RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0434-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALD B. WILSON,

Defendant-Appellant.

_________________________

Submitted December 17, 2019 – Decided

Before Judges Yannotti, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 13-05-

0452.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Cody Tyler Mason, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Stephen 

Christopher Sayer, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

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

January 30, 2020
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A-0434-17T4

Defendant Gerald Wilson appeals from his convictions for first-degree 

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count one); second-degree 

child endangerment, N.J.S.A. 2C:24-4(a) (count two); two counts of thirddegree witness tampering, N.J.S.A. 2C:28-5(a)(1) (counts three and four); two 

counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts five and 

six); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count seven); thirddegree criminal restraint, N.J.S.A. 2C:13-2(a) (count eight); and second-degree 

kidnapping, N.J.S.A. 2C:13-1(b) (count nine). We affirm the convictions but

reverse the imposition of the $30 per month Sex Offender Supervision Fund 

(SOSF) penalty, which was improperly assessed. We also remand and direct the 

judge to conduct a hearing on defendant's ability to pay restitution to the Victims 

of Crime Compensation Office (VCCO) and on the penalty for the Sex Crimes 

Victim Treatment Fund (SCVTF), and to amend the judgment of conviction 

(JOC). 

I.

We discern the following facts from the evidence adduced at trial. 

Defendant was married to C.M.1in 2008. C.M. has two daughters from a prior 

relationship, J.P., a minor, and M.P., an older daughter who did not live with the

1

 We use initials to identify C.M. and others involved. See R. 1:38-3(c)(9).
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A-0434-17T4

couple, and a minor son, O.P. After marrying defendant, C.M. and her two 

minor children moved in with defendant. He began sexually abusing J.P. almost 

immediately. C.M. and her children are undocumented immigrants from 

Mexico.

The morning of November 10, 2009, defendant and C.M. left their home 

for work while J.P. and O.P. were still asleep. Approximately twenty minutes 

later, C.M. returned home because she forgot something. Upon her arrival, C.M. 

found defendant standing partially undressed with J.P. on the bed in her 

underwear. C.M. accused defendant of sexually abusing her daughter.

Later that day, J.P. told her mother that defendant had been sexually 

assaulting her for a year and a half and repeatedly forced her to have oral and 

vaginal sex with him. J.P. also reported to her mother that when J.P refused to 

have sex with defendant, he threatened to kill her with a gun, then dragged her 

by the hair into the bedroom and forced her to have sex with him. 

Following their conversation, C.M. and J.P. went home and confronted 

defendant. He grabbed J.P. by the throat and struck her near her eye. Defendant

threatened them not to tell anyone about the incident, while pointing a pistol at 

them, or else he would report them to immigration authorities. He also told 

C.M. that "something will happen" to her children.
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C.M. attempted to call the police but defendant threw her phone to the 

ground. Ultimately, J.P. contacted the police. Initially, C.M. lied to the police 

and told them that her dispute with defendant was over J.P.'s cell phone 

privileges because she feared being deported. At a later time, C.M. told the 

police she caught defendant sexually abusing J.P. After being threatened again 

by defendant, C.M. recanted her story. J.P. similarly refused to undergo a 

gynecological examination related to the alleged abuse and told the doctor she 

fabricated the allegations. Thereafter, defendant sent J.P. on a one-way trip to 

Mexico to live with C.M.'s friends.

At trial, O.P. testified that on another occasion, he observed defendant 

leaving J.P.'s bedroom in his underwear, and defendant warned O.P. that he 

would "send [him] to Mexico" if he told anyone. Thereafter, defendant made 

death threats against O.P.

Evidence was also presented that defendant sexually assaulted M.P. He 

forced M.P. to get in his car, took her to his house, and forced her to have sex 

with him. Defendant showed M.P. a gun and threatened to deport her family if 

she told anyone about the incident. Sometime between April and June 2010, 

defendant went to the bakery where M.P. worked and asked her to come to his 
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house, but she refused. Meanwhile, C.M. left defendant in June 2010, and 

moved her children out of the home.

On June 21, 2010, M.P. exited a laundromat and observed defendant 

following her. She entered a nearby Burger King and asked the cashier to call 

the police. Defendant followed her into the Burger King and requested that she 

go home with him. Before the police arrived, defendant walked away and left 

his car in the parking lot.

State Trooper Brian Stanker responded and observed M.P. to be visibly 

shaken. At trial, Stanker testified that he reviewed the security footage video 

which showed defendant and M.P. speaking outside the restaurant, and after she 

went inside, defendant tried to watch her through the windows. M.P. reported 

defendant's sexual abuse to Detective Adam Capoferri of the New Jersey State 

Police.

Defendant denied the allegations, claiming that he was suffering from 

erectile dysfunction since 2007 and therefore, it was impossible for him to have 

committed the sexual assaults. At trial, he testified about various erectile 

dysfunction medications he took but did not work. He also denied threatening 

C.M., J.P., or M.P. 
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In January 2011, the Cumberland County Prosecutor's Office arranged for 

J.P. to return to the United States legally, and she gave a statement to Detective 

Capoferri about defendant's sexual abuse.

