SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. STEVEN L. GANIEL, a/k/a PIP E. EANIEL, STEVEN L. EANI EL, NAZ GANIEL and PUPPY GANIEL , Defendant

- Appellant.

___________________________

Submitted October 30, 2018

– Decided March 20, 2019 Before Judges Rothstadt and Gilson. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 15

- 09

- 2350. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Dylan P. Thompson, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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PER CURIAM Defendant Steven L. Ganiel appeals from the Law Division's judgment of conviction that was entered after a jury found him guilty of third

- degree aggravated assault, N.J.S.A. 2C:12

- 1(b) (7). After his conviction, the trial court sentenced defendant in the extended term to fifty

- four months with a twenty

- seven month period of parole ineligibility to be served consecutive to a term he was the n serving on parole for a pr ior offense. Defendant's conviction arose from a domestic violence incident involving his girlfriend, A

. D

. , who reported to the local police that defendant had assaulted and injured her. In his statement to police , defendant did not deny injuring A.D. , bu t
content ed that he did so during a physical altercation while acting in self

- defense. On appeal, defendant argues that various trial errors undermined his ability to
establish his claim of self

- defense. For example, he claims that while he never disputed causing some of A.D.'s injuries , the jury may have been misled into thinking he caused a ll of them because he was d enied his constitutional right t o confront his accuser at trial when a police officer was permitted to testify about
A. D.'s allegat ions even though A.D. did not appear as a witness . He also contends that the trial court improperly allowed a police officer to offer expert testimony about
A.D. ' s inj ur ies being caused by a weapon , which challenged his claim that he used3 A

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reasonable force in self

- defense. In addition, he argues that he was denied his constitutional right to present a complete defense because he was not permitted to explore A.D.' s mental health history, which would have demonstrated many of h er injuries wer e self

- inflicted

. According to defendant, the cumulative impact of all of the trial court's errors denied him a fair trial . In his challenge to his s entence, defendant argues that hi s sentence is illegal because the trial court imposed a consecutive term to a violation of his parole t hat had not yet occurred. For the

reason s that follow, we affirm.
I. The facts established in the record are summarized as follows. On July 12, 2015, Egg Harbor Township Police Officer Jennifer Hurley responded to a domestic violence call from A.D

. who reported that defendant had been physically
abusi ng h er since July 10, 2015. When the police responded to defendant and A.D.'s residence, A.D. was present but d efendant had left the apartment to go to the laundromat

. Some of A .D's injuries , including bruises to both of her eyes, were immediately apparent to the responding officers

. Hurley asked A.D. to remove her top layer of clothing and observed that A.D. had additional bruises up and down her arms as well as cuts o n her left arm. When questioned, A.D. admitted that the cuts were self

- inflicted

. She explained that despite defendant continuously physically4 A

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abus ing her over the past two days, she did not seek a restraining order against him and that he was on parole. The police transported A.D. to a regional medical center

. A.D. advised a treating nurse that in addition to be ing physically abused, defendant had sexually assaulted her

. A.D. requested that a sexual assault kit be completed but after wa rds
she clarified that she was not raped, but defendant had been aggressive during consensual sex

. The attending medical staff sent A.D. for a CT scan because she claimed that defendant banged her head on the floor and kicked her in the chest. Also, duri ng her medical assessment, A.D. stated that she wanted to end her life. She also told the nurse that she had severe depression and was dependent on medication, but because defendant removed the medicine from their home, she had not taken it for several da ys. While A.D. was being attended to at the medical center, Officer David Aldridge went to the laundromat to apprehend defendant

. At the police station, defendant was advised of his Miranda 1 rights and then interviewed. When questioned about the events of July 10, 2015 , he explained that he and A.D. had an argument and that A.D. was drinking and assaulted him with an X

- Acto knife , stabbing him in the left hand. He said that he grabbed her by the wrists and hit her

1 Miranda v. Arizona , 384 U.S. 463 (1966).5 A

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on the right side of the fac e with an open hand. A.D. told him that she was going to "Lorena Bobbitt" him and then grabbed his genitals along with another knife. Defendant stated that he grabbed her to avoid getting stabbed and hit her on the left side of her face with an open hand , ultimately placing her in a bear hug and throwing her to the ground in self

