SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5493-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HORACE J. GORDON, a/k/a

DEON DILLARD, JAMES 

MCKOY, TERRENCE MILLER, 

AND TERRANCE MILLER,

Defendant-Appellant.

____________________________

Submitted October 28, 2020 – Decided

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 16-02-0181.

Joseph E. Krakora, Public Defender, attorney for

appellant (Robert J. De Groot and Oleg Nekritin, 

Designated Counsel, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney 

for respondent (Monica Martini, 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NOT FOR PUBLICATION WITHOUT THE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. 1:36-3.

November 20, 2020
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A-5493-17T4

PER CURIAM

Following a jury trial, defendant Horace Gordon was convicted of firstdegree murder, N.J.S.A. 2C:11-3(a)(2); second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-4(a); and second-degree possession of a weapon for 

an unlawful purpose, N.J.S.A. 2C:39-5(b). Defendant challenges his conviction 

and sentence. We affirm.

In June 2015, defendant attended a party, hosted by Errick Schanck and 

his girlfriend, to celebrate Harvey Sharp's twenty-ninth birthday. Defendant 

spent time drinking and talking with Sharp. Close to midnight, Schanck and his 

girlfriend wanted their guests to depart, so Sharp informed defendant it was time 

to leave. Defendant left Schanck's home, but soon returned. Sharp confronted 

defendant outside the home and urged him again to leave the premises. The pair 

exchanged words and according to one eyewitness, defendant told Sharp "I've 

got something for you." Defendant pulled out his revolver and shot Sharp in the 

chest. 

Schanck's girlfriend, who was outside the home, heard defendant's gun 

discharge. She looked up and observed defendant point his arm in the direction 

of the front door before another shot rang out and a flash appeared near 

defendant's hand.
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Sharp ran toward the house and fell inside the front door. Schanck's 

girlfriend called 9-1-1 after she and her daughter saw Sharp bleeding from his 

chest wound. Sharp died within hours of the incident. 

Detectives who investigated the shooting recovered surveillance video 

from two nearby businesses. The footage showed defendant and Sharp in the 

street before the shooting, as well as flashes from defendant's gun at the time

the shooting occurred. 

At trial, the State called Schanck and his girlfriend to testify about the 

incident. Both witnesses confirmed they saw defendant shoot Sharp. The State 

also produced Detective Scott Rich to testify about the homicide investigation. 

According to Detective Rich's lay testimony, a .22 caliber round bullet was 

found on the road near the crime scene. He described the bullet as "corroded"

and asserted it was never fired from a gun. Because he believed the bullet was 

lying at its location for a long time, he concluded it was not related to Sharp's 

murder. 

Defendant also testified at trial. On direct examination, he acknowledged 

he had a criminal history and served time in prison. Asked by his attorney about 

his sentences, defendant responded, "I got probation for all except for one . . . . 

I did four years for a weapon." Additionally, he admitted on direct examination 
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to owning a gun, even though the parties stipulated at the beginning of the trial 

that on the date of the shooting, he did not have a gun permit. Following 

defendant's direct examination, the judge gave the jury a limiting instruction, 

stating, in part:

So, you've heard evidence that [defendant] has 

previously been convicted of crimes. This evidence 

may only be used in determining the credibility or 

believability of defendant's testimony. You may not 

conclude that the defendant committed the crimes 

charged in this case or is more likely to have committed 

those crimes charged simply because he committed 

crimes on a prior occasion.

On cross-examination, defendant admitted he was convicted of five prior 

indictable offenses. When the prosecutor inquired about a 2008 conviction that 

followed on the heels of his release from incarceration, defendant asked, "is it 

alright if I explain it to them?" The prosecutor replied, "It's up to you." 

Defendant volunteered the particulars of a conviction for receiving stolen 

property. Based on his description of the offense, the prosecutor questioned 

whether defendant believed the offense was "someone else's fault." He replied, 

"yes." Subsequently, he intimated he was not responsible for two of his five 

prior convictions, but "everything else . . . [he] really felt like it was [his]

responsibility to take the charge for."
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Regarding the shooting, defendant testified, he "felt like [he] had to do 

what [he] had to do because [Sharp] wouldn't listen to him" and "[i]t happened 

fast. It was out of fear." Further, he testified he suspected Schanck called two 

individuals to the scene prior to the shooting and that one of the individuals

crouched behind a nearby truck with a gun. As cross-examination continued, 

defendant shifted his story and stated the person behind the truck was Schanck. 

When the prosecutor challenged this recollection, defendant asserted, "I'm 

thinking like now it's unfolding. I think that's what happened." Defendant 

conceded he fired two shots from his .38 revolver when Sharp confronted him 

in the street, but he claimed he reacted out of fear. He testified he did not intend 

to shoot Sharp, to which the prosecutor responded, "You certainly did." 