At the conclusion of trial, a jury convicted defendant on all nine counts. 

The judge imposed an aggregate prison term of thirty-eight years, with thirtyfour years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, 

Parole Supervision for Life, N.J.S.A. 2C:43-6.4, Megan's Law, N.J.S.A. 2C:7-1 

to -23, fines, penalties, and $1470 in restitution to the VCCO.

On appeal, defendant argues the following points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR IN NOT SEVERING COUNTS RELATING 

TO DIFFERENT WITNESSES AND EVENTS (Not 

Raised Below); IN ADMITTING IRRELEVANT AND 

PREJUDICIAL OTHER-CRIME EVIDENCE 

(Partially Raised Below); AND IN NOT 

INSTRUCTING THE JURY ON HOW TO 

CONSIDER THE EVIDENCE. (Not Raised Below).

A. The Trial Court Committed Plain Error By Not 

Severing The Counts Concerning Different 

Incidents And Witnesses.

B. The Trial Court Committed Plain Error In 

Admitting Other-Crime Evidence Of Defendant 

Allegedly Stalking And Twice Attempting To 

Kidnap A Complaining Witness.
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C. The Trial Court Committed Reversible Error In 

Admitting Bad-Act Evidence Of Defendant 

Allegedly Threatening, Stalking, And Abusing 

The Witnesses.

D. The Trial Court Committed Plain Error In Not 

Instructing The Jury To Consider The Offenses 

Separately And To Not Use Them Or The BadAct Evidence For Propensity.

POINT II

A NEW TRIAL IS REQUIRED BECAUSE THE 

STATE UNFAIRLY BOLSTERED ITS CASE WITH 

IMPROPER HEARSAY TESTIMONY (Not Raised 

Below), OPINION TESTIMONY (Not Raised Below), 

TESTIMONY THAT VIOLATED THE BESTEVIDENCE RULE, AND TESTIMONY AIMED AT 

APPEALING TO THE JURY'S EMOTIONS. 

(Partially Raised Below).

A. The Trial Court Committed Plain Error In 

Admitting Corroborative Hearsay Testimony 

About The Allegations.

B. The Trial Court Committed Plain Error In 

Admitting Opinion Testimony Regarding 

Defendant's Guilt.

C. The Trial Court Committed Reversible Error In 

Allowing Testimony About What Was On A 

Surveillance Video That Was Not Presented At 

Trial.

D. The Trial Court Committed Reversible Error In 

Allowing The State To Elicit Irrelevant And 

Highly Inflammatory Testimony Aimed At The 

Jury's Emotions.
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POINT III

REVERSAL IS REQUIRED BECAUSE THE 

PROSECUTOR ENGAGED IN REVERSIBLE 

MISCONDUCT AIMED AT IMPROPERLY 

BOLSTERING THE STATE'S CASE AND 

DISPARAGING THE DEFENSE. (Not Raised 

Below).

POINT IV

THE CUMULATIVE EFFECT OF THE TRIAL 

ERRORS DEPRIVED DEFENDANT OF DUE 

PROCESS AND A FAIR TRIAL AND WARRANTS 

REVERSAL OF HIS CONVICTIONS. (Not Raised 

Below).

POINT V

RESENTENCING IS REQUIRED BECAUSE THE 

COURT FAILED TO ADDRESS REQUESTED 

MITIGATING FACTORS; RESTITUTION WAS 

ORDERED FOR A NON-VICTIM; THE COURT DID 

NOT HOLD A HEARING ON THE FINES TO BE 

PAID; AND THE $30-PER MONTH SEX OFFENDER 

FINE WAS UNCONSTITUTIONALLY IMPOSED.

A. The Trial Court Erred In Failing To Address The 

Mitigating Factors Raised By The Defense.

B. The Trial Court Erred In Imposing Restitution

For A Non-Victim And In Doing So Without A 

Hearing.

C. A Remand Is Required Because The Trial Court 

Imposed $3000 In SCVTF Penalties Without A 

Hearing.
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A-0434-17T4

D. A Remand Is Required To Remove The $30-PerMonth Sex Offender Supervision Fee.

II.

A. Severance

Defendant argues that the trial court erred by failing to sever the counts 

of the indictment as to J.P. and M.P. This issue was not raised below. Therefore, 

we must consider whether the court's failure to sever the charges for trial was 

erroneous and, if so, whether it constituted plain error, which is an error "clearly 

capable of producing an unjust result." R. 2:10-2. He further claims the trial 

court erred by allowing other crime evidence to be admitted as inherently 

prejudicial.

