NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0377-20 

 A-0437-21

STATE OF NEW JERSEY, 

 Plaintiff-Respondent,

v.

FUQUAN K. KNIGHT, 

a/k/a FUQUAN K. KNIGHT, JR., 

 Defendant-Appellant. 

____________________________ 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

SHAQUAN K. KNIGHT, 

a/k/a SHAQUAN KYLE, and 

SHAQUAN KYLEKNIGHT, 

 Defendant-Appellant. 

____________________________

Submitted (A-0377-20) and Argued (A-0437-21) 

November 6, 2023 – Decided December 21, 2023 

Before Judges Sabatino, Marczyk, and Chase. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 19-01-0010. 
2 A-0377-20

Joseph E. Krakora, Public Defender, attorney for 

appellant Fuquan K. Knight (Andrew R. Burroughs, 

Designated Counsel, on the briefs). 

Morgan A. Birck, Assistant Deputy Public Defender, 

argued the cause for appellant Shaquan K. Knight 

(Joseph E. Krakora, Public Defender, attorney; Morgan 

A. Birck, of counsel and on the briefs). 

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent State of New Jersey 

in A-0377-20 (Caitlinn Raimo, Special Deputy 

Attorney General/Acting Assistant Prosecutor, of 

counsel and on the briefs).

Hannah Faye Kurt, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent State of New Jersey in A-0437-21 

(Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney; Hannah Faye Kurt, of counsel and 

on the brief). 

The opinion of the court was delivered by 

SABATINO, P.J.A.D. 

These two appeals, which we consolidate for purposes of this opinion, 

arise out of a joint trial in which two brothers, Fuquan K. Knight (defendant in 

A-377-20) and Shaquan K. Knight (defendant in A-437-21), were found guilty 

by a jury of armed robbery and other offenses.1 The State's proofs showed that 

1

 For sake of clarity, we refer to defendants and their father by their first names 

in this opinion; no disrespect is intended. 
3 A-0377-20

defendants, along with their father Kyler Knight, robbed the victim behind a 

deli, threatening him with a knife and at gunpoint. The victim identified 

defendants to the police as two of the three robbers, confirming his identification 

of them at a pretrial Wade2 hearing. 

The victim died of unrelated causes before trial, but his earlier testimony 

at the Wade hearing and his post-robbery 9-1-1 call to the police were presented 

to the jury over defendants' objection. Other evidence substantiated defendants' 

guilt, including, among other things, surveillance videos that recorded events 

inside and outside the deli, as well as incriminating items seized by police from 

their residence. Defendants did not call witnesses or testify at trial, but disputed 

the victim's identification and their involvement in the robbery. 

The trial court sentenced Fuquan, who was twenty-seven at the time of the 

robbery, to an aggregate custodial term of sixteen years. The judge sentenced 

Shaquan, who was nineteen at the time of the robbery, to a term of eleven years. 

Both sentences were subject to an eighty-five percent parole ineligibility period 

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

raise substantially overlapping issues on appeal, contesting their convictions and 

respective sentences. 

2

 United States v. Wade, 388 U.S. 218 (1967). 
4 A-0377-20

A key issue raised by both defendants is whether the trial court erred by 

allowing the jury to observe multiple times, in slow motion and with pauses, an 

approximately six-second segment of a surveillance video. That video, which 

was filmed through a glass door in the rear of the deli, shows the victim quickly 

being escorted by the three culprits outside the building. One culprit appears to 

be pointing a firearm at the victim, and another appears to be pushing defendant 

forward. The State presented the video as part of its case-in-chief without 

objection, and then played it again several times in closing argument without 

objection, once in slow motion. During both days of their deliberations, the 

jurors requested the video to be replayed several more times, in slow motion and 

at other varying speeds and with intermittent pauses. The trial judge permitted 

those jury playbacks under her supervision in the courtroom, over defendants' 

objection. 

Defendants contend they were unduly prejudiced by these video 

playbacks, citing research indicating that slow-motion presentations can 

increase a viewer's perception or inferences of intentional conduct. To date, 

there are no published New Jersey opinions that address the question. 

As a matter of first impression, we hold that—subject to offsetting 

concerns of undue prejudice—surveillance video footage may be presented to 

jurors in slow motion or at other varying speeds, or with intermittent pauses, if 
5 A-0377-20

the trial court in its discretion reasonably finds those modes of presentation 

would assist the jurors' understanding of the pertinent events and help them 

resolve disputed factual issues. We further hold—again subject to offsetting 

concerns of undue prejudice—that trial courts in their discretion may grant a 

jury's requests during deliberations to replay the videos in such modes one or 

more times, provided that the playbacks occur in open court under the judge's 

supervision and in the presence of counsel. 

We discern no reversible error concerning the video playbacks in this case, 

which would have aided the jurors in resolving the parties' disputes over the 

robbers' identities and their respective actions with the victim behind the deli. 

Going forward, we offer several non-exclusive factors to guide the court when 

considering whether to allow videos to be shown in varying speeds or with 

intermittent pauses during the trial and summations, and on a jury's request 

during deliberations. We further recommend that the Model Criminal Jury 

Charge Committee consider crafting an instruction to guide jurors when 

surveillance videos are presented in such modes. 

In the unpublished portion of this opinion, we conclude defendants' 

remaining arguments to set aside their convictions are unpersuasive, although 

we remand solely for reconsideration of their sentences. 
6 A-0377-20

I.

The facts relating to the robbery are largely based on the victim's 

testimony at the Wade hearing, as well as the surveillance videos played at trial. 

A. Wade Hearing 

 On October 11, 2018, the victim, Thaddeus Osbourne, went to Poppie's 

Deli3 in East Orange to cash a betting slip. He had won $500 in cash. As was 

later revealed, Osbourne was also at the deli to buy marijuana. 

Shaquan was at the deli, wearing a black hoodie with white letters on it. 

Osbourne identified him at the Wade hearing, stating that he knew Shaquan from 

the neighborhood and had bought marijuana from him once before. While inside 

the deli, Shaquan offered to sell marijuana to Osbourne, and, when Osbourne 

tried to pay him, Shaquan told him to walk outside because it was "too hot," 

meaning there were too many police around. 

As Osbourne followed Shaquan outside to the rear of the deli, a man 

grabbed him, pushed him towards the back of the building, and held a knife to 

his neck. Another person held a gun to his face. Osbourne later identified the 

person with the knife as Kyler, describing him as a shorter "older guy" with a 

3

 The store in question was referred to in the record as Poppie's, Poppy's, and 

Poppie's Deli. For the sake of consistency, we refer to it as Poppie's.
7 A-0377-20

beard, dark skin, and a burgundy hoodie. He identified Fuquan as the person 

with the gun, stating he had dreadlocks and wore a black and gold hoodie. 

 Osbourne said the gun was black with a brown handle, and approximately 

shoulder width in length.4 He never saw the knife, but only felt it against his 

neck. According to Osbourne, while he was held at gunpoint and knifepoint, 

Shaquan patted him down, searched his pockets, and took his keys and wallet. 

Osbourne testified that an observer in a parking lot yelled at defendants to 

"stop or whatever." Kyler yelled back that Osbourne owed them money, which 

made the observer "mind his business or whatever." When the robbery was 

completed, defendants ran off and Osbourne yelled to them asking for his keys, 

which defendants threw back to him. 

 After the robbery, Osbourne said that he briefly followed defendants—

observing that they headed towards Princeton Street—and then returned to his 

home on Evergreen Place and called 9-1-1. Osbourne told the operator that he 

had been robbed and that he did not know the perpetrators.5 During crossexamination, Osbourne agreed he had lied about not knowing the robbers, but 

4

 The State contended it was a sawed-off shotgun. 

5

 The 9-1-1 call, which we discuss in Part III, was played for the jury. 
8 A-0377-20

then clarified that he did not know them personally and did not know their 

names. 

 When the police arrived, they drove Osbourne back to Poppie's and 

watched the surveillance video together inside the deli. Osbourne identified one 

of the suspects in the video (Shaquan) and provided the police with descriptions 

of all three suspects. The police then transported Osbourne to the station and 

obtained a recorded statement, which included photo identifications of Fuquan 

and Shaquan. Osbourne testified that although he did not know their names, he 

had previously seen Shaquan five or six times, had purchased marijuana from 

him once before, and had seen Fuquan with Shaquan once. 

 Osbourne initially told the police that he had left Poppie's and was walking 

to his car when he was robbed. However, during his testimony, he agreed that 

he had lied about this, and that he had been trying to buy marijuana. Although 

he did not tell the police this during his original statement, he claimed that he 

had mentioned this detail to an unnamed police officer while at the station. He 

also stated that he never brought up this detail again, until the day before the 

Wade hearing, when he disclosed this fact to the prosecutor's office. He 

explained that he had not mentioned the marijuana because he thought it was 

irrelevant. A few days later, Osbourne returned to the station and identified 

Kyler's photograph as depicting the third suspect. 
9 A-0377-20

B. The Investigation 

Officer Hassan Gafaar was one of the police who initially responded to 

the robbery. Osbourne described to Officer Gafaar the robbery and the suspects, 

whom he then portrayed as strangers. Gafaar first took Osbourne to Poppie's, 

where they reviewed the surveillance video, and then drove him to police 

headquarters for a statement.