- defense. He said that he left the a partment to get away from
her. Defendant stated he returned to the residence a few hours later and went to sleep, until A.D. began to beat hi m with a phone. Defendant again left the home , but later returned after he spoke with A.D. and she begged him to come back

. At home, he and A.D. had sex and went to sleep. Upon waking , defendant went to the laundromat to do laundry , which was wh y he was not in the apartment when the police arrived. Defendant also reported that alcohol and A.D. 's mental illness were the most significant contributing factors to the incident s . O n September 30, 2015 , a grand jury returned an indictment charging defendant wi th one count of third

- degree aggravated assault, N.J.S.A. 2C:12

- 1 (b) (7). Defendant's ensuing trial took place over three days in October 2016. After initially conducting a pre - trial Rule 104 hearing, the trial court denied the State's application to admit the tape of A.D. 's 911 call as an a statement of " present sense impression ," under Rule 803(c)(1) , or an " excited utterance ," under Rule6 A

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803(c) (2 )

. It granted the State's motion to prevent defendant f ro m offering evidence relating to A.D.'s "mental stability as there[ was] no doctor on the w i tness list to testify to any type of limitation [A.D.] may have." However, the court st at ed that it would allow cross - examination about A.D.'s mental condition and he r medications
to determine their impact on her ability "to answer and understand questions and her state of mind then and now

. . . ." The court also denied defendant's application to admit an affidavit from A.D. , attesting to her self

- harm and easy bruising. 2 The court found that the affidavit

" ha [d] all the earmarks of deliberation and fabrication, where the declarant has apparently made excuses or explanations of self

- mutilation, self

- abuse and easily bruised based on medication, all of those appear to be facile expla nations for what may be very simply a domestic event resulting in her injury. " It ruled that if A.D. took " the stand,

. . . she c [ould] be confronted with her statements made to the 911 dispatcher and the jury may take from that what it may choose to

. . . . " At the end of the hearing, the parties advised the court that despite their efforts to subpoena A.D. to testify , she would not appear for trial

. The trial court i ssued an order for A.D.'s arrest so that she could be compelled to appear. Despite that order, A.D. di d not testify at the trial.

2 We have not been supplied with a copy of the affidavit.7 A

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At trial, Hurley and Aldridge testified for the State about the events that led to de fendant's arrest and the charge made against him

. During Aldridge's testimony, the St ate played the audio tape of his inter view of defendant , in which defendant explained how he acted in self

- defense and, in doing so, caused injuries to A.D. The State also called Lieutenant Dylan Hutton who explained he obtained consent from defendant to go b ack to the apartment to locate the weapon allegedly used by A.D. against him. During his conversation with defendant, Hutton did not observe any facial or neck injuries sustained by defendant , but did notice injuries to his hand, though they did not look fresh. The State's final witnes s was Dr. Eva Guerrieri, the attending physician in the emergency room who examined A.D. on July 12, 2015

. Before she testified, the trial
court granted the State's motion to bar defendant from cross - examining Guerrieri
about A.D.'s " psychiatric issues." In granting the motion, the trial court stated it would not allow questions "relative to any diagnosis of mental health ," but it would allow cross - examination about t h e doctor's knowledge of what medications A

. D

. was taking and whether they impacted A.D.' s ability to "understand the course of treatment" she was receiving or " why she was there." During her testimony , Guer r i e ri testified that she ordered a CT scan since it
looked like A.D. was struck in the face with force. She also had bruising over her8 A

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legs, chest, and arms as well as "superficial scratches." She asked A.D. how she obtained the injuries and was told that defendant had caused them over the course of three days except for "the older healed injuries, the cuts and bruises ," which A.D.

" revealed " were caused by her cutting herself in the past

. Guerrieri also testified that she ran blood and urine tests, which showed that A.D. had alcohol, benzodiazepine, 3 opiates, and marijuana in her system. When defense counsel attempted to cross exam ine Guerrieri and establish a connection between A.D.'s mental health and her injuries, the t rial court barred the examination as beyond the scope of the State's direct , but it allowed defense counsel to question her about whether any of A. D .'s injuries we re self

- inflicted

. Defendant did not testify but called R.M. , A.D. 's mother, as a witness. She testified that she saw A.D. on July 9, 2015 , and that A.D. had bruising around her eyes. She also stated that she only saw whatever injuries were present in text message photos that A.D. sent her after July 12, 2015 , and that A.D. "always had bruising on her arms and part of her legs," which was the result of A. D. being clumsy. Following deliberations, the jury found defendant guilty of the one count of aggravated assault as charged in the indictment