During closing argument, the prosecutor mentioned that children were 

present in the area at the time of the shooting and that after Sharp was shot, he 

lay dying in front of Schanck's daughter. Additionally, the prosecutor discussed 

Schanck's emotional testimony about the incident. She told jurors, 

I'm certain [Schanck] did not want to come in and cry 

in front of this jury . . . ., but he did because when he 

said to you that he saw his best friend get murdered in 

front of his eyes, he welled up . . . . Your observations 

control, but he was trying to be strong. He said I'm fine, 

I'm good, I'm good. But his eyes said something 

different.
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Further, the prosecutor noted the jurors were compelled to consider the 

reasonable doubt standard and explained:

[y]ou make . . . decisions in your everyday life. Which 

house are you going to buy? Are you certain beyond 

any reasonable doubt that it's the right house for you? 

Well, no, but you're firmly convinced it's the right 

house. Which car, what you're going to eat for lunch? 

You're firmly convinced that that's what you want. 

That's all that's required of you in a criminal case.

Upon conclusion of the attorneys' summations, the judge instructed the jury that 

their remarks "are not evidence and must not be treated as evidence." 

After deliberating for two days, the jury found defendant guilty of all 

charges. At sentencing, the judge merged the charge for possession of a weapon 

for an unlawful purpose with the murder charge and imposed a forty-five-year 

term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Additionally, he 

sentenced defendant to a concurrent five-year term, with a forty-two-month

parole disqualifier for the remaining handgun offense. 

On appeal, defendant raises the following arguments:

POINT I

THE COURT MUST REVERSE THE GUILTY 

VERDICT AND REMAND THE MATTER FOR A 

NEW TRIAL DUE TO THE PROSECUTOR'S 

PATTERN OF MISCONDUCT WHICH INCLUDED 

MOCKING AND ATTACKING THE DEFENDANT'S
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CHARACTER, COMPARING THE "REASONABLE 

DOUBT" STANDARD TO DECIDING WHAT TO 

HAVE FOR LUNCH, EXPRESSING A PERSONAL 

OPINION AS TO THE DEFENDANT'S GUILT 

DURING CROSS EXAMINATION, BOLSTERING A 

WITNESS'S CREDIBILITY BY VOUCHING FOR 

HIS SINCERITY BASED ON WHAT SHE 

OBSERVED IN HIS EYES, SUGGESTING THAT 

THE DEFENDANT'S CONDUCT PLACED A BABY 

AND OTHER CHILDREN IN THE COMMUNITY IN 

DANGER, AND QUESTIONING THE DEFENDANT 

ABOUT THE UNDERLYING FACTS OF HIS 

PREVIOUS CONVICTIONS. (Not raised below).

A. The Prosecutor violated [Brunson]

1 by constantly 

citing to the Defendant's previous convictions, 

which included an unlawful weapon's possession 

charge. The Prosecutor also improperly used the 

weapon's possession charge to question the 

Defendant about the duration of him carrying a 

weapon outside of the indictment's allegations. 

(Not raised below).

B. The Prosecutor committed misconduct when she 

attempted to bolster the credibility of a State 

witness by personally vouching for the witness 

and arguing that his "eyes" and emotions showed 

his testimony was credible. (Not raised below).

C. The Prosecutor's references to the Defendant 

either placing a baby and other children in danger 

or emotionally scarring a baby was improper and 

highly prejudicial. (Not raised below).

D. The Prosecutor's editorializing and 

argumentative commentary during the 

1

 State v. Brunson, 132 N.J. 377 (1993).
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Defendant's cross examination was improper, as 

it included a personal opinion about the 

Defendant's guilt. (Not raised below).

E. The Defendant's conviction must be reversed 

because the State diluted the reasonable doubt 

standard during its summation. (Not raised 

below).

POINT II

THE COURT COMMITTED PLAIN ERROR WHEN 

IT PERMITTED DETECTIVE RICH TO TESTIFY 

THAT A LIVE ROUND BULLET FOUND AT THE 

SCENE OF THE SHOOTING WAS THERE 

PREVIOUSLY FOR AN EXTENDED PERIOD OF 

TIME AND THEREFORE COULD NOT HAVE 

BEEN USED DURING THE INCIDENT, WHEN

THIS OFFICER WAS NEVER QUALIFIED AS AN

EXPERT. (Not raised below).

POINT III

THE COURT IMPROPERLY WEIGHED THE 

AGGRAVATING AND MITIGATING FACTORS 

WHEN SENTENCING THE DEFENDANT. THE 

SENTENCE MUST BE VACATED AND THE 

MATTER REMANDED FOR RESENTENCING.