Rule 3:15-2(b) provides that the court may order separate trials if "it 

appears that a defendant or the State is prejudiced by a permissible or mandatory 

joinder of offenses . . . ." In determining if joinder is prejudicial to a defendant, 

the court considers whether, if the crimes were tried separately, evidence of the 

severed offenses "would be admissible under [Rule 404(b)] in the trial of the 

remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996)

(alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)); 

State v. Oliver, 133 N.J. 141, 150-51 (1993).
10 A-0434-17T4

Defendant argues he was prejudiced by the charges involving C.M. and 

J.P. being tried together with those involving M.P. because "their simultaneous 

presentation was clearly capable of influencing the jury's deliberations," and the 

sexual assaults of each sister were "not relevant to each other." He contends 

that the alleged assaults on J.P. and related threats to her and C.M. (counts one 

through six) occurred on different dates, in different places and under different 

circumstances from the alleged assaults on M.P. (counts seven through nine). 

We are not persuaded by these arguments.

Rule 3:7-6 provides:

Two or more offenses may be charged in the same 

indictment or accusation in a separate count for each 

offense if the offenses charged are of the same or 

similar character or are based on the same act or 

transaction or on [two] or more acts or transactions 

connected together or constituting parts of a common 

scheme or plan. Relief from prejudicial joinder shall 

be afforded as provided by R. 3:15-2. 

Rule 3:15-1 provides:

(a) Permissible Joinder. The court may order [two] or

more indictments or accusations tried together if the 

offenses and the defendants, if there are [two] or more, 

could have been joined in a single indictment or 

accusation. The procedure shall be the same as if the 

prosecution were under such single indictment or 

accusation.
11 A-0434-17T4

(b) Mandatory Joinder. Except as provided by R. 3:15-

2(b), a defendant shall not be subject to separate trials 

for multiple criminal offenses based on the same 

conduct or arising from the same episode, if such 

offenses are known to the appropriate prosecuting 

officer at the time of the commencement of the first trial 

and are within the jurisdiction and venue of a single 

court. 

If, however, "it appears that a defendant or the State is prejudiced by a 

permissible or mandatory joinder of offenses or of defendants in an indictment 

or accusation, the court may order an election or separate trials of counts . . . ." 

R. 3:15-2(b). Rule 3:15-2(c) provides that "[a] motion for separate trial of 

counts of an indictment or accusation must be made pursuant to R. 3:10-2, unless 

the court, for good cause shown, enlarges the time." 

We note that neither party moved for severance here. And, "[t]he decision 

whether to grant severance rests within the trial court's sound discretion and is 

entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). 

Further, a trial judge has the discretion to "order separate trials on counts of an 

indictment if a party is prejudiced by their joinder." Oliver, 133 N.J. at 150.

Specifically, "[t]he test for assessing prejudice is 'whether, assuming the 

charges were tried separately, evidence of the offenses sought to be severed 

would be admissible under [Rule 404(b)] in the trial of the remaining charges.'" 

State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting 
12 A-0434-17T4

Chenique-Puey, 145 N.J. at 341). The judge properly tried the charges together.

We consider next defendant's argument regarding the admission of other 

bad acts evidence. Rule 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not 

admissible to prove the disposition of a person in order 

to show that such person acted in conformity therewith. 

Such evidence may be admitted for other purposes, 

such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of 

mistake or accident when such matters are relevant to a 

material issue in dispute.

Our Supreme Court has set forth the following criteria for admitting othercrimes evidence under Rule 404(b):

1. The evidence of the other crime must be admissible 

as relevant to a material issue;

2. It must be similar in kind and reasonably close in 

time to the offense charged;

3. The evidence of the other crime must be clear and 

convincing; and

4. The probative value of the evidence must not be 

outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citation 

omitted).]
13 A-0434-17T4

The trial court's analysis under Cofield should only be disturbed if there 

is a "clear error of judgment." State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting 

State v. Barden 195 N.J. 375, 390-91 (2008)).

Our careful review of the record reveals there was no undue prejudice 

resulting from the joint trial. Here, under the first Cofield prong, defendant's 

sexual assault of J.P., and his threats to her and C.M., are relevant to his sexual 

assault of M.P. And, defendant's sexual assault of M.P. is relevant to his sexual 

assaults of J.P. and related threats to her and C.M. In a similar vein, defendant's 

threats to call immigration officials regarding both daughters were based on his 

knowledge that they were undocumented. We reject defendant's argument that 

these offenses were not part of a common plan or scheme.

Under the second Cofield prong, the acts were similar in kind and 

reasonably close in time. Defendant's sexual assaults of J.P. occurred from mid2008 through late 2009 in his home. Defendant's sexual assaults of M.P. began 

in the first six months of 2010, shortly after he sent J.P. to Mexico. Like the 

sexual assaults on J.P., the acts against M.P. were committed in defendant's 

home. In both cases, defendant threatened to harm or kill the victims, and 

manipulated them by taking advantage of their undocumented status as a means 

of ensuring their silence.
14 A-0434-17T4

Under the third Cofield prong, there was clear and convincing evidence to 

show that defendant committed both sets of crimes. J.P. and M.P. presented 

credible and consistent allegations against defendant at trial. C.M. and O.P. 

confirmed many of these allegations based upon their own personal 

observations. Moreover, the responding officer's testimony corroborated J.P. 

and M.P.'s version of the events that transpired.