 At headquarters, the lead detective assigned to the case, Felix Lantigua, 

met with Officer Gafaar and Osbourne. This conversation was not recorded, and 

it was meant to gather "the basics" of the incident, including what happened, a 

description of the suspects' clothing, and what weapons they used. 

 Next, Detective Lantigua canvassed the area to locate surveillance 

cameras. Law enforcement collected videos from the interior of Poppie's and 

from a liquor store neighboring Poppie's, which showed the front and back of 

the deli. After watching the videos, Lantigua recognized Shaquan, whom he 

knew from the community. At some point Lantigua also identified Fuquan as 

the suspect in the black and gold top. Based on his familiarity with Fuquan and 

Shaquan, Lantigua collected photos of them for Osbourne to view. During his 

later testimony, the detective also identified Kyler as the suspect in the burgundy 

sweatshirt. 
10 A-0377-20

Detective Lantigua then took a formal statement from Osbourne. During 

this statement, Osbourne did not disclose that he had cashed in a bet or had 

attempted to buy marijuana from Shaquan. According to Lantigua, Osbourne 

said "he was familiar with two of the suspects from having encounters numerous 

times in the area." Based on this information, Lantigua presented Osbourne with 

the two photos of Fuquan and Shaquan. He described this procedure as a "one

on one" photo array, and said it was an appropriate identification method if the 

witness was familiar with the suspects, as Osbourne was. Osbourne identified 

both defendants as the robbers. 

Based on these identifications, Lantigua obtained arrest warrants for 

Fuquan and Shaquan. Lantigua went to defendants' home to arrest them, but 

only Kyler was present.6 Lantigua "immediately" recognized Kyler as the third 

suspect, based on his facial hair and because "he walked with a limp." However, 

he did not immediately arrest Kyler because he was not "familiar with [him] and 

neither was the victim." 

Lantigua then asked an officer to generate a six-photo array for Kyler, 

which Sergeant Stephen M. Rochester administered. Osbourne positively 

identified Kyler's photograph. Consequently, Lantigua obtained an arrest 

6

 It appears from testimony that defendants' home was located within a few 

blocks of the deli. 
11 A-0377-20

warrant for Kyler and attempted to effectuate the warrant that same day, but no 

one was home. He went back to defendants' home that evening to retrieve 

surveillance footage from the shared spaces in the home, which was a multifamily residence. After reviewing this surveillance footage, Lantigua obtained 

a search warrant for defendants' unit. 

Two days later, Lantigua and other officers effectuated the search warrant 

at defendants' residence. They found clothing that matched the garments 

apparently worn during the robbery by Shaquan and Kyler, as well as a wallet 

containing Osbourne's identification cards and debit card. The officers did not 

retrieve a gun, knife, or the clothing apparently worn by Fuquan. 

C. The Indictment and Pretrial Events 

In January 2019, a grand jury indicted Fuquan on the following four 

counts: (1) second-degree conspiracy to commit robbery against Osbourne, 

N.J.S.A. 2C:5-2(a)(1); (2) first-degree armed robbery, N.J.S.A. 2C:15-1; (3) 

third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1); and (4) 

second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-
12 A-0377-20

4(a). Shaquan was similarly indicted on only the first two counts and not the 

weapon possession charges.7

 In October 2019, the court held a Wade hearing on defendants' motion to 

suppress Osbourne's out-of-court identification of Fuquan and Shaquan, which 

involved a single-photo array of each defendant. In addition to describing the 

robbery and subsequent events at the hearing, Osbourne testified that he knew 

Fuquan and Shaquan from around the neighborhood and acknowledged he had 

purchased drugs from Shaquan once in the past. 

 After the Wade hearing, the court ruled that Osbourne's prior 

identifications were admissible, finding that Osbourne was truthful, the 

surveillance videos showed that Shaquan and Osbourne knew each other, and 

consequently the trial court found it was appropriate for the police to have shown 

Osbourne a single-photo array when identifying Fuquan and Shaquan. 

 On November 13, 2019, the State notified the court that Osbourne had 

passed away. While his cause of death was unknown, defendants were not 

7

 Defendants' father, Kyler, also was charged but was not tried with defendants 

because he was being held out-of-state on different charges. Kyler did not 

participate in any aspect of this proceeding, and he subsequently pled guilty to 

second-degree conspiracy to commit a robbery or bodily injury, N.J.S.A. 2C:5-

2(a)(1), 2C:15-1(a)(2), and third-degree possession of a weapon for unlawful 

purpose, N.J.S.A. 2C:39-4(d), and was sentenced to a six-year term. 
13 A-0377-20

implicated in his passing. The court subsequently granted the State's application 

to admit Osbourne's Wade testimony at trial under N.J.R.E. 804(b)(1)(A) (prior 

testimony of an unavailable witness), finding that defendants had a sufficient 

opportunity to cross-examine Osbourne at the Wade hearing and had a similar 

motive in conducting this cross-examination. 

D. The Trial 

 Trial commenced six days later on November 19, 2019, and continued for 

three non-consecutive days, concluding with testimony on December 4, 2019. 

The State's proofs included Osbourne's testimony at the Wade hearing and his 

9-1-1 call to the police, surveillance video footage taken at and near the deli, the 

incriminating clothing and victim's wallet found at defendants' residence, and 

the testimony of police and civilian witnesses. 

Defendants did not testify or present any witnesses. Through his attorney, 

Fuquan disputed whether Osbourne was robbed, and, if so, whether he took part 

in such a robbery. He also disputed possessing a firearm. 

Shaquan's counsel acknowledged that his client had an interaction with 

Osborne that day inside the deli, but that he denied taking part in robbing 

Osbourne outside. In summation, Shaquan's attorney argued that even if 

Shaquan was one of the three men shown on video with Osbourne behind the 

building, Shaquan was merely present and was not taking part in any 
14 A-0377-20

wrongdoing. The State, meanwhile, characterized Shaquan as the mastermind 

of the robbery. 

In the afternoon of its second day of deliberations, the jury informed the 

court that it was at a "standstill" on one charge and requested guidance should it 

be unable to reach a decision. The court instructed the jury to continue 

deliberating, and thirty minutes later, the jury delivered a guilty verdict on all 

charges. 

E. Sentencing 

 On February 18, 2020, the court sentenced Fuquan to an aggregate term 

of sixteen years, and Shaquan to an aggregate term of eleven years. We discuss 

those sentencing details below in Part V. 

II. 

Fuquan argues on appeal: 

POINT I 

THE TRIAL COURT DENIED DEFENDANT'S 

SIXTH AMENDMENT CONFRONTATION RIGHTS 

WHEN IT PERMITTED THE INTRODUCTION OF 

THADDEUS OSBORNE'S WADE HEARING 

TESTIMONY AT TRIAL. 

POINT II 

THE TRIAL COURT DENIED DEFENDANT'S 

CONFRONTATION RIGHTS WHEN IT 
15 A-0377-20

PERMITTED THE INTRODUCTION OF A 

TESTIMONIAL 9-1-1 CALL AT TRIAL. 

POINT III 

THE TRIAL COURT ERRED WHEN IT PERMITTED 

THE 9-1-1 CALL TO BE PLAYED UNDER THE 

EXCITED UTTERANCE EXCEPTION TO THE 

HEARSAY RULE. 

POINT IV 

THE TRIAL COURT DENIED DEFENDANT HIS 

RIGHT TO A FAIR AND RELIABLE TRIAL WHEN 

IT PERMITTED SURVEILLANCE VIDEO 

RECORDINGS TO BE REPLAYED IN SLOW 

MOTION AND PAUSED MULTIPLE TIMES OVER 

DEFENDANT'S OBJECTION. 

POINT V 

THE TRIAL COURT ERRED WHEN IT FAILED TO 

ACCEPT A PARTIAL VERDICT. 

POINT VI 

THE TRIAL COURT'S CUMULATIVE ERRORS 

DENIED DEFENDANT A FAIR TRIAL. 

POINT VII 

THE [SIXTEEN]-YEAR SENTENCE IMPOSED WAS 

MANIFESTLY EXCESSIVE GIVEN THE UNIQUE 

FACTS OF THE CASE. 
16 A-0377-20

Meanwhile, Shaquan argues on appeal: 

POINT I 

THE TRIAL COURT COERCED A VERDICT WHEN 

IT MADE CLEAR THE TRIAL WOULD END ON 

DECEMBER 6 AND REFUSED TO TAKE A 

PARTIAL VERDICT ON THAT DATE. 

POINT II 

THE ADMISSION OF THE VICTIM'S WADE 

HEARING TESTIMONY WAS HEARSAY AND 

VIOLATED DEFENDANT'S RIGHT TO 

CONFRONTATION. 

POINT III 

THE ADMISSION OF THE 9-1-1 CALL WAS ALSO 

HEARSAY THAT VIOLATED DEFENDANT'S 

CONFRONTATION RIGHTS. 