. On February 24, 2017, the trial

3 A.D. indicated that she had been prescribed Xanax on her list of medication s .9 A

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court sentenced defendant. In imposing a sentence consecutive to the one he w as serving on parole, the court stated it did so because "[t]his offense occurred in a separate place and time and was not in any way connected with the gravamen of the offenses for which defendant is presently serving parole. " This appeal followed.
II. On appeal, defendant specifically argues the following points:
POINT I
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSER BY THE INVESTIGATING OFFICER'S HEARSAY REPETITION OF THE VICTIM'S ACCUSATION. (NOT RAISED BELOW).
POINT II
DEF ENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE INTRODUCTION OF EXPERT TESTIMONY THROUGH A LAY WITNESS WHO OPINED THAT THE VICTIM'S INJURIES WERE CAUSED BY A WEAPON. (NOT RAISED BELOW).
POINT III
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO PRESENT A COMPLETE DEFENSE BY THE TRIAL COURT'S RULING THAT LIMITED HIS ABILITY TO EXPLORE THE VICTIM'S MENTAL HEALTH, WHICH WOULD HAVE DEMONSTRATED THAT10 A

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INFLICTED, LENDING CR EDENCE TO THE ONLY PROFFERED DEFENSE; SELF

- DEFENSE.
POINT IV
THE CUMULATIVE IMPACT OF THE TRIAL ERRORS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).
POINT V
THE TRIAL JUDGE IMPOSED AN ILLEGAL SENTENCE WHEN HE IMPOSED A CUSTODIAL T ERM THAT WAS MADE TO RUN CONSECUTIVELY TO A SENTENCE FOR A VIOLATION OF MANDATORY PAROLE SUPERVISION THAT HAD NOT YET BEEN IMPOSED. (NOT RAISED BELOW). As noted, defendant failed to raise with the trial court three of his f our contentions challenging hi s conviction

. Accordingly , we review those issues for plain error, which requires us to " disregard any unchallenged error s or omissions unless they are ' clearly capable of producing an unjust result. ' " State v. Santamaria , __ N.J. __, __ (2019) (slip op. at 13) (quoting R. 2:10

- 2). Regarding defendant's contention in Point I, w here his challenge implicates constitutional questions under the Confrontation Clause, " the appropriate plain error analysis

. . . address [ es ] whether any constitutional error was harmless beyond a reasonable doubt. " State v. Basil , 202 N.J. 570, 615 n.5 (2010) (Rabner, C.J.,11 A

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concurring in part and dissenting in part) (citation s omitted); see also State ex rel. J.A

. , 195 N.J. 324, 351 (2008 ); S tate v. Castagna , 187 N.J. 293, 312 (2006) (quoting Chapman v. California , 386 U.S. 18 (1967)). As to the remaining argument directed toward his conviction, we apply the harmless error standard. Under that standard, " even though an alleged error was broug ht to the trial judge's attention, it will not be grounds for reversal if it was 'harmless error [ , ] ' " which is "[a]n error

. . . [that is not ] 'clearly capable of producing an unjust result.'" State v. J.R. , 227 N.J. 393, 417 (2017) (first quoting State v. Macon , 57 N.J. 325, 337

- 38 (1971) ; and then quoting R. 2:10

- 2 ). " An evidentiary error will not be found ' harmless ' if there is a reasonable doubt as to whether the error contributed to the verdict. " Ibid. " The prospect that the error gave rise to an unjust result ' must be real [and] sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached. ' " Ibid. (alterations in original) (quoting State v. Lazo , 209 N.J. 9, 26 (2012) )

. As to defendant's challenge to his se ntence, "[ w ] e apply a deferential standard of review to the sentencing court's determination, but not to [its] interpretation of a law." State v. Bolvito , 217 N.J. 221, 228 (2014). Our " review of sentencing decisions is relatively narr ow and is governed by an abuse of12 A