Finally, under the fourth Cofield prong, the probative value in this case is 

not outweighed by any prejudicial effect. The evidence showed the feasibility 

of defendant sexually assaulting J.P. and M.P. in his home. Further, his 

persistent threats regarding deportation explain why the victims did not 

immediately come forward. We conclude defendant's claim that other crime 

evidence has a "unique tendency to turn a jury against the defendant," State v. 

Reddish, 181 N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289, 302 

(1989)), is overcome by the highly probative evidence here.

B. Stalking and Attempted Kidnapping of M.P.

Defendant argues that he was prejudiced by the admission of evidence of 

his bad acts in stalking and attempting to kidnap M.P. in 2010, for which he was 

never charged. We are not persuaded by this argument.
15 A-0434-17T4

M.P. testified about defendant showing up at two of her workplaces and 

attempting to force her back to his house. Defendant did not object to her 

testimony.

Bad act evidence must be limited "by confining its admissibility to those 

facts reasonably necessary" to prove the issue. State v. Fortin, 318 N.J. Super. 

577, 598 (App. Div. 1999). Such evidence may not be used to "suggest that 

because the defendant is a person of criminal character, it is more probable that 

he committed the crime for which he is on trial." State v. Weeks, 107 N.J. 396, 

406 (1987) (citation omitted).

M.P.'s testimony was properly admitted. We reiterate that the four Cofield

prongs were met. Moreover, Stanker's testimony confirmed that M.P. and 

defendant had an encounter at Burger King. The stalking and kidnapping 

episodes show defendant's predatory plan towards M.P. and his repeated 

opportunities to abduct and assault her. The acts are also relevant to demonstrate 

defendant's sexual abuse of J.P., and related threats to her and C.M., based upon 

his paternal and marital connection to the victims.

C. Threatening, Stalking, and Abusing O.P. and J.P.

Next, defendant argues that the judge erred in admitting bad act evidence 

of his threat to kill O.P., defendant's contacting J.P. while she was in Mexico, 
16 A-0434-17T4

and evidence of his intoxication on November 10, 2009, the same day as one of 

the sexual assaults of J.P. Again, we reject defendant's arguments.

O.P. testified that after he saw defendant emerge from J.P.'s bedroom, 

defendant repeatedly threatened to have him deported or killed if he told anyone. 

J.P. testified that while in Mexico, she frequently moved because defendant 

called her and told her he wanted to visit her. Defense counsel did not object to 

this testimony. However, State Trooper Brian McCarty testified that defendant 

was intoxicated on November 10, 2009, at his home, and defense counsel 

objected to the characterization of defendant as being intoxicated. We review 

the former statements under a plain error standard, but reference to defendant's 

alleged intoxication is reviewed under the harmful error standard. State v. 

Gorthy, 226 N.J. 516, 539 (2016); R. 2:10-2.

Under the first Cofield prong, defendant's threats to O.P., his contacting 

J.P. while she was in Mexico, and evidence of his intoxication were all relevant 

to the crimes charged. And, his intoxication is relevant as to his state of mind 

and motive for his conduct on November 10, 2009.

Under the second Cofield prong, the acts were similar in kind and 

reasonably close in time to the crimes charged—they occurred only within a few 

weeks of the sexual assaults. Under the third Cofield prong, C.M., O.P., and
17 A-0434-17T4

J.P. credibly testified about these acts, and McCarty's testimony established 

defendant's intoxication. Under the fourth Cofield prong, the evidence 

collectively was highly probative as to how defendant took advantage of his 

marital relationship with C.M.

D. Jury Charge

Next, defendant argues for the first time on appeal, that the judge 

committed plain error by failing to instruct the jury that each offense must be 

considered separately, and evidence regarding some victims cannot be used as 

evidence that defendant had a propensity to commit the offenses regarding other

victims. He also argues that the judge did not properly instruct the jury not to 

consider the cumulative impact of all of the offenses.

The State contends that the testimony regarding defendant's visits to 

M.P.'s workplace is not evidence of other crimes because no charges arose from 

these incidents. Hence, there was no need to instruct the jury on the limited 

purpose for which the jury could consider the statements. 

At the charge conference, neither defendant nor the State sought a limiting 

instruction on the other crimes or bad acts evidence, nor did they object to the 

court's proposed final charge. Because defendant did not bring this issue to the 

attention of the trial judge, we review it under a plain error standard. R. 2:10-
18 A-0434-17T4

2. When we review an issue under the plain error standard, we will not reverse 

a conviction unless an error committed at trial was "clearly capable of producing 

an unjust result . . . ." Ibid. The error must have been "sufficient to raise a 

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

not have reached[.]" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div. 

2011) (alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 

(2008)).

The jury charge did not include any instruction on the use of other crimes 

or bad acts evidence. And, where multiple charges are tried together as was the 

case here, the model jury charge provides for an instruction directing the jury to 

consider the charges separately. See Model Jury Charges (Criminal), "Multiple 

Charges" (rev. Jan. 14, 2013). The State argues that defendant has waived this 

argument by not raising it below. 