POINT IV 

THE TRIAL COURT ERRED IN FAILING TO 

INSTRUCT THE JURY ON ONE-ON-ONE 

IDENTIFICATIONS OR LACK OF A BLIND 

ADMINISTRATOR. 

POINT V 

THE TRIAL COURT ERRED IN ALLOWING THE 

SURVEILLANCE FOOTAGE TO BE PLAYED IN 

SLOW MOTION. 

POINT VI 

THE SENTENCE WAS THE RESULT OF AN 

IMPERMISSIBLE TRIAL PENALTY AND IS 
17 A-0377-20

EXCESSIVE WHEN COMPARED TO THE 

CODEFENDANT'S—HIS FATHER—SENTENCE 

OF SIX YEARS OF INCARCERATION. 

We address these issues in a reorganized sequence. 

III. 

The first issue we address—a novel one under our case law—concerns the 

repeated playback of the surveillance video footage in slow motion and at other 

varying speeds, and in intermittent-pause modes. 

A.

The State played several surveillance videos during the trial, including 

videos from the interior of Poppie's, from a neighboring property showing 

different angles of the exterior of Poppie's, and from defendants' residence. The 

key video at issue here is exhibit S-31, which shows a rear view of Poppie's 

interior, including its back door which offered a brief glimpse into the back 

parking lot where the robbery took place. The video has no audio track.8 

Starting at 11:41:38, the video shows four men walking by the back door. 

The video appears to show Osbourne, closely followed by a man the State 

contended was Kyler, who seemed to be holding onto Osbourne by the neck or 

8

 We have reviewed the video evidence as part of our consideration of the issues 

raised on appeal. The approximate six-second segment in which the four men 

are filmed passing by Poppie's rear door is the most pertinent. 
18 A-0377-20

shoulder. Walking behind them is another man, who the State contended was 

Fuquan, holding a black and brown object in one hand. The last man walking 

in the group allegedly is Shaquan, who does not appear to be holding anything. 

The robbery apparently occurred off-camera. 

 The jurors first were shown this portion of the video (from 11:41:30 to 

11:43:05) during the State's case-in-chief, seeing it once at normal speed. 

Later, during their summations, defendants did not replay any of the 

videos for the jury. However, Shaquan's attorney told the jury that the State 

would likely play the videos in slow motion during its own summation. 

As anticipated, the State replayed in closing argument numerous sections 

of the videos, mostly at normal speed, and with a few sections fast-forwarded. 

The State also played in slow motion and with pauses the video showing the rear 

of Poppie's. Defendants did not object to that presentation. 

On the first day of deliberations, the jury made a number of requests. They 

asked to review several of the surveillance videos, hear the 9-1-1 call again, and 

review Osbourne's Wade testimony. All counsel and the court agreed with 

Shaquan's attorney's position that the video should be played at normal speed, 

"[u]nless," the court added, "they ask for something different." 

Before the playback took place, the jury amended its request and asked 

for a replay only of the video from the rear interior of Poppie's, requesting that 
19 A-0377-20

it be replayed "at least three times, slowly and pause[d]" at 11:41:41, the point 

when the men the State claimed to be Fuquan and Shaquan walked by the back 

door. At this point, Fuquan's attorney objected, arguing that case law required 

the video to be played in the same way as it had been presented at trial. The 

court asked counsel to use the lunch break to research this point. Following the 

lunch break, Fuquan's attorney said he was unable to find the case law but 

presented studies about how playing videos in slow motion "increase[d] the 

likelihood of conviction." Shaquan's attorney relied on Fuquan's arguments on 

this point. 

The State contended the articles cited by the defense were unreliable "junk 

science," and that playing the videos in slow motion was not interfering with the 

jury's function but instead was honoring their request. The court disagreed that 

the studies constituted junk science, but found that defendants' arguments were 

not supported by case law, and as a trial court, it was not in a position to create 

new law. 

 Consequently, the court permitted the deliberating jurors to view the 

videos in slow motion, as they requested. Before doing so, the court directed 

the jury to select a "pauser," designating a juror to direct the State when to pause, 
20 A-0377-20

rewind, and replay the video.9 The State then played the video for the jury that 

day a total of ten times, at varying speeds and starting points. 

 On the second day of deliberations, the jury asked to see the same sixsecond video clip again, from 11:41:39 to 11:41:45. They specifically asked the 

court to play the video slowly three times, "zoomed in," and paused at 11:41:41. 

The State and defendants agreed they could not zoom in the video, as that would 

constitute altering the evidence. The judge granted the jurors' request, 

permitting the six-second segment of the video to be played five more times, 

played at a speed of five times slower, with a final pause at 11:41:41. 

In total, the jurors watched portions of the video fifteen additional times,10

mostly at slower speeds and sometimes with intermittent pauses. 

On appeal, both defendants11 argue that the court erred in allowing the 

jury to repeatedly view the surveillance videos in slow motion during 

9

 Defendants did not object to the jury's designation of a pauser, and do not 

claim error on appeal about that designation. The transcript reflects that, when 

the videos were replayed in open court, another juror voiced several requests to 

replay the footage several times in slow motion, and those requests were also 

honored. 

10

 The briefs calculate the total as fourteen additional times. 

11 The only significant difference between defendants' two appellate briefs is 

that Shaquan cites two more articles addressing the dangers of playing videos at 

a trial in slow motion. 
21 A-0377-20

deliberations. They contend the deliberating jurors should have watched the 

video as it was presented during the trial. They assert the repeated playing of 

the video in slow motion and at varying speeds with intermittent pauses resulted 

in the jury being exposed to a "distorted reality." They further argue that, at the 

very least, the court should have given the jury a limiting instruction about how 

playing a video at different speeds can manipulate their perception. No such 

limiting instruction was requested, however. 

B.

 As we have previously noted, there has been an "explosive growth in the 

number of surveillance cameras in operation."12 State v. Watson, 472 N.J. 

Super. 381, 472 (App. Div. 2022), rev'd on other grounds, 254 N.J. 558 (2023). 

Police investigations involve "canvassing the surrounding neighborhood not just 

for potential suspects and eyewitnesses but also for public and privately-owned 

video cameras that may have captured a reported crime, the events leading up to 

it, or its aftermath (e.g., flight from the scene)." Ibid. Consequently, such 

"recordings have become a staple of criminal trials." Ibid. 

12

 A study published in 2018 reported that, as of that time, within the United 

States, "there are approximately 30 million surveillance cameras shooting about 

4 billion hours of footage each week." Yael Granot, et al., In the Eyes of the 

Law: Perception Versus Reality in Appraisals of Video Evidence, 24 Psych., 

Pub. Pol'y & L. 93, 94 (2018). The frequency has surely grown since that article 

was published. 
22 A-0377-20

The probative value of such surveillance footage can be enormous. As 

our Supreme Court has recognized, "[t]he power of a video of 

contemporaneously recorded events at the crime scene can hardly be disputed." 

State v. Garcia, 245 N.J. 412, 431 (2021). "[A] video recording is a valuable 

tool[,]" and can "enhance[] a judge or juror's assessment of credibility by 

providing a more complete picture of what occurred." State v. Cole, 229 N.J. 

430, 450-51 (2017) (internal citations omitted); see also Garcia, 245 N.J. at 431-

32 (quoting that same observation).

The Court recently recognized that potential evidential value in State v. 

Watson, which involved a fifty-seven-second surveillance video that showed an 

entire robbery committed inside the bank. 254 N.J. 558, 570 (2023). Among 

other things, the video in Watson was highly relevant to the core disputed issue 

of identification, i.e., whether defendant was the person shown on the video 

demanding money from the teller, and whether the robber's fingers touched areas 

where fingerprints could have been left but were not found. Ibid. 

Our New Jersey courts have not yet addressed in a published opinion the 

standards for presenting to trial jurors surveillance video footage in slow motion, 

assuming it satisfies the applicable requirements for authenticity, relevance, and 

other Rules of Evidence. In particular, we have no precedents specifically 

addressing the issues raised here concerning the playback of surveillance videos 
23 A-0377-20

in slow motion and in other altered modes to jurors at their request during 

deliberations. 

 Lacking precedential guidance on these discrete issues, the trial court and 

counsel consulted our somewhat analogous case law regulating the playback 

during deliberations of video-recorded or audio-recorded trial testimony. Under 

that case law, a court's decision to replay a recording of trial testimony for 

deliberating jurors is vested in the discretion of the trial judge. State v. A.R., 

213 N.J. 542, 559 (2013). "Absent 'some unusual circumstance,' those requests 

should be granted." State v. Miller, 205 N.J. 109, 119-20 (2011) (referring to 

the playback of trial testimony) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). 

"Generally, once an exhibit has been admitted into evidence, the jury may 

access it during deliberations, subject to the court's instructions on its proper 

use." State v. Burr, 195 N.J. 119, 133-34 (2008) (citing R. 1:8–8). Indeed, 

"[v]ideo playbacks of witness testimony during deliberations at the jury's 

request are commonplace." State v. Muhammad, 359 N.J. Super. 361, 380 (App. 

Div. 2003).

