant's application , no injustice resu lt ed in the identification charge provided by the court . See R. 2:10

- 2.
III. Defendant argues the trial court violated his righ ts under the Confrontation Clause by allowing inadmissible hears ay testimony to prove defendant did not possess a permit to carry a firea rm in this state

. Sgt. Tucker testified, without objection, that based upon an "i nquiry made to the New Jersey State Police[,] " wh ich maintains the state's firearm permit records, d efendant did

not possess a permit to carry a firearm in New Jersey

. Defendant contends the lack of admissible evidence regarding defendant possession of a firearm permit was compounded by th e prosecutor's summation remarks: Defendant was armed that morning. He had no right to

be carrying a firearm. He had no permit for it. H e had no permit to purchase the weapon and he had, more importantly, no permit to carry it. But yet he was armed. He was armed with a semi-automatic handgun. And we know he had at least eleven rounds in that weapon. How do we know that? Eleven shell casings

. And they all came from one gun. One gun and one gun only.18 A- 0981

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Defendant contends the error requires reversal of a ll his convictions, not just his conviction for second-degree unlawful possession of a handgun

. Because defendant failed to object to Tucker's testimony , "we analyze his claim . . . through the lens of plain error review, " State v. Ross, 229 N.J. 389, 408 (2017), and we will reverse only if it was "clearl y capable of producing an unjust result, " R. 2:10 -2. "The mere possibility of an unjust result is n ot enough." State v. Funderburg, 225 N.J. 66, 79 (201 6). To reverse , the error "must be sufficient to raise 'a reasonable doubt . . . as to whether the error led the jury to a result it otherwise might not have re ached.'" Ibid. (alteration in original) (quoting Jenkins, 178 N.J. at 361). There is no doubt Tucker's testimony that defendant did not possess a permit to carry a firearm was hearsay

. His testimony was "offer[ed] in evidence to prove the truth of the matter asserted"

–– that defendant was guilty of seconddegree unlawful possession of a handgun. See N.J.R .E. 801(c)(2)

. His testimony was not based on his personal knowledge, but on information he had obtained from a non -testifying witness who had searched the State Poli ce firearms database. In opposition, t he State has not presented any argument that Tucker's testimony is admissible as a hearsay excep tion under our Rules of Evidence. The State did not introduce any document ary evidence of the firearms19 A- 0981

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database search, and none of the hearsay exceptions relating to records apply. Cf. N.J.R.E. 803(c)(6) (records of regularly conduc ted activity, i.e., business records); N.J.R.E. 803(c)(8) (public records, repor ts, and findings); N.J.R.E. 803(c)(10) (certification of absence of public reco rd or statement); see also N.J.R.E. 902(a) (self-authentication of New Jersey public documents); N.J.R.E. 902(k) (self-authentication of a certification of lack of official record). This situation is akin to that in State v. Martini, where the State offered testimony like that offered by Tucker to support a conviction for second-degree unlawful possession of a handgun. 131 N.J. 176, 31 9 (1993). An investigating officer testified that he had "contacted the New Je rsey State Police" to "check to see if [the defendant] had a permit to carry a g un in the State of New Jersey[,]" and "found that he did not." Ibid. This was "[t]he only evidence the State offered" to convict defendant of the handgun offens e. Ibid. As our Supreme Court held, "[i]n order to prove the absence of an entry in State Police files under [former New Jersey] Evidence Rule 63(14) (the busin ess record exception to hearsay), a witness with personal knowledge of thos e files must testify." Id. at 320. Because no testimony by a witness with person al knowledge had been proffered, the Court reversed Martini's conviction of unlawful possession of a handgun. Ibid.20 A- 0981

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Here, as in Martini, the State proffered no testimo ny by any witness with personal knowledge of the search of the State Polic e firearms database. Thus, we reverse defendant's conviction for second-degree unlawful possession of a handgun because the only evidence supporting that c onviction was the inadmissible hearsay testimony by Tucker. As for defendant's claim that Tucker's testimony also warrants reversal of the remaining offenses, we disagree. The prosecutor's limited reference to the lack of a permit did not "substantially prejudice [] " the jury's ability to "evaluate the merits" of defendant's defenses to the other of fenses, or ha ve the "clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Defendant's lack of a firearm permit did not bolste r the State's proofs that defendant committed murder, nor did the prosec utor make that argument. Defendant also raises a Confrontation Clause argume nt based primarily

on State v. Carrion, 249 N.J. 253 (202 1)

. In Carrion, decided six weeks after defendant was sentenced , the Court held the defendant's Confrontation Clause rights were violated when the trial court admitted "an affidavit attesting to [the defendant's lack of a firearm permit which was] cre ated after a search of the firearm registry database." Id. at 27 1-72. The affidavit was "testimonial" and as the sole evidence proffered to prove the defenda nt was unlicensed , "the21 A- 0981

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officer knowledgeable about how the search of the d atabase was performed" could not be questioned. Id. at 272. Because we reverse defendant's conviction for unlaw ful possession of a handgun due to the admission of inadmissible hearsa y, we need not address his Confrontation Clause argument as well as the questi on of Carrion's retroactivity