Considering that defendant's visits to the bakery and Burger King to see 

M.P. did not result in charges being pressed against defendant, and thus, did not 

invoke Rule 404(b), we discern no prejudice or error. Moreover, the evidence 

against defendant here was overwhelming. Trial errors may be found harmless 

when evidence of guilt is overwhelming. See Gillespie, 208 N.J. at 93 (2011). 
19 A-0434-17T4

We conclude the error was harmless in light of the strength of the evidence 

connecting defendant to the crimes. Therefore, we reject defendant's contention.

III.

A. Hearsay Testimony

For the first time on appeal, defendant contends the trial judge's admission 

of four instances of "hearsay" testimony was an abuse of discretion resulting in 

plain error, which violated the hearsay rules. Specifically, he alleges that the 

judge erred by permitting the following testimony:

(1) M.P.'s testimony that defendant sent her to 

Mexico;

(2) O.P.'s testimony that he learned defendant 

sexually assaulted J.P.;

(3) C.M.'s testimony that she learned defendant 

sexually assaulted M.P.; and

(4) McCarty's testimony that he received "alternative 

information" corroborating the sexual assault of J.P.

Hearsay is an out-of-court statement "offered in evidence to prove the 

truth of the matter asserted." N.J.R.E. 801(c); see also State v. Savage, 172 N.J. 

374, 402 (2002). We review the admission of evidence employing an abuse of 

discretion standard.
20 A-0434-17T4

At trial, M.P. was asked, "[w]hen [J.P.] was sent to Mexico, at the time, 

did you know why she was sent to Mexico" and M.P. replied "[b]ecause 

[defendant] had sent her." Next, O.P. described the police visit to his home on 

November 10, 2009. When asked "did you find out that defendant sexually 

assaulted [J.P.]," he replied "[y]es". Further, the prosecutor asked C.M., "[w]as 

there a point in time that you found out that your other daughter, [M.P.], had 

been sexually assaulted by the defendant," and she replied "[y]es". Defense 

counsel did not object to any of this testimony.

Lastly, McCarty testified after he established that defendant had claimed 

the November 10, 2009 incident was related to J.P.'s phone privileges:

Prosecutor: Now you spoke with other parties on scene, 

correct?

McCarty: Yes.

Prosecutor: And is it true that they provided alternative 

information regarding what happened?

McCarty: Yes.

McCarty did not specify what this alternative information was, nor did he recite 

statements from others. Again, defense counsel did not object. 

Because none of the testimony was hearsay, there was no error in 

admitting it. M.P. testified based upon her own personal knowledge. O.P.'s 
21 A-0434-17T4

testimony was not offered to prove that the sexual assault happened but to 

describe his own perception and recollection surrounding the sexual assault and 

to establish when he became aware of the allegations made by his sister. C.M.'s 

testimony indicated when she became aware of the accusations against 

defendant, not to prove that the sexual assault occurred. Lastly, McCarty's 

testimony was not hearsay because he merely recounted his observations and 

experiences in responding to an emergency and simply acknowledged there were 

conflicting reports.

B. Opinion Testimony

Next, defendant argues that the judge committed plain error by admitting 

opinion testimony by McCarty about J.P. sustaining injuries consistent with an 

assault on November 10, 2009. At trial, the prosecutor asked McCarty about his 

investigation on November 10, 2009: "[C]ould you observe any signs of injury 

on [J.P.] that would have corroborated the allegation of simple assault?" He 

replied "[y]es," and described the bruises on J.P.'s neck, face, and arms which 

led him to arrest defendant for simple assault. Defendant did not object to this 

testimony, and therefore, we review it under the plain error standard.

Under Rule 701, if a witness is not testifying as an expert, the witness's 

testimony in the form of opinions or inferences may be admitted if it "(a) is 
22 A-0434-17T4

rationally based on the perception of the witness and (b) will assist in 

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

"Courts in New Jersey have permitted police officers to testify as lay 

witnesses, based on their personal observations and their long experience in 

areas where expert testimony might otherwise be deemed necessary." State v. 

LaBrutto, 114 N.J. 187, 198 (1989). However, a police officer may not provide 

testimony on the ultimate issue of guilt or innocence. State v. McLean, 205 N.J. 

438, 461 (2011); State v. Odom, 116 N.J. 65, 77 (1989).

Here, McCarty merely reported his observations of J.P.'s injuries based 

upon his perception and lay observation. He did not opine as to defendant's guilt 

and therefore, we reject defendant's contention.

C. Best Evidence Rule

Next, defendant argues that the judge erred in allowing Stanker to testify 

about the contents of the Burger King surveillance video despite it not being 

played to the jury, in violation of the best evidence rule. N.J.R.E. 1002.

Stanker explained that after speaking with M.P. at the Burger King, he 

viewed the restaurant's surveillance tape. He testified that,

the surveillance showed [M.P.] pulling into the parking 

lot at which time [defendant] pulled up alongside of her 

vehicle, where they had a short conversation. [M.P.] 

pulled into a parking spot[,] and [defendant] pulled the 
23 A-0434-17T4

van next to her vehicle as well. He -- she exited her 

vehicle to go into the Burger King. He later backed his 

van up into the parking spot adjacent to hers across 

from the next row of spots. 