In Miller, 205 N.J. at 122, the Court provided guidelines for ruling on a 

jury's request to replay testimony. In doing so, the Court emphasized that 

"judges should ordinarily grant a jury's request to play back testimony." Ibid. 

(citing State v. Wilkerson, 60 N.J. 452, 460 (1972)). The Court's guidelines 
24 A-0377-20

emphasized replaying recorded evidence in a manner that accurately responds 

to the jury's request, although it also noted that trial courts "retain discretionary 

authority to try to narrow a jury's request" if too "extensive." Id. at 122-23. 

Our case law has addressed the dangers of allowing a jury to review 

playbacks of previous testimony during their deliberations, and what steps 

courts can take to safeguard against these dangers. See, e.g., A.R., 213 N.J. at 

547, 559-60; Miller, 205 N.J. at 122; Burr, 195 N.J. at 135. Those dangers 

include, among other things, the prejudicial repetition of the recorded footage 

and its potential capacity to overshadow other evidence in the case. A.R., 213 

N.J. at 555. As the Court cautioned in A.R., in a context involving the video 

replays of a sexual assault victim's interview and video of a defendant's police 

interrogation recorded before trial: 

Although the video recording of a defendant's statement 

or a victim's statement is admissible evidence, 

playbacks of such testimony have the capacity to permit 

a jury to place undue emphasis on a single item of 

evidence. An audio recording permits the jury to hear 

every inflection, every hesitation, and every 

equivocation in the voice of the witness. A video 

recording magnifies the effect of a playback of 

testimony. Repeated jury review of a video recorded 

statement is tantamount to a second, third, or even

fourth appearance of the same witness at trial. 

[213 N.J. at 546 (emphasis added).]
25 A-0377-20

 In light of these concerns, the Court has imposed constraints on 

testimonial video playbacks. As the Court held in Burr, 195 N.J. at 119, and 

reiterated in Miller, 205 N.J. at 109, and again in A.R., "a video-recorded 

statement must be replayed in open court under the direct supervision of the 

judge." 213 N.J. at 546-47. The trial court retains the "ultimate discretion" to 

deny such playback requests. Id. at 555 (quoting Burr, 195 N.J. at 135). 

 The context presented here is different than in those cases because there 

is no testimonial component to the surveillance video of the crime scene. As is 

frequently the case with outdoor surveillance videos,

13 the recording in this case 

contains no soundtrack. As such, the specific dangers of jurors affording undue 

weight or attention to spoken content of the recordings is not present. 

Even so, we recognize there is a potential for undue prejudice that can 

result from repetitive showings of the videos if they are incriminating. In 

addition, as defendants argue, the slow motion and other modifications of the 

speeds at which surveillance videos are replayed might cause undue prejudice, 

at least in certain contexts. We proceed to explore these issues in the pages that 

follow. 

13

 We do not address in this opinion the boundaries of what may be legally 

permissible audio to record under pertinent statutes and case law. 
26 A-0377-20

1.

The case law of other jurisdictions addressing the slow-motion replays 

have generally authorized the presentation of video evidence in that mode within 

the trial court's discretion, subject to offsetting considerations. For instance, in 

State v. Brewington, 471 S.E.2d 398, 403 (N.C. 1996), the Supreme Court of 

North Carolina ruled that a trial court did not abuse its discretion by allowing a 

criminal jury to watch a surveillance videotape of a homicide in slow motion. 

The Court agreed with the trial court the slow motion playing of the recording 

was relevant to the "critical issue" of the "sequence of events which took place 

at the time of the shooting." Ibid. 

The Pennsylvania Supreme Court similarly held that a trial court did not 

abuse its discretion by allowing surveillance video footage to be played for a 

jury in slow motion. Commonwealth v. Cash, 137 A.3d 1262, 1277 (Pa. 2016). 

The Court reasoned that "playing portions of the video in slow motion enhanced 

the jury's understanding of the events surrounding the murder." Ibid. The video 

did so "by allowing [jurors] to have a better view of Appellant's face, thereby 

establishing Appellant's identity as the perpetrator, and by giving it the 

opportunity to observe that two shots had been fired from Appellant's gun, a 

detail which was not ascertainable when the video was played at normal speed." 

Ibid. 
27 A-0377-20

In that same vein, in Burkhart v. Commonwealth, 125 S.W.3d 848, 850 

(Ky. 2003), a criminal mischief prosecution, the Supreme Court of Kentucky 

found no abuse of discretion in the trial court allowing a slow-motion replay of 

a store's surveillance video under the "controlled conditions of open court." 

Similarly, the Georgia Court of Appeals upheld the re-playing of video footage 

in slow motion as not an abuse of discretion "because the jury showed concern 

about it" during their deliberations. Brown v. State, 411 S.E.2d 366, 367 (Ga. 

App. 1991). See also United States v. Plato, 629 F.3d 646, 652 (7th Cir. 2010) 

(upholding the district court's exercise of discretion in allowing a surveillance 

video of a drug sale to be replayed for a jury in slow motion). Defendants have 

presented no contrary out-of-state published opinions holding that trial courts

lack such discretion. 

2.

Defendants cite to research indicating that the slow-motion presentation 

of video evidence can have the capacity to increase observers' perceptions that 

the conduct of the persons shown on the videos was intentional or flagrant.14 

14

 Eugene M. Caruso et al., Slow Motion Increases Perceived Intent, 113 

Proceedings of the Nat'l Acad. of Scis. 9250 (2016). This study has been the 

subject of several other articles, which have been furnished to us on appeal by 

defense counsel. See Homa Khaleeli, How Slow-Motion Video Footage 

Misleads Juries, Guardian, Aug. 2016; Bob Yirka, Showing People Slow Motion 

Video of Crime Found to Distort Perceived Intent, MedicalXpress, Aug. 2016. 
28 A-0377-20

The main article cited by defendants in this regard ("the Caruso study"), 

involved several experiments that included research participants watching video 

footage from a murder case and violent contact occurring in broadcast replays 

of professional football games. Id. at 9251. The Caruso study concluded that 

playing videos in slow motion, as compared to normal speed, "can cause viewers 

to perceive an action as more intentional." Id. at 9250. According to the study's 

authors, this so-called "slow motion intentionality bias" may be attributed to the 

slow motion causing the research participants "to feel like the actor had more 

time to act, even when they knew how much clock time had actually elapsed." 

Ibid. Additional experiments in the Caruso study revealed that "allowing 

viewers to see both regular speed and slow-motion replay mitigates the 

[intentionality] bias, but does not eliminate it." Ibid. 

Although we appreciate counsel's citation to the Caruso study and other 

similar literature, and we concur with the trial judge's reaction that it does not 

appear to be per se unreliable, the context in which the surveillance video 

footage was replayed in this case—particularly the six-second segment showing 

the four men quickly walking by the back of Poppie's—assisted the jurors in 

resolving critical disputed issues of identification. The video shows the physical 

appearances of the four men, their sizes, their features, and their clothing. The 
29 A-0377-20

video also shows where each of three alleged culprits were walking in relation 

to the victim, and what they individually were doing at that time. 

The context here is distinguishable from the two experiments that were 

the subject of the Caruso study because it involves identifying multiple actors 

and their respective actions. The Caruso study focused on video footage of: (1) 

a single defendant robbing and shooting a store clerk, and (2) a single football 

player making disallowed helmet-to-helmet contact with an opposing player. In 

such contexts, concerns about a slow-motion presentation of the video 

exaggerating the intentionality of the single actor are likely to be greater. For 

the single-robber example, a central question for the jury was whether the 

defendant intended to kill the victim. For the football example, a central 

question for the referees was whether the sole defender intended to strike the 

runner's helmet with his own. Intentionality in both examples was at the heart 

of the matter. 

By contrast, it was crucial for this jury to sort out: (1) who were the three 

men walking with Osbourne behind the deli; and (2) what each person was doing 

during that segment. The jury had to identify the actors and ascertain what each 

of them individually appeared to be doing. To be sure, the video was also 

evidential of the actors' displayed apparent intent to rob Osbourne. But that was 
30 A-0377-20

not as vital as identifying who they were and their respective actions in the 

footage. 

Shaquan argues in his brief that the video was potentially influential in 

affecting how the jury evaluated his degree of involvement in the events at the 

scene, assuming they found he was one of the men walking in the group. 

According to the State's interpretation of the video, Shaquan was the last man in 

the group, and he was not holding the gun pointed at Osbourne or wielding a 

knife. Shaquan asserts in his brief that "it was clear the jury was attempting to 

understand what had really happened behind Poppies." He asserts that "[t]he 

replay of the video showed that the jury was seriously assessing the role [he] 

played in the robbery." The video segment "would have been crucial to 

determining whether Shaquan's theory of the case created reasonable doubt that 

he was involved in the robbery." The video therefore "went to the question of 

guilt itself, and [the jury] viewing it so many times in slow motion was highly 

prejudicial." 

3.