. See Comm. to Recall Robert Menendez from the Off. o f U.S. Senator v. Wells , 204 N.J. 79, 95 (2010) (stating that courts "strive to avoid reaching constitutional questions unless required to do so"); Rand olph Town Ctr., L.P. v. C ounty of Morris, 186 N.J. 78, 80 (2006) ( "C ourts should not reach a constitutional question unless its resolution is im perative to the disposition of litigation.").
IV. For the first time on appeal, defendant contends t he prosecutor's improper summation comments require a new trial. Defendant challenges the following remarks: I remember reading something quite a few years

ago and it was

— it was actually spoken by a famous prosecutor in a major case. . . . And I'd like to impart this to you now. I can't improve upon this, so I'm just going to quote it verbatim[:]22 A- 0981

- 21 "The suspended judgment with which we open this case is no longer appropriate. The time has come for final judgment. And if the case I present seems harsh and uncompromising it is because the evidence makes it so. If you were to save these men, that they are not guilty, it would be as true to say there are no slain, there has been no crime." Defendant maintains that the "major case" referred to by the prosecutor "when he told [the] jury it had a duty to convict" was the Nuremberg trials. He contends the misconduct requires reversal as "[t]he State's case rested on the issue of the identification" and "[t]he State . . . interfered with that process" arguing defendant must be guilty because Cuttino wa s killed. 5 Arguably, the prosecutor's remarks were not prejudi cial because they were not objected to by defense counsel. See R.B., 183 N.J. a t 333 ("Generally, if no objection was made to the improper remarks, the rem arks will not be deemed prejudicial." (citation omitted)). Had there been an objection, the trial court would have been prompted to consider striking the r emarks and to provide specific curative instructions to address them. See State v. Smith, 212 N.J. 365,

5 Defendant and the State filed Rule 2:6 -11(d) letters, directing our attention to two unpublished decisions that reached different co nclusions on this same issue

. We do not cite them as they have no precedential va lue. R

. 1:36 -3.23 A- 0981

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403 -04 (2012). Because defendant did not object at tr ial to the prosecutor's remarks, we review them for plain error. See R. 2:10 -2. Prosecutors are entitled to zealously argue the mer its of the State's case, Smith, 212 N.J. at 403, but they still occupy a special position in our system of criminal justice, see State v. Daniels, 182 N.J. 80 , 96 (2004). "[A] prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177 ( 2001) ). Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, i n order to justify reversal, the misconduct must have been 'so egregious that it deprived th e defendant of a fair trial.'" Smith, 167 N.J. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Said another way, to warrant a new trial, summation remarks must be "so prejudicial that 'it clearly and convincingly appears th at there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting
R. 4:49 -1(a)). A reviewing court evaluates challenged rem arks not in isolation but in the context of summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)). Also,24 A- 0981

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the challenged remarks are to be "viewed in the con text of the entire record." State v. Bey, 129 N.J. 557, 622 (1992). Given the prosecutor did not identify "the famous prosecutor" or "major case," we have no sense of knowing whether the jury realized the reference was to United States Chief of Counsel Robert Jackson's closi ng argument during the 1945 to 1949 trials of Nazi military officials and their suppor ters for charges of crimes against peace and humanity. See Nuremberg T rials, History (June 7, 2019) , https://www.history.com/topics/world-war- ii/nu remberg-trials; Robert H. Jackson, Closing Arguments for Conviction of Naz i War Criminals, 20 Temp. L.Q. 85, 86, 107 (1946). Indeed, we doubt that the jury hearing a case some seventy years later made the connection, but t he possible connection is disconcerting

. This is a close call

. But we conclude the remarks were so out of line an d unrelated to any evidence or issue in the trial tha t they infected the jury's deliberation, and deprived defendant of a fair tria l. We reject the State's contention the comment was inconsequential because it was "a quick singular moment at the very end of summation" and that the j ury's request for a review of the elements of the crime before rendering its v erdict showed "[t]his quick,25 A- 0981

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seconds-long quote was obviously not enough to make the jury forget the evidence in pursuit of some vague rhetoric. " The fact that the prosecutor's remarks were taken f rom the Nuremberg trials is not dispositive

. The remarks were not meant to counter defendant's trial strategy or summation argument, nor related to tria l evidence. See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001) (" A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial."). W e recognize the trial court 's jury charges correctl y informed the jury of the State's burden of proof

. The remarks, however, the minimized the State's pro ofs against defendant to secure his convictions

. The prosecutor intruded upon defendant's right to a fair trial: inform ing the jurors to choose between competing burdens of proof, intimating defendant must be guilty simply because a killing occurred. Because he remarks were prejudicial and denied defendant a fair trial , we are constrained

to reverse his convictions.
V. Because we are remanding for a new trial, it is not necessary to address defendant's contentions raised in Points IV

– failing to re play Allen's crossexamination, V

– cumulative error, and VI

– sentence.26 A- 0981

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Reverse and remand ed for retrial. We do not retain jurisdiction.