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discretion standard." State v. Blackmon , 202 N.J. 283, 297 (2010). In our review, we may not "substitute [our ] judgment for those of our sentencing
courts." State v. Case , 220 N.J. 49, 65 (2014). We must, however, ensu re that the trial court followed the appropriate sentencing guidelines. We determine whether the trial court: ( 1) exercised discretion that "was based upon findings of fact grounded in competent, reasonably credible evidence"; ( 2) "applied the correct leg al principles in exercising its discretion"; and ( 3) applied the facts to the law in a manner that demonstrates "such a clear error of [judgment] that it shocks the conscience." State v. McDuffie , 450 N.J. Super. 554, 576 (App. Div. 2017) (quoting State v . Megargel , 143 N.J. 4 84, 493 (1996)).
III. With these guiding principles in mind, we turn our attention first to
defendant's contention under Point I that his constitutional right to confront A.D. was violated by the trial court allowing Hurl e y's unimpeac hable hearsay testimony that A. D

. told her defendant caused A.D.'s injuries. Testimony concerning what A.D. said about her injuries arose for th e fir s t time during defense counsel's cross

- examination of Hurl e y when he asked the officer

" [ b ] esides the physical injuries , di d th e victim indicate any other unlawful behavior by

. . . defendant ? " In response, Hurley stated that " [ b ] esides the13 A

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physical , " a nurse told Hurley that A.D. st a ted that she had been sexually assaulted. The testimony bein g challenged by defendant on appeal came during

re - direct when Hurley s tated that A.D. indicated to he r that the br uises she saw were caused by defendant

. Defendant contends that because A.D. did not testify, "he could not probe which injuries were self

- inflicted and which were caused [in] the reasonable application of defendant's defense of himself." He argues that d espite his fa ilure to object, Hurley's testimony on re - d i r ect should have been barred under the Confrontation Clause s contained in both the Sixth Amendment of the Federal Constitution and Article One, Section Ten of our State Constitution because they prohibit testimony at trial about out

- of

- court testimonial statements by a person who does not testify at trial , unless that person is unavaila ble and the defendant had a prior opportunity to cross

- examine him or her. Defendant argues th at any statements made by A.D. in response to Hurley's questioning should be considered testimonial since the primary purpose was to investigate a possible crime and not to address an ongoing emergency.
He also argues that the statement was prejudicial because he "could not probe [A.D.]'s veracity " as to which injuries were self

- inflicted and which he caused while defending himself . As such, defendant maintains that the error14 A

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contributed to the conviction and that he met the heavier plain error burden since the inability to confront A.D. "unfairly undercut his only defense." We disagree. It is beyond cavil that t he Sixth Amendment's Confrontation Clause, which applies to the states by way of the Fourteenth Amendment, guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to

. . . be confronted with the witnesses against him

. . . . " U.S. Const. a mend. VI. It bars the admission of "'[t]estimonial statements of witnesses absent from trial' except 'where the declarant is unavailable, and only where the defendant had a prior opportunity to cross

- examine'" that witness. State v. Dehart , 430 N.J. Super. 108, 114 (App. Div. 2013) (quoting Crawford v. Washington , 541 U.S. 36, 59 (2004) ). For that reason, when a testifying police officer repeats " what some other person told hi m concerning the crime by the accused the testimony violates the hearsay rule

. . . [and] the accused's Sixth Amendment right to be confronted by witnesses against him." State v. Bankston , 63 N.J. 263, 268

- 69 (1973)

. The testimony is objectionable when it includes details that "leads the jury to believe

a non - testifying witness has given the police evidence of the accused's guilt," which the jury does not already have

. I d. at 271.
W e conclude that to the extent that Hurley's description of what A.D. told
her about defendant causing he r injuries was admitted in error , it was not plain15 A

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error as there was other evidence that defendant caused at least some of the injuries . That evidence came directly from defendant in his interview with police , which was played for the jury and in which he admitted to striking A.D. and causing the injurie s to her head an d face, a l beit in self

- defe n se , as compared to the evidence of cutting on her arms that was undisputedly self

- inflicted

. There was therefore never a dispute that defendant injured A.D. during their physical altercation. Under these circum stances , there was no plain error warranting a reversal.
IV. We next address d efendant 's argument in P oint II that the tri al court improperly allowed Hurley to offer expert testimony about defendant's use of a
weapon . The challenged testimony arose during the following exchange between the prosecutor and Hurley during redirect examination:

Q: Taking a look at the State's exhibits again , the photos that you took, to the best of your training and experien ce, could you tell the jury do the injuries appear to be inflicted by a weapon or something else?
A: I'm not sure how I would determine if it was a weapon or not because hands can be used as a weapon, so I gu ess, yes, a weapon of some sort. There are cuts that are in a stra ight line, so one would assume t hat it would be a cutting instrument of some kind

. Q: How about the bruising?16 A

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- 16T4 A: Some of them are round, which could possibly be a blunt o bject, some of them look like a hand print. I can't, I'm not an e xpert on bruises, but I would just, you kno w, as sume that some type of weapon caused the injuries to her. According to defendant, although Hurley admitted to not being an expert , her expert testimony struck a "severe, unfair bl ow to his claim of self

- defense " and even though he did not object to the te stimony, his conviction should be reversed because the error "was clearly capable" of undermining his only defense. D efendant maintains that Hurley's testimony contradicted his
statement to the police about striking A.D. with his hands and made it "practically certain to disbelieve that he used reasonable force" while defending himself if the jury believed Hurley's testimony that he used a weapon.
Defendant also argues that Hurley's testimony went beyond permissible lay testimony under Rul e 701 and amounted to impermissible expert testimony under Rule 702 because the jury was not capable of determin ing whether a weapon was used without relying on expert testimony by a witness with specialized knowledge of the subject

. Again, we disagree. Contrary to defendant's contention, i t is clear from Hurley's testimony that she did not testify as an expert and only provided her lay opinion in response to
the prosecutor's question. Expert opinion testimony is allowed under Rule 702,17 A

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only "[i]f scient ific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, [and the] witness [is] qualified as an expert by knowledge, skill, experience, training, or education

. . . ." N.J.R.E. 702. To satisfy Rule 702, the proponent of the expert evidence must establish: " (1) the subj ect matter of the testimony

. . . [ is ] ' beyond the ken of the average juror ' ; (2) the field of inquiry ' must be

. . . such that an expert's testimony cou ld be sufficiently reliable ' ; and (3) ' the witness must have sufficient expertise to offer the ' testimony. " State v. J.L.G. , 234 N.J. 265, 280 (2018) ( quoting State v. Kelly , 97 N.J. 178, 208 (1984 ) ). Lay opinion testimony is permitted u nder Rule 701 "[i]f a witness is not testifying as an expert [ and] the witness' s testimony in the form of opinions or inferences

. . . (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' [s] testimony or in dete rmining a fact in issue." N.J.R.E. 701. "The witness's perception must ' rest[] on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing. ' " State v. Hyman , 451 N.J. Super. 429, 4 42 (App. Div. 2017) (alteration i n original) (quoting State v. McLean , 205 N.J. 438, 457 (2011) ).18 A

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Police officers are permitted to testify as lay witnesses when opining based on personal observations and experience. State v. LaBrutto , 114 N.J. 187, 198 (1989)

. The Court has observed that

[a] lthough

. . . , in explaining such lay opinion testimony, [we ha ve] referred

. . . to the officer's training and experience,

. . . the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. [ McLean , 205 N.J. at 459

. ] However, " reference in [a] question to [the officer's] training and experience, coupled with the request that [the officer] testify about h is [or her] belief as to what h ad happened, impermissibly ask[s] for an expert opinion from a witness who had not been qualified to give one. " Id. at 462

. Whether a police
officer's o pinion testimony is offered as lay or expert, it " is not a vehicle for offering the view of the witness about a series of facts that the jury can evaluate for itself or an opportunity to express a view on guilt or innocence. " Ibid. Here, we conclude that the prosecutor asked Hurley for impermissible expert opinion testimony , see id. at 463 , but Hurley answered by providing only lay opinion about whether a "weapon" was used in the altercation between defendant and A.D. That testimony could only be provided by an expert as " it [was ]

. . . outside the ken of average juror s , " so the admission of Hurley's19 A

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opinion was an error, but under the circumstances presented here, the erro r was harmless. I d. at 462