We are unpersuaded that the trial court misapplied its discretion in 

granting the deliberating jurors' requests to replay the surveillance video in slow 

motion and multiple times, with starts and stops. As neither defendant disputes, 

the video was relevant. Because it showed the perpetrators' physical 
31 A-0377-20

appearances, the video evidence would have been helpful in deciding whether 

defendants resembled the men who took part in the robbery, and whether 

Osbourne's identification of them and his descriptions of their actions were

credible. The slow motion and repeated presentation of the video footage—

notably at the request of the deliberating jurors—would have aided the jurors in 

discerning the appearances of the men who quickly walked by during the key 

six-second segment. In the circumstances presented, the replays of the video 

were within the trial court's discretion.15

We are likewise unpersuaded by Shaquan's contention that the slowmotion replaying of the video was highly prejudicial to him because "it showed 

that the jury was seriously assessing the role [he] played in the robbery." The 

objective of a trial is just that: to have the factfinder "seriously assess" the 

evidence and assess the conduct of the parties. The video segment was not 

necessarily at odds with Shaquan's contentions that he was not a central 

15 We are mindful that a civil case involving an automobile accident, we found 

that a plaintiff was unduly prejudiced when the defendant introduced a video 

simulation of an accident and played it in "extreme slow motion." Suanez v. 

Egeland, 330 N.J. Super. 190, 193-95 (App. Div. 2000). Among the other issues 

with the video, we reasoned that viewing the video simulation in such "extreme 

slow motion" may have affected the jury's perception of the accident. Suanez is 

distinguishable from the present case for at least two reasons: (1) the video was 

a simulation created for the adversarial process by an expert and not, as here, 

real evidence of the actual events; and (2) the case did not involve, as here, a 

request by deliberating jurors to review a video in slow motion. 
32 A-0377-20

participant in a robbery. The video depicts a fourth man, purported to be 

Shaquan, walking behind the other two culprits and Osbourne. Unlike them, he 

does not appear to be wielding a gun or pushing Osbourne. We recognize the 

State argued in summation that in the video Shaquan did not appear to be scared 

or surprised, a point the defense has not refuted. Nonetheless, to the extent the 

video had probative value of "intentionality" beyond its bearing upon 

identification, we conclude it was not unduly prejudicial to Shaquan's interests. 

The trial court had the discretion to reject or limit the slow-motion replays, 

and we defer to its exercise of discretion. The judge prudently required the 

videos to be replayed under her supervision in the courtroom in the presence of 

counsel, consistent with the case law governing other kinds of video replays. 

By agreement of counsel, the videos were not magnified. The six-second 

segment apparently did not take long to replay, whether it was shown at normal 

speed or slower speeds. In short, the judge rightly endeavored to support the 

jurors in their manifest and conscientious effort to understand the proofs and 

consider them carefully.

We are cognizant that defendants have stressed on appeal the number of 

times the video was played for the jurors was unduly prejudicial. However, we 

note that defendants did not object to the prosecutor replaying the video multiple 

times and in slow motion, with pauses, during closing argument. They only 
33 A-0377-20

raised concerns about the slow-motion presentation when the jury requested 

playbacks. Given the very short, rapid activity in the six-second segment that 

is not easy to follow at normal speed, the replays were reasonably allowed. 

4.

Defendants argue that, even if we find the slow-motion video replays were 

not improper, the court was required to provide the jurors with a special 

cautionary instruction on how to consider such evidence and to not place 

inordinate weight on them. Because defendants both failed to make such a 

request or raise this objection, we consider this issue under a standard of plain 

error. State v. Wakefield, 190 N.J. 397, 473 (2007) (citing R. 1:7-2; R. 2:10-2). 

In determining whether a trial court's decision or omission constitutes plain 

error, the reviewing court must determine: "(1) whether there was error; and (2) 

whether that error was 'clearly capable of producing an unjust result,' . . . that is 

whether there is 'a reasonable doubt . . . as to whether the error led the jury to a 

result it otherwise might not have reached[.]'" State v. Dunbrack, 245 N.J. 531, 

544 (2021) (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)). 

Here, no present case law or model charge specifies jury instructions for 

the playback of non-testimonial video evidence. In Miller, the Court remarked 

that "[j]udges should take precautions to prevent juries from placing undue 

emphasis on the particular testimony that is replayed" during deliberations. 205 
34 A-0377-20

N.J. at 123 (emphasis added). "[A]t the time the testimony is repeated, judges 

should instruct jurors to consider all of the evidence presented and not give 

undue weight to the testimony played back." Ibid. (emphasis added). This 

holding is reflected in the Model Jury Charges (Criminal), "Playback of 

Testimony" (approved Apr. 16, 2012). This rule refers to the playback of 

witness testimony. There is no similar existing instruction for playback of other 

forms of video evidence. 

As the Miller Court noted, "[a]lthough the trial judge did not give a 

specific instruction regarding the replayed testimony—as judges should do in 

the future—the jury charge he delivered the day before directed jurors to 

consider all of the evidence submitted." 205 N.J. at 126. Similarly, here the 

trial court generally instructed the jury to consider all the evidence during its 

general jury charge. Thus, even if the trial court was required to give the jury a 

separate instruction prior to playing surveillance videos during deliberation, the 

general jury charge offset any alleged error from the omission. No plain error 

occurred. 

5.

That said, going forward it will be beneficial to trial judges and counsel 

to have guidance in dealing with the admission of surveillance videos and with 

requests by deliberating juries to replay surveillance video evidence, and to do 
35 A-0377-20

so at modified speeds or with intermittent pauses. To assist the bench and bar, 

we prospectively offer the following non-exclusive factors for consideration: 

• Subject to offsetting considerations of undue prejudice 

or other factors warranting exclusion under N.J.R.E. 

403, relevant surveillance video evidence may be 

presented during a trial or closing argument to jurors in 

slow motion or at other varying speeds, or with 

intermittent pauses, if the trial court reasonably finds 

those modes of presentation would assist the jurors' 

understanding of the pertinent events and help them

resolve disputed factual issues. 

• Subject to offsetting considerations of undue prejudice, 

trial courts have the discretion to grant a jury's requests 

during deliberations to replay surveillance videos in 

such modes one or more times, provided that the 

playbacks occur in open court under the judge's 

supervision and in the presence of counsel. 

• In exercising their discretion in admitting into evidence 

or allowing the replay of surveillance video recordings, 

trial courts should consider, among other things, (a) 

whether the video has a soundtrack that contains 

recorded statements of the filmed persons; (b) whether 

the video is difficult to discern when played only at 

normal speed; (c) whether the video can assist in 

resolving disputed issues of identification; (d) whether 

the video bears upon disputed issues of intentionality; 

(e) whether the video contains content that is 

particularly disturbing or inflammatory to watch 

repeatedly in slow motion. 

Apart from these non-exclusive factors, we recommend to the Model 

Criminal Jury Charge Committee that it consider creating a model charge that 

specifically addresses situations in which, as here, a jury requests the replaying 
36 A-0377-20

of surveillance video evidence, and to caution jurors to afford such evidence 

only appropriate and not undue weight in comparison with the other evidence at 

trial.16 Such a model charge might also usefully draw to the jurors' attention the 

possibility that viewing such video evidence in slow motion might 

subconsciously increase their perceptions of an actor's intentionality.17 The 

content and contours of charge, if one is adopted, are best developed by the 

Committee, with the benefit of additional study and the consideration of 

practices in other jurisdictions. 

Having set forth these prospective principles, we affirm the trial court's 

rulings and its handling of the jury's requests concerning the slow-motion 

surveillance video replays in this case. 

IV.

We turn in this unpublished portion of the opinion to the remaining nonsentencing issues raised by one or both defendants. As we will discuss, none of 

them warrant reversal.

16

 Of course, there are situations in which the jury rationally determines the 

video evidence is the most important proof in the case and that it refutes or 

substantiates the recollections of the testifying witnesses. 

17 Depending on the fact pattern, the actor whose apparent intention might be 

interpreted from the video footage could be someone other the defendant, such 

as the alleged aggressor in a case involving a claim of self-defense. 
37 A-0377-20

A.

 Defendants argue the trial court erred in admitting at trial Osbourne's 

earlier testimony from the Wade hearing. We are satisfied the trial court did not 

misapply its discretion on this evidentiary ruling. A court's evidentiary rulings 

are reviewed under a deferential standard and generally will be upheld absent a 

showing of an abuse of discretion. State v. Sims, 250 N.J. 189, 218 (2022). The 

admission of Osbourne's pretrial testimony was clearly authorized under the 

former testimony exception to the hearsay rules, N.J.R.E. 804(b)(1)(A). The 

trial court reasonably determined that Osbourne's death made him an unavailable 

witness and that defendants had an opportunity and similar motive to crossexamine him at the Wade hearing. 

Although the trial court initially imposed some limits on defense counsel's 

cross examination of Osbourne at the Wade hearing, counsel managed to delve 

into a considerable breadth of subject matters beyond his identifications of the 

robbers. We are unpersuaded that defense counsel were deprived of a fair 

opportunity to cross-examine Osbourne to undermine his credibility, or that 

counsel's motives in impeaching him at the hearing were dissimilar to what they 

would have been if he had taken the witness stand at trial. 

The opportunity for cross-examination negates defendants' parallel 

arguments under the Confrontation Clause. As the United States Supreme Court 
38 A-0377-20

underscored in Delaware v. Fensterer, "the Confrontation Clause guarantees an 

opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish." 474 

U.S. 15, 20 (1985); see also Sims, 250 N.J. at 223 (quoting the same passage). 