And while she was inside the Burger King, the 

surveillance revealed that, you know, he pulled forward 

and back several times. It appeared as though he was 

trying to watch her through the windows of the Burger 

King. And then he later exited his vehicle and walked 

into the Burger King.

Once in there, the surveillance showed him exiting the 

doors to the west side of the Burger King, and he went 

south. There's a lot on the north side and a lot on the 

south side as well. He walked out toward the lot on the 

south side. And that's as far as we could see on the 

surveillance. 

Stanker testified that he was unable to obtain a copy of the surveillance 

tape. Defendant objected to Stanker's testimony, but the judge allowed the 

testimony because the video's contents were described in Stanker's police report, 

and he was subject to cross-examination.

We review a trial court's evidentiary rulings for abuse of discretion. 

Gorthy, 226 N.J. at 539. Thus, "trial courts are granted broad discretion in 

making decisions regarding evidentiary matters . . . ." State v. Scharf, 225 N.J

547, 572 (2016) (citations omitted). This court will reverse an evidentiary ruling 

only if it "was so wide off the mark that a manifest denial of justice resulted." 
24 A-0434-17T4

Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016); Green v. N.J. Mfrs. Ins. 

Co., 160 N.J. 480, 492 (1999).

The "best evidence" provisions in Rule 1002, provide that "[t]o prove the 

content of a writing or photograph, the original writing or photograph is required

except as otherwise provided in these rules or by statute." Rule 1001(b) clarifies 

that video tapes fall within the purview of Rule 1002. However, Rule 1004 

provides:

The original is not required and other evidence of the 

contents of a writing or photograph is admissible if: 

(a) Originals lost or destroyed. All originals are lost 

or have been destroyed, unless the proponent lost or 

destroyed them in bad faith; or 

(b) Original not obtainable. No original can be 

obtained by any available judicial process or procedure 

or by other available means. . . .

A criminal defendant must demonstrate any prejudice as a result of the 

prosecution's negligent loss or destruction of evidence in order to bar the State 

from presenting testimony regarding that evidence. California v. Trombetta,

467 U.S. 479, 488–91 (1984); State v. Hollander, 201 N.J. Super. 453, 478–80

(App. Div. 1985); State v. Serret, 198 N.J. Super. 21, 26–27 (App. Div. 1984);

State v. Washington, 165 N.J. Super 149, 155–56 (App. Div. 1979).
25 A-0434-17T4

Where evidence is not being offered to prove the truth of its contents, but 

rather as corroborative evidence of facts in evidence as here, testimony 

regarding the contents will suffice. Nerney v. Garden State Hosp., 229 N.J. 

Super. 37, 39 (App. Div. 1988). Here, the testimony about the contents of the 

surveillance video was not offered for its substantive truth, but rather to 

corroborate M.P.'s testimony that she had an encounter with defendant at Burger 

King. Thus, under Nerney, we conclude Stanker's testimony was corroborative 

and permissible.

Furthermore, defendant has not demonstrated substantial prejudice arising 

from the absence of the video or from Stanker's testimony regarding its contents. 

The surveillance video was not referenced to prove that he committed any of the 

crimes alleged, as none of the charges against defendant arise from the Burger

King incident, but merely corroborated M.P.'s testimony that she spoke with 

defendant at Burger King. Therefore, we reject defendant's argument.

D. Testimony Aimed at the Jury's Emotions

Next, defendant argues reversal is required because the prosecutor elicited 

irrelevant and inflammatory testimony about J.P.'s loss of virginity, her 

difficulty in testifying, and her views about defendant. No objection was raised 

at trial. He also argues J.P. characterized him as "a wolf" and claims the court 
26 A-0434-17T4

abused its discretion in admitting the testimony, over objection. J.P. testified 

that losing her virginity to defendant was the "worst feeling in the world," and 

it was not easy to share this information with strangers on the jury. 

During cross-examination, defense counsel asked J.P. if she had heard of 

the children's story "The Boy Who Cried Wolf," and implied that J.P. was 

similar to the main character because she had initially lied to police about the 

encounters with defendant. Later, J.P. testified on redirect:

Prosecutor: [Defense counsel] also used an analogy 

about The Boy That (sic) Cried Wolf. And didn't -- and 

you're familiar with that story, aren't you?

J.P: Yes.

. . . .

Prosecutor: Has there always been a wolf in this case?

J.P: Yes.

Prosecutor: And who is that wolf?

J.P.: [Defendant.]

We consider the first three statements under the plain error standard, Rule

2:10-2, because there was no objection, but J.P.'s characterization of defendant 

as a wolf is considered under the abuse of discretion standard in light of the 

objection raised. See Gorthy, 226 N.J. at 539. 
27 A-0434-17T4

Statements intended to arouse sympathy for a witness and anger toward a 

defendant are not permitted. State v. Timmendequas, 161 N.J. 515, 693 (1999), 

(citing State v. W.L., 292 N.J. Super. 100, 110-11 (App. Div. 1996)). It is 

improper to refer to defendants as animals or engage in derogatory name calling. 