. The challenged testimony only corroborated defendant's statements in his interview , which his attorney relied upon in summation. Defendant admitted to striking A.D. with his hand and Hurley only opined that to the extent a hand
could be considered a weapon, a "weapon o f some sort was used" and that she had no specialized skill or training to determine if anything else was used to cause A.D.'s injuries that were depicted in the photographs presented to her. There was no plain error.
V.
We turn our attention next to defe ndant's argument in Point III that he should have been allowed to admit probative evidence to demonstrate that A.D.'s mental illness caused her to behave in a way that justified his defend ing himself and that not all of her injuries were caused by him. As noted earlier, a t trial, defendant unsuccessfully attempted to admit A.D.'s affidavit that attested to her history o f self

- harm and schizophrenia and his counsel tried to cross - examine Guerrieri about the connection between A.D.' s prescription drug

- use an d her infliction of injuries to herself

. He argues that the trial court abused its discretion by preventing him from connecting A.D.' s mental health to her20 A

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injuries, particularly in light of testimony from her mother. We find no merit to this argument. First, the trial court properly barred the proffered affidavit fr o m admission because it was hearsay under Rule 803(c) and therefore not admissible under Rule 802. Moreover, because the statement was not made by A.D. within a short
time of her conduct as al leged by defendant, it was not admissible under Rule 803(c)(3) (" [t]hen existing mental, emotional or physical condition") and it could not be admitted under Rule 803(c)(4) (" [s]tatement [] for purpose s of medical diagnoses or treatment") because it was n ot one given to a medical professional for determining a diagnosis or treatment. S ee State v. Williams , 106 N.J. Super. 170 (App. Div. 1969). Second, Guerrieri 's testimony about A.D.'s statement to her about A.D.'s
mental health issues and use of medicati ons did not open the door to allow defendant to further examine the doctor about A

. D

. 's problems . Guerri eri specifically testified that she was not concerned with A. D

. 's past mental health history but only about treating the physical injuries and she did not ask A.D. if she was responsible for her own injuries. For that reason, testimony by Guerr i eri about A.D. ' s use of psychiatric medications or her self

- inflicted injuries that were based upon A.D. ' s statements would also have been inadmissible h earsay21 A

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not subject to admission under Rule 803(c)(4) because t he statements made to the doctor were not "reasonably pertinent to [her] diagnosis or treatment" of
A.D. N.J.R.E. 803(c) (4)

. Finally, even if there was some basis to admit either the affidavit or to allow further examination of Guerri eri by defense counsel, the trial court's
decision to bar thei r admission was harmless. A.D .'s mental health issues and he r use of medications , as well as her history of inflicting wounds to herself were establishe d at trial through defendant's statement to police, A.D.'s mother's testimony , and portions of Guerri eri 's testimony that w ere presented to the jury. Under these facts, we conclude that the error, i f any, did not create a reasonable doubt that the error gave rise to an unjust result.
VI. Defendant's remaining challenge to his conviction relies upon his claim that the cumulative effect of the various legal errors he identified requires that we order a new trial. However, because we find that there were no prejudicial errors made by th e trial court and defendant's " ' trial was fair, ' " State v. Rivera , 437 N.J. Super. 434, 444 (App. Div. 2014) (quoting State v. Weaver , 219 N.J. 131, 155 (2014)) , we conclude his claim of cumulative merit is without
sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3 (e) (2).22 A

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Defendant's argument is premised upon his understanding that t he trial court

s entenced him to a term of imprisonment that was to be consecutive to a violation of parole for which he had yet to be convicted. Defendant's understanding , however , is incorrect

. Contrary to defendant's understanding, t he trial court specifically note d that defe ndant's sen tence was being imposed c ons ec u tive to his sentence for the crime he was currently on parole and his judgment of conviction confirmed that fact. The court's ruling was consistent with the statutory presumption that "[w] here [a] second crime [is ] committed while [a] defendant was released

on . . . parole, there is a presumption that the sentence is consecutive if the sentence does not specify otherwise

. . . ." Cannel, New Jersey Criminal Code Annotated, comme nt 7 on N .J.S.A. 2C:44

- 5 ( 2018); s e e also N.J.S.A. 2C:44

- 5(c) ( re quiring that , unless otherwise ordered by the court , a sentence for a crime committed while on parole shall be consecutive to "any period of reimprisonment that the parole board may require

. . . upon the revocation of his
paro le "). Accordingly, there was no abuse of the trial court's discretion in sentencing defendant as his sen ten ce was not illegal because defendant had to23 A

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complete his sentence on his first offense for however long the parole board may decide before he began his sentence on the present offense.
Affirmed.