We concur with the trial court in rejecting defendants' arguments that they 

learned additional information after the Wade hearing that would have 

materially affected their cross-examination of Osbourne. The State's posthearing turnover to the defense of the police officers' body camera footage, and 

the lack of notes from their questioning of Osbourne at the deli, did not render 

his hearing testimony inadmissible. At trial, defendants cross-examined the 

officers who had questioned Osbourne. The defense also questioned Osbourne 

at the Wade hearing, albeit more generally, about his conversations with other 

officers at Poppie's. 

Defense counsel also had the opportunity at the Wade hearing to crossexamine Osbourne about the Poppie's surveillance video and his purchasing 

drugs from Shaquan. This line of inquiry also provided the defense with useful 

grounds to impeach Osbourne at trial. 

In sum, the trial court acted within its discretion and in accordance with 

the Confrontation Clause in admitting Osbourne's former testimony at trial. 

B.
39 A-0377-20

 As another evidentiary point, defendants contend the trial court erred in 

admitting into evidence a recording of the 9-1-1 call that Osbourne made to the 

police about three minutes after the robbery. The trial court properly deemed 

the call to be an admissible excited utterance under N.J.R.E. 803(c)(2), which 

allows a hearsay statement to be admitted if it "relat[es] to a startling event or 

condition made while the declarant was under the stress of excitement caused 

by the event or condition and without opportunity to deliberate or fabricate." 

These elements are manifestly present here. Osbourne placed the call only a 

few minutes after the very startling event of the robbery, in which he was 

threatened with what seemed to be one or more deadly weapons. Under the 

circumstances, he did not have sufficient time to deliberate or to conjure a false 

narrative. 

We also discern no violation of the Confrontation Clause in the admission 

of the 9-1-1 recording. The call was not "testimonial," as that pivotal concept 

has been construed in Crawford v. Washington, 541 U.S. 36, 54-55 (2004), and 

its progeny. Osbourne's call for help was made to address an ongoing emergency 

in the wake of a fresh robbery by culprits who ran away. The context fits the 

"emergency doctrine" of Confrontation Clause jurisprudence, as explicated by 

the Supreme Court in Davis v. Washington, 547 U.S. 813, 822 (2006), and 

Michigan v. Bryant, 562 U.S. 344, 357-71 (2011). 
40 A-0377-20

C.

Although he is not joined by Fuquan on this argument, Shaquan contends 

the court's jury instruction on identification was deficient because it did not 

address three points: (1) the use of "fillers," meaning showing a witness a lineup 

that includes at least five other individuals, in addition to the suspect; (2) the 

use of a blind administrator, meaning using an officer to administer the 

identification who is both unfamiliar with the case and the suspect, so as not to 

subconsciously influence the witness's selection; and (3) the use of a "showup," 

in which the witness is shown only one suspect to identify. In addition, the trial 

court took judicial notice that there were no Attorney General Guidelines about 

"one-on-one" identification procedures which, Shaquan argues, compounded the 

erroneous lack of instruction. 

We conclude that, under present standards, the trial court did not err in its 

jury charge on identification, and even if there was error, it was harmless and 

does not support reversal. 

At the Wade hearing, the trial court ruled that Osbourne's out-of-court 

identifications of Shaquan and Fuquan, which were provided through one-onone identification procedures, were admissible because Osbourne testified that 

he was familiar with defendants, and the Poppie's surveillance video reflected 

that familiarity as well. Osbourne had expressed familiarity with Shaquan and 
41 A-0377-20

Fuquan, and identified them from the surveillance videos, but did not remember 

their names. Detective Lantigua also recognized Shaquan and Fuquan, and thus 

collected their photographs and presented them to Osbourne, as a one-on-one 

photo array. Because Osbourne did not know Kyler, Kyler's identification 

procedure consisted of a six-photograph array using a blind administrator, which 

according to Lantigua, was consistent with the Attorney General Guidelines on 

photographic arrays. Osbourne identified Kyler's photograph from this array. 

 Shaquan's attorney attempted to cross-examine Lantigua on whether the 

one-on-one array also complied with the Attorney General Guidelines. The 

State objected, and during a sidebar, requested judicial notice that one-on-one 

photo arrays "are not considered identifications and that's why they're not 

covered by the Attorney General Guidelines because its [sic] separate and apart 

from it." The court agreed, stating that the Attorney General Guidelines were 

drafted in response to case law for situations where the witness was not familiar 

with the suspect. Shaquan's attorney agreed with the court but said it was 

nevertheless appropriate for him to question Lantigua about his use of a one-onone identification. The State requested some sort of "curative instruction" in 

response to defense counsel's questioning. To address this point, the court took 

judicial notice that "there is no Attorney General Guideline that exists pertaining 
42 A-0377-20

to . . . the necessity or use of array of photos when the victim has a familiarity 

with the suspect." 

Later on, when discussing the jury charge, the State agreed that the jury 

instructions should include general language about double-blind administrators, 

line-up composition, and fillers since they related to Osbourne's identification 

of Kyler's photograph. However, the parties disputed whether a certain 

instruction should be included. See Model Jury Charges (Criminal), 

"Identification: Out-of-Court Identification," at 7-8 (rev. May 18, 2020).

The parties' dispute apparently centered on instructions for when a blind 

administrator is not used. The court agreed with the State that this language was 

not necessary because the use of blind administrators pertained to lineups, not 

the single photo array shown to Osbourne. 

During its jury charge, the court generally, but not precisely, followed the 

Model Jury Charges, providing instruction on identification evidence, including 

whether the identification occurred by way of a lineup, the composition of the 

lineup, the number of photographs presented, whether the lineup involved a 

double-blind administrator, and whether the administrator instructed the witness 

that the suspect may not be part of the array. The court also reminded the jury 

that it had taken judicial notice that no Attorney General Guideline requires a 

photographic array when the witness is familiar with the suspect. The court did 
43 A-0377-20

not provide any instruction on showups, and excluded the language about when 

a blind administrator is not used. Id. at 7-8.

Shaquan's arguments are without merit. The court's instruction did in fact 

include a general instruction about the use of fillers and blind administrators. 

Shaquan is correct that the court did strike the portion of the Model Jury Charges 

(Criminal), "Identification: Out-of-Court Identification," at 7-8, labeled as 

"CHARGE IF BLIND ADMINISTRATOR IS NOT USED." However, this 

exclusion was proper, as a blind administrator is not required for a one-on-one 

identification. See State v. Henderson, 208 N.J. 208, 259 (2011) ("By their 

nature, showups are suggestive and cannot be performed blind or doubleblind."). Thus, Shaquan's arguments on these points are without merit. 

The court did not instruct the jury about the police use of a showup. Such 

an instruction was unnecessary here given the kind of identification involved. 

"Showups are essentially single-person lineups: a single suspect is 

presented to a witness to make an identification." Henderson, 208 N.J. at 259. 

They often take place "at the scene of a crime soon after its commission." Ibid. 

A showup can be "inherently suggestive." Watson, 254 N.J. at 579 (quoting 

State v. Herrera, 187 N.J. 493, 504 (2006)). This is because showups "fail to 

provide a safeguard against witnesses with poor memories or those inclined to 

guess, because every mistaken identification in a showup will point to the 
44 A-0377-20

suspect." Henderson, 208 N.J. at 260. Nevertheless, showup procedures are 

still permissible and supported because: (1) "[t]hey are likely to be accurate, 

taking place, as they do, before memory has faded"; (2) "[t]hey facilitate and 

enhance fast and effective police action; and (3) they tend to avoid or minimize 

inconvenience and embarrassment on the innocent." State v. Wilson, 362 N.J. 

Super. 319, 327 (2003) (quoting Wilkerson, 60 N.J. at 461). 

A showup in which the witness is familiar with the suspect, however, may 

not involve the same danger of suggestion. See, e.g., Herrera, 187 N.J. at 496-

97, 507 (in which a victim of an assault and carjacking identified the defendant 

through a showup at a hospital emergency room, but the Court held the victim's 

identification was nonetheless reliable because the victim told the police that he 

"had observed defendant in the area almost daily, but did not know defendant's 

name"). 

 Similarly, confirmatory identifications generally are not viewed as unduly 

suggestive. State v. Pressley, 232 N.J. 587, 592 (2018). A confirmatory 

identification takes place "when a witness identifies someone he or she knows 

from before but cannot identify by name." Id. at 592-93 (citing National 

Research Council, Identifying the Culprit: Assessing Eyewitness Identification 

28 (2014)). This can include a neighbor or "someone known only by a street 

name." Id. at 593. 
45 A-0377-20

 Here, neither party nor the court referred to Osbourne's identification as a 

"confirmatory identification." However, this characterization is implicit from 

the court's ruling that the use of a one-on-one identification was appropriate, 

given Osbourne's familiarity with Shaquan and Fuquan. Moreover, on appeal, 

Shaquan does not dispute that this was a confirmatory identification; rather he 

argues that the procedure was improper "even if" it was a confirmatory 

identification. Consequently, in framing its jury instruction, the court did not 

err in implicitly characterizing this as a confirmatory identification, which 

permits a one-on-one identification. 