State v. Williams, 113 N.J. 393, 455 (1988). However, in State v. T.E., 342 N.J. 

Super. 14, 27 (App. Div. 2001), the court allowed graphic testimony by the child 

victim in a sexual assault case over the defendant's objection that the State used 

the victim as a "trial tool" to evoke the jury's sympathy. 

Here, J.P.'s statements do not rise to the level of being prejudicial or 

inflammatory. Her testimony was relevant to material facts in the determination 

of defendant's guilt. J.P.'s statements about virginity demonstrate her moral 

character and her unwillingness to have sexual relations with defendant. Even 

where evidence is highly damaging to a defendant's case, this cannot serve as an 

independent basis to exclude otherwise admissible and probative evidence. 

State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015).

J.P.'s testimony referring to defendant as a "wolf" was not error because 

it showed her sexual acts with defendant were not consensual. And, it was in 

response to defense counsel's characterization of J.P. as a "girl who cried wolf." 

Therefore, we reject defendant's arguments.
28 A-0434-17T4

IV.

Next, defendant maintains he was denied a fair trial when the prosecutor, 

in her opening statement to the jury, said the case was about "fear, threats, and 

control" over the family. Further, the prosecutor stated defendant purchased 

J.P.'s plane ticket to Mexico, and her return was one of C.M.'s "biggest fears." 

The prosecutor also stated that C.M. and J.P. initially lied to police in November 

2009 and denied sexual abuse by defendant but later told the police defendant 

"did something very similar" to J.P. as he had done to M.P. These statements

did not elicit any objections.

In our review, we must determine whether the statements complained of 

wrongly contributed to defendant's conviction. See State v. Bankston, 63 N.J. 

263, 272 (1973). Defendant contends that the statements amounted to 

misconduct requiring reversal. While prosecutors occupy a special position in 

our system of criminal justice, see, e.g., State v. Daniels, 182 N.J. 80, 96 (2004), 

they are nevertheless entitled to zealously argue the merits of the State's case. 

State v. Smith, 212 N.J. 365, 403 (2012). "The duty of the prosecutor 'is as 

much . . . to refrain from improper methods calculated to produce a wrongful 

conviction as it is to use every legitimate means to bring about a just one.'" Ibid.

(alteration in original) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
29 A-0434-17T4

Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding 

of prosecutorial misconduct does not end a reviewing court's inquiry because, 

in order to justify reversal, the misconduct must have been 'so egregious that it 

deprived the defendant of a fair trial.'" State v. Smith 167 N.J. 158, 181 (2001) 

(quoting Frost, 158 N.J. at 83). One factor to consider is whether there was a 

proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 

(2012), because the lack of any objection indicates defense counsel "perceived 

no prejudice." Smith, 212 N.J. at 407.

Following our review of the record, we conclude any error by including 

these statements by the prosecutor was harmless. We weigh heavily the fact that 

the comments did not evoke an objection or a subsequent request for a curative 

instruction.

Defendant also argues the prosecutor's summation improperly suggested 

he used "smoke and mirrors" regarding his erectile dysfunction to shift focus 

from "the actual proofs." Again, this statement did not elicit any objection. 

Prosecutors may not "make inaccurate legal or factual assertions during a trial" 

and "must confine their comments to evidence revealed during the trial and 

reasonable inferences to be drawn from that evidence." Smith, 167 N.J. at 178.
30 A-0434-17T4

We again conclude any error by including this statement in summation by 

the prosecutor was harmless. And, no objection having been made to the 

remarks, we deem the remarks not to be prejudicial. Timmendequas, 161 N.J. 

at 576.

V.

Next, defendant claims that the cumulative effect of the trial errors 

undermined his rights to due process and a fair trial warranting reversal of his 

conviction. Defendant's argument is devoid of merit.

The cumulative effect of trial errors may merit reversal when it "casts 

doubt on the propriety of the jury verdict that was the product of that trial." State 

v. Jenewicz, 193 N.J. 440, 474 (2008). Reversal may be justified when the 

cumulative effect of a series of errors is harmful even if each error itself is 

harmless. Ibid. "[T]he predicate for relief for cumulative error must be that the 

probable effect of the cumulative error was to render the underlying trial unfair." 

State v. Wakefield, 190 N.J. 397, 538 (2007). Our careful review of the record 

convinces us that there is no cumulative effect of any trial errors warranting 

reversal.
31 A-0434-17T4

VI.

A. Sentence

Defendant contends that his sentence was excessive. Again, we disagree. 

He contends the sentencing judge failed to apply mitigating factors, ordered 

restitution for a non-victim, failed to conduct a hearing and make findings on 

certain penalties assessed, and unconstitutionally imposed the $30 per month 

SOSF penalty.

When we review a sentence, we do not substitute our own judgment for 

that of the sentencing court. State v. Natale, 184 N.J. 458, 489 (2005). We limit 

our inquiry to whether the sentencing guidelines were followed, whether there 

was competent and credible evidence supporting the application of the 

guidelines, and whether the sentence shocks the judicial conscience. Ibid.

The sentencing judge found aggravating factors one, the nature and 

circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); three, the risk of 

reoffending, N.J.S.A. 2C:44-1(a)(3); and nine, the need for deterrence, N.J.S.A. 

2C:44-1(a)(9). The judge found mitigating factor seven, because defendant had 

a criminal history, but it was primarily for old disorderly persons offenses, 

N.J.S.A. 2C:44-1(b)(7).
32 A-0434-17T4

The court imposed a sentence of thirty-eight years of which thirty-four 

years are subject to NERA. The sentence included consecutive sentences of 

eighteen years subject to NERA for count one, four years for count four, eight 

years subject to NERA on counts seven and nine, and concurrent sentences on 

the remaining counts. 

Defendant does not contest the aggravating factors; however, he argues 

the judge erred in failing to address mitigating factors eight through twelve. 

"[M]itigating factors that are suggested in the record, or are called to the court's 

attention, ordinarily should be considered and either embraced or rejected on the 

record." State v. Blackmon, 202 N.J. 283, 297 (2010). A trial court need not, 

"explicitly reject each and every mitigating factor argued by a defendant." State 

v. Bieniek, 200 N.J. 601, 609 (2010).

The sentencing judge reviewed defendant's history and concluded his 

conduct surrounding the crimes was "appalling." The judge also noted 

defendant preyed upon the victims' "perceived vulnerability to deportation." 

The record reflects that the sentencing judge considered the mitigating factors 

and its basis for rejecting them was implicit in its reasoning. We discern no 

error in the application of the guidelines and the sentence imposed does not 

shock the judicial conscience.
33 A-0434-17T4

B. Restitution

Next, defendant argues the sentencing judge erred in imposing restitution 

for a non-victim and in doing so without a hearing. We agree.

The VCCO submitted a letter to the judge stating it paid $1470 for M.P.'s 

psychological counseling bills in this matter and requested restitution in that 

amount. Defendant did not challenge the legitimacy or amount of the bills. His

presentence report stated he had no assets or income.

Pursuant to N.J.S.A. 2C:43-3, the victim of a crime is entitled to receive 

restitution from the offender at the time of sentencing. Further, "[t]he court shall 

. . . order the defendant to pay any restitution ordered for a loss previously 

compensated by the Board to the [VCCO]2."

Here, defendant's ability to pay restitution was disputed because he had 

no assets or income. The sentencing judge made no findings on this issue. 

Therefore, we remand to the sentencing judge to conduct a hearing relative to 

imposing restitution for a non-victim and whether a VCCO penalty is warranted.

2

In 2008, the Violent Crime Compensation Board was renamed the Victims of 

Crime Compensation Office. NJ Victims of Crime Compensation Office – 2016 

Annual Report, https://www.njleg.state.nj.us/OPI/Reports_ to_the_Legislature/

victims_of_crime_ar_2016.pdf.
34 A-0434-17T4

C. SCVTF Penalty

Defendant also challenges the sentencing judge's imposition of a $3000 

penalty payable to the SCVTF without a hearing or making any findings. 

The sex offender penalty amounts listed in N.J.S.A. 2C:14-10 are the 

maximum penalties the court may impose. See State v. Bolvito, 217 N.J. 221, 

224 (2014). In fixing the penalty amount, the court should consider the nature 

of the offense and the defendant's ability to pay. Id. at 233-35. The court should 

enter a statement of reasons as to the amounts imposed. Id. at 224; State v. 

Newman, 132 N.J. 159, 170 (1993); State v. Ferguson, 273 N.J. Super. 486, 499 

(App. Div. 1994).

Here, defendant's presentence report indicates that defendant does not 

have the ability to pay any fines or restitution. Nonetheless, contrary to Bolvito, 

the sentencing judge made no findings as to his ability to pay and entered no 

statement of reasons as to the amounts imposed. Therefore, we reverse and 

remand for a hearing on the SCVTF penalty.

D. SOSF Penalty

Lastly, defendant argues a remand is required because the $30 per month 

SOSF penalty was improperly imposed as an ex post facto law because the law 

establishing this penalty, N.J.S.A. 30:4-123.97, was not effective until July 1, 
35 A-0434-17T4

2014, more than four years after the last alleged incident in this case. He also

alleges that the penalty should not be imposed because he had no income, and

by its plain language, the penalty "shall not be assessed . . . if the person's income 

does not exceed 149 percent of the federal poverty level." N.J.S.A. 30:4-123.97. 

At sentencing, the judge correctly found that the SOSF penalty was not 

applicable because the offense was committed before the effective date of 

N.J.S.A. 30:4-123.9. However, the JOC indicates that a $30 per month SOSF

penalty was imposed under N.J.S.A. 30:4-123.97. 

We reverse and on remand, direct the sentencing judge to remove the 

SOSF penalty and amend the JOC accordingly. 

Affirmed in part, reversed and remanded in part for further proceedings 

consistent with our opinion. We do not retain jurisdiction.