The Model Jury Charges on showups do not clearly apply to such 

confirmatory identifications. Model Jury Charges (Criminal), "Identification: 

Out-of-Court Identification," at 6. The jury charge was not on point here, 

because Osbourne's identification of Shaquan was more akin to a confirmatory 

identification than to a showup. The trial court's omission of the model 

instruction on showups did not comprise plain error. R. 2:10-2.

Moreover, any error was harmless because the jury instruction the court 

provided conceptually addressed concerns of suggestibility. The trial court 

instructed the jury to: carefully scrutinize the evidence; consider the victim's 

confidence and accuracy; assess the suggestiveness of the procedure (including 

use of fillers and a double-blind administrator); consider the adequacy of pre-
46 A-0377-20

identification instructions to the witness; and weigh any other factor the jury 

viewed as relevant. The only relevant language not included was that specific 

to showups, but the language on the suggestiveness of the procedure noted that 

concern as well. 

 Finally, contrary to Shaquan's contention, the court did not err in 

instructing the jury that the Attorney General Guidelines outlining identification 

procedures do not apply to one-on-one confirmatory identifications. See Bayer 

v. Twp. of Union, 414 N.J. Super. 238, 265 (App. Div. 2010) (noting that 

although "the guidelines apply to both photographic and live lineups, they do 

not specifically address showups"). Indisputably, the Guidelines make no 

reference to showups or one-on-one identifications. Attorney General 

Guidelines for Preparing and Conducting Out-of-Court Eyewitness 

Identifications (Feb. 9, 2021). Hence, the trial judge's understanding was 

correct, and this issue provides no basis for reversal. Although it may have been 

superfluous for the court to advise the jury about what the Guidelines do not 

contain, we discern no harmful error stemming from that disclosure. 

D.

 Defendants argue the trial court erred in not taking what they now 

characterize as a "partial verdict" from the jury after it submitted a note in the 

afternoon of its final day of deliberations. The pertinent sequence of events 
47 A-0377-20

shows that the court did not abuse its discretion in the manner it proceeded after 

receiving that note. 

The court mentioned the time frame for trial at several points during the 

proceeding. First, during jury selection, the court apprised prospective jurors 

about its anticipated completion date, stating that if the case were completed by 

November 21, 2019, deliberations likely would commence on November 22, 

2019. However, one potential juror asked the court if deliberations would be 

completed by December 6, and the court responded "Yes." Second, after trial 

commenced, the court had to cancel a trial date, and notified the jury that they 

would come back after Thanksgiving, on December 3, 2019. A juror then asked 

the court, "But we're still good for December 6th?" and the court responded 

"Yes." 

Deliberations began on December 5, 2019. Later that day, Juror Number 

Fourteen notified the court that she had a flight for work "tomorrow morning at 

nine a.m." because "[h]er boss thought she was done December 6th." The court 

stated that it had sent a note to the jurors' employers, outlining the length of the 

trial, which included December 6, 2019.18 The court directed Juror Number 

Fourteen to speak to her employer, adding that it would not be able to excuse 

18

 A copy of this note was not submitted with the record on appeal. 
48 A-0377-20

her. After speaking with her employer, the juror stated that her flight actually 

was not until 8:00 p.m. and asked if that was acceptable to the court. The court 

responded, "Perfect." 

On December 6, 2019, the jury continued its deliberations. That 

afternoon, at 3:26 p.m., the court stated on the record that it had received a note 

from the jury at 3:08 p.m. The note read as follows: "We are at a standstill on 

one of the charges. What happens if we cannot come to a decision on that 

charge?" 

The State requested that the court issue a "modified Allen[19] charge," 

noting that although the jury had been deliberating for only "approximately three 

to four hours," "given the circumstances" the charge was appropriate. Fuquan's 

attorney objected, saying that it was a "dynamite charge" which usually works 

against defendants, and given the time—it was close to 4:00 p.m., with Juror 

Number Fourteen taking an 8:00 p.m. flight—the court should accept a verdict 

on counts that were not in standstill. Shaquan's attorney advocated for the court 

to accept a partial verdict, noting that this was "the last day we gave the jurors" 

and it was 3:30 p.m. 

19

 Allen v. United States, 164 U.S. 492 (1896). 
49 A-0377-20

The court called the jury in and informed them that it was premature for 

it to instruct the jury on what to do if it could not reach a decision on a particular 

charge. The court then gave the following instruction: 

It is your duty as jurors to consult with one 

another and to deliberate with a view towards reaching 

a verdict, if you can do so without violence to your 

individual judgment. Each of you must decide the case 

for yourself, but do so only after an impartial 

consideration of the evidence with your fellow jurors. 

In the course of your deliberations, do not hesitate to 

reexamine your own views and change your opinion if

convinced it is erroneous. But do not surrender your 

honest conviction as to the weight or effect of evidence 

solely because of the opinion of your . . . fellow jurors, 

or for the mere purpose of returning a verdict. 

. . . . 

You are not partisans. You are judges; judges of 

the facts. I would ask you to go back in and see if you 

can continue your deliberations and let us know. [20]

After receiving this instruction, the jury left the courtroom at 3:33 p.m. to 

resume its deliberations. The court returned to the record at 4:00 p.m. with a 

note from the jury stating that it had reached a verdict. The verdict was then 

delivered in open court, and the jurors were unanimous on all counts. 

20

 The court initially had informed the jury that they are "partisans," and then 

corrected itself. This excerpt reflects the entirety of the court's instruction, 

omitting the misstatement and a sidebar correcting the same. 
50 A-0377-20

Defendants contend the court erred in directing the jury to continue its 

deliberations, and it instead should have taken a partial verdict after receiving 

the jury's note. We are obligated to evaluate this argument with a substantial 

degree of deference to the trial court. 

A trial judge's decision in handling jury issues is generally reviewed for 

abuse of discretion. State v. R.D., 169 N.J. 551, 559-60 (2001). This includes 

the question of whether supplemental charges should be given to a deadlocked 

jury. State v. Figueroa, 190 N.J. 219, 234-35 (2007). 

In cases involving multiple counts of an indictment or multiple defendants 

tried together, a trial court may accept a partial verdict "specifying the counts 

on which [the jury] has agreed." R. 3:19-1(a). While the "routine use of partial 

verdicts" is discouraged, trial courts nonetheless "possess the discretion to 

accept such verdicts absent a showing of prejudice to the defendant." State v. 

Shomo, 129 N.J. 248, 257 (1992). Partial verdicts may be appropriate 

when the jury has deliberated at length, when the 

charges against a defendant are rooted in unrelated

facts, when the court has reason to be concerned that a 

juror may become ill before deliberations conclude,

when there is risk of taint to the jury's decision-making 

process, or when the State has indicated its intention to 

dismiss the unresolved counts. 

[Id. at 257-58.] 
51 A-0377-20

Having considered this discretionary option of a partial verdict and the 

sequence of events, we conclude the court did not abuse its discretion in 

allowing the jury more time to deliberate. First, the jury had been deliberating 

for, at most, a day-and-a-half, a period of time that is not so extensive that it 

mandates cessation of deliberations. See Figueroa, 190 N.J. at 239-40 (while 

the court's instruction was faulty, finding no error in the court's decision to direct 

the jury to continue deliberating, where the jury had been deliberating for a day 

at most). The deliberations had not yet been "at length," as set forth under the 

partial verdict rule. 

Second, although the jury said it was at a "standstill" on one count, it did 

not say that it would be unable to reach a verdict; rather, it inquired 

hypothetically what would happen if they could not reach a verdict on that count. 

Such a situation, where the jury poses an "ambiguous question that suggested 

but did not announce a deadlock," can appropriately result in a supplemental 

charge from the court directing continued deliberations. Figueroa, 190 N.J. at 

239 (finding that the jury's note, stating that it could not "unanimously agree on 

the verdict," was "relatively benign" and did not constitute an unambiguous 

pronouncement of a deadlock). 

Third, because it was only the jury's first note on this point, the court had 

the prerogative to instruct the jury to continue deliberations. Ibid.; see, e.g., 
52 A-0377-20

State v. Czachor, 82 N.J. 392, 407 (1980) (discussing circumstances when repeat 

instructions would be inappropriate). 

We are mindful the trial court seemingly had conveyed a time limit on the 

case, including in the note to the jurors' employers, identifying December 6, 

2019, as the last anticipated trial date. Notwithstanding this, there are 

insufficient grounds to speculate that this projected endpoint unduly influenced 

the jury. It is unclear whether the other jurors knew about Juror Number 

Fourteen's flight on the evening of December 6, as that conversation with the 

judge happened outside the presence of the entire jury. The transcript also does 

not reflect that the juror expressed to the court that she felt coerced or pressured 

because of the timing. In addition, the court made no mention of the time frame 

when instructing the jury. 

Given our limited scope of review, we conclude the trial court did not 

abuse its discretion in directing the jury to continue deliberations after receiving 

its note. There was no obligation to take a partial verdict. 

E.

 None of the other points or sub-points argued by either defendant to set 

aside his conviction, including the claim of cumulative error, have sufficient 

merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). 

V.
53 A-0377-20

Defendants each argue their sentence was excessive. As we noted above, 

the court imposed an aggregate sixteen-year NERA sentence on Fuquan, and an 

eleven-year NERA sentence on Shaquan. By comparison, their father, Kyler, 

who pled guilty to two of the four charges against him, accepted a plea 

agreement that resulted in him receiving a shorter sentence of six years. 

The court noted that Fuquan had two "prior indictable adjudications," one 

juvenile adjudication, and fourteen adult arrests. It found mitigating factor 

thirteen (youthful defendant's influence by a more mature individual), N.J.S.A. 

2C:44(b)(13), noting Kyler's involvement and stating that "it is certainly very 

difficult to go against your parent's wishes." The court rejected the application 

of mitigating factor eleven (excessive hardship), N.J.S.A. 2C:44(b)(11), which 

defendant argued applied because he had a two-year-old daughter, and any 

prolonged incarceration would result in his missing the entirety of her 

childhood. Acknowledging this fact, the court found that Fuquan's situation was 

"no different than any other person that unfortunately has chosen . . . to violate 

the law." Citing Fuquan's criminal history, the court found aggravating factor 

three (risk of reoffending), N.J.S.A. 2C:44(a)(3), and aggravating factor nine 

(deterrence), N.J.S.A. 2C:44(a)(9). 

 The court merged count one (second-degree conspiracy to commit a 

robbery) with count two (first-degree robbery), and imposed on Fuquan a term 
54 A-0377-20

of sixteen years, subject to NERA with eighty-five percent parole ineligibility. 

The court disagreed that count three (third-degree unlawful possession of a 

weapon) merged with the other two counts, and sentenced defendant to five 

years with forty-two months parole ineligibility, pursuant to the Graves Act, 

N.J.S.A. 2C:43-6(c), to run concurrent with count two of the indictment. The 

court then merged count four (second-degree unlawful possession of a weapon) 

with count two. 

On appeal, Fuquan argues that his sentence was excessive, citing the 

disparity between the plea offer the State extended to him and the sentence, the 

adverse influence of Kyler, and the disparity between his sentence and 

Shaquan's. 

Shaquan, meanwhile, contends his own sentence was unfairly affected by 

the plea negotiations, in which his ability to accept a plea offer was contingent 

on his older brother agreeing to plead guilty as well. The relevant chronology 

is as follows. 

In October 2019, before deciding the Wade issue, the court inquired 

whether the parties had reached a plea agreement. Shaquan's attorney responded 

that he had a "contingent offer"—meaning his ability to accept the offer was 

contingent upon Fuquan's accepting his offer as well—and thus could not "do 

anything." Fuquan rejected the plea offer. 
55 A-0377-20

After ruling on the Wade hearing, the court noted the current plea offer 

from the State was eleven years for Fuquan and seven years for Shaquan. 

Shaquan's attorney again noted that this offer was "contingent." The court said 

the parties had until the end of day to decide, and there was no further discussion 

of this on the record. 

At sentencing in 2020, the court first noted that Shaquan had one prior 

indictable offense, four prior disorderly persons convictions, eleven adult 

arrests, and six juvenile adjudications. Shaquan argued for a downward 

departure, imposing a sentence for a second-degree crime instead of a firstdegree crime, citing his age and his role in the robbery. The court denied this 

application, because the mitigating factors did not "drastically outweigh" the 

aggravating factors. 

In making this assessment, the court found mitigating factor thirteen 

(youthful defendant's influence by a more mature individual), N.J.S.A. 

2C:44(b)(13), citing Shaquan's age at the time of arrest (he was nineteen years 

old) and Kyler's "undue influence on his children." However, the court rejected 

the application of all other mitigating factors argued by Shaquan. Specifically, 

it rejected mitigating factor seven (prior criminal history), N.J.S.A. 2C:44(b)(7), 

and mitigating factor eight (circumstances unlikely to reoccur), N.J.S.A. 

2C:44(b)(8), citing Shaquan's history. While the court acknowledged that 
56 A-0377-20

Shaquan was nineteen years old at the time of the robbery, and that his "frontal 

lobe" was still developing and could result in changed behavior in the future, 

the court viewed this as unlikely, given his past history demonstrating a 

"continuous pattern" of criminal behavior.21 The court also rejected the 

application of mitigating factor nine (likelihood of reoffending), N.J.S.A. 

2C:44(b)(9), finding there was nothing to support this conclusion. It similarly 

rejected mitigating factor ten (possibility of successful probation), N.J.S.A. 

2C:44(b)(10), noting that Shaquan had violated probation as a juvenile. Next, 

citing Shaquan's criminal history, the court found aggravating factor three (risk 

of reoffending), N.J.S.A. 2C:44(a)(3), and aggravating factor nine (deterrence), 

N.J.S.A. 2C:44(a)(9). 

 Prior to sentencing Shaquan, the court merged count one (second-degree 

conspiracy to commit robbery) with count two (first-degree robbery). As we 

have already noted, the court sentenced him to eleven years' incarceration, 

subject to a NERA eighty-five percent parole-bar. 

21

 The court's analysis on this point is similar to the recently added statutory 

mitigating factor fourteen, whether the defendant was under the age of twentysix at the time of the offense. N.J.S.A. 2C:44-1(b)(14). However, this factor 

was not in effect at the time of Shaquan's sentencing. L. 2020, c. 110 (eff. Oct. 

19, 2020); see also State v. Lane, 251 N.J. 84 (2022) (rejecting a defendant's 

claim the statute is retroactive). 
57 A-0377-20

 Considering defendants' sentences in tandem, we recognize that on appeal 

we generally afford trial courts considerable deference and discretion in 

calibrating sentences. State v. Roth, 95 N.J. 334, 365-66 (1984). "[A]ppellate 

courts are cautioned not to substitute their judgment for those of our sentencing 

courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 

594 (2013)). 

 That said, we are persuaded that it is appropriate to remand these matters, 

solely for resentencing, for several reasons. First, it is uncertain from the record 

if the sentencing court took fairly into account the degree of disparity between 

defendants' respective NERA sentences of eighteen and eleven years and the 

six-year sentence imposed on their father—who the videos and other evidence 

show participating with them in the robbery. We are mindful that the father pled 

guilty to lesser charges. Even so, we believe the overall sentences of the 

brothers as compared with their father should be considered more closely on 

remand. 

Additionally, we also remand for the trial court to take more expressly 

into account the difficulty Shaquan apparently faced in being unable to accept 

the State's six-year plea offer unless and until his brother likewise pled guilty. 

To be sure, it is not argued that the State is precluded from making contingent 

plea offers to related co-defendants. Even so, the fairness of Shaquan's receipt 
58 A-0377-20

of a sentence that nearly doubled his exposure under the plea offer he allegedly 

had no ability to accept warrants further scrutiny.

 Lastly, Fuquan argues his sentence is disproportionately longer than that 

of Shaquan, without justification. He argues the disparity is unfair because he 

contends that, despite Shaquan being his younger brother, the latter was more 

culpable in instigating the robbery. Shaquan, meanwhile, contends that Fuquan 

was more culpable. On remand, the trial court should reexamine these 

competing characterizations and reconsider whether the seven-year disparity in 

the two brothers' sentences remains justified. 

Disparity in sentencing between co-defendants "may invalidate an 

otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996) 

(citing State v. Hicks, 54 N.J. 390, 392 (1969)). On one hand, "a sentence of 

one defendant not otherwise excessive is not erroneous merely because a codefendant's sentence is lighter." Hicks, 54 N.J. at 391. Nevertheless, even 

where a "sentence imposed on defendant falls within the statutory limits 

mandated for the offense, 'there is an obvious sense of unfairness in having 

disparate punishments for equally culpable perpetrators.'" Roach, 146 N.J. at 

232 (quoting State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 

1980)). Thus, the question "is whether the disparity is justifiable or 

unjustifiable." Id. at 233. 
59 A-0377-20

 When determining a sentence for similarly situated co-defendants, the 

"sentencing court must exercise a broader discretion to obviate excessive 

disparity." Ibid. The court must: (1) assess whether the co-defendants are 

identical or substantially similar in terms of sentencing criteria; (2) examine the 

basis of the sentences imposed on the first defendant; and (3) consider the 

length, terms, and conditions of the co-defendant's sentence. Ibid. If the 

sentencing court concludes that the defendants are "sufficiently similar," then it 

"must give the sentence imposed on the co-defendant substantive weight when 

sentencing the defendant in order to avoid excessive disparity." Ibid. This 

procedure, the Court said, "will accommodate the basic discretion of a 

sentencing court to impose a just sentence on the individual defendant in 

accordance with the sentencing guidelines while fulfilling the court's 

responsibility to achieve uniform sentencing when that is possible." Id. at 233-

34.

 We remand for resentencing to afford the trial court a fresh opportunity to 

apply these principles to these co-defendant siblings. 

VI. 

 Affirmed as to both convictions, but remanded for resentencing. We do 

not retain jurisdiction.