To the extent defendant's contentions were not raised before the trial court, 

we review them through the prism of the plain error standard. R. 2:10-2. Under 

that standard, "[a]ny error or omission shall be disregarded by the appellate court 

unless it is of such a nature as to have been clearly capable of producing an 

unjust result . . . ." Ibid.
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Regarding Point I, we acknowledge that "[p]rosecutorial misconduct is a 

basis for reversal of a criminal conviction if the conduct was so egregious that 

it deprived the defendant of the right to a fair trial." State v. Gorthy, 226 N.J. 

516, 540 (2016) (quoting State v. Josephs, 174 N.J. 44, 124 (2002)). However, 

prosecutors are generally permitted to pursue their duties "with earnestness and 

vigor," State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001), and "a 

'fleeting and isolated' remark is not grounds for reversal," Gorthy, 226 N.J. at 

540 (quoting State v. Watson, 224 N.J. Super. 354, 362 (App. Div. 1988)). The 

alleged misconduct must be viewed in the context of the totality of the evidence, 

to determine whether it may have affected the outcome of trial and produced an 

unjust result. State v. Pressley, 232 N.J. 587, 593-94 (2018). Counsel's failure 

to timely object is indicative of his or her belief that the remarks were not 

prejudicial. Id. at 594.

As to Point I A., defendant seeks reversal of his conviction due to the 

prosecutor's purported violation of the principles outlined in State v. Brunson, 

132 N.J. 377 (1993). We are not persuaded.

In Brunson, the Supreme Court held that when a testifying defendant was 

previously convicted of an offense similar to the one currently charged, the State 

may only introduce evidence regarding the degree of the crime and date of the 
10 A-5493-17T4

offense, but must exclude any evidence of the specific crime. Id. at 391. This 

balancing test serves to "insure that a prior offender does not appear to the jury 

as a citizen of unassailable veracity" and allows the State to use the conviction 

to attack the defendant's credibility, id. at 391-92, while avoiding "the 

extraordinary prejudice that follows if the prior crime was specifically named or 

described," id. at 392 (quoting State v. Pennington, 119 N.J. 547, 607 (1990)). 

The Supreme Court extended the Brunson holding to evidence of nonsimilar convictions in State v. Hamilton, 193 N.J. 255, 268-69 (2008). 

Subsequently, in 2014, N.J.R.E. 609 was amended to reflect the holdings of 

recent caselaw, including Brunson and Hamilton. Biunno, Weissbard & Zegas, 

Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 609 (2019). 

The record reflects that here, defendant opened the door and educated 

jurors about the underlying details of some of his criminal convictions, and 

provided inconsistent statements about such convictions. For example,

defendant asserted he was convicted of a gun offense in 1999, then later denied 

it. He also implied that his first offense was not his fault, and he "had to plead 

guilty" because someone hid a gun outside, unbeknownst to him. Later, 

defendant asserted he "was in the wrong" and made some bad decisions.
11 A-5493-17T4

"The opening the door doctrine . . . permits a party to elicit otherwise 

inadmissible evidence when the opposing party has made unfair prejudicial use 

of related evidence." State v. Prall, 231 N.J. 567, 582-83 (2018) (internal 

citation omitted). The purpose of the doctrine is to prevent defendants from 

excluding inadmissible evidence from the State's case and then utilizing pieces 

of that evidence to their own advantage. Id. at 583. The evidence can be 

admitted "in order to respond to (1) admissible evidence that generates an issue, 

or (2) inadmissible evidence admitted by the court over objection." Id. at 582 

(citing State v. James, 144 N.J. 538, 554 (1996)). The doctrine, though, is 

limited by the N.J.R.E. 403 analysis of weighing the evidence's probative value 

against its prejudicial nature. Id. at 583.

In State v. Buffa, 51 N.J. Super. 218, 233 (App. Div. 1958), we upheld the 

prosecutor's cross-examination of a defendant about his juvenile record after he 

raised the matter on direct examination. We stated, "[c]ertainly the State is not 

compelled to stand by helplessly when a defendant misrepresents the number or 

character of his prior convictions." Ibid.

Here, the prosecutor did not question defendant about his prior gun 

ownership and felony convictions until defendant volunteered specifics. 

Moreover, defendant's only objection to questions regarding his prior 
12 A-5493-17T4

convictions occurred when the prosecutor asked: "Is it possible with five 

different convictions and you carrying two different guns over the course of over 

a decade, it's actually you that's scary in Trenton?" The judge overruled 

defendant's objection to this remark but instructed jurors regarding the limited 

purpose for which they could consider defendant's prior convictions. Thus, we 

are satisfied the prosecutor's handling of defendant's prior convictions, did not 

amount to plain error. See State v. Tillery, 238 N.J. 293, 302 (2019). 

Additionally, we are not convinced that other statements made by the 

prosecutor rise to the level of misconduct. For example, during crossexamination, the prosecutor told defendant, "the truth will set you free." Also,

as defendant testified Schanck invited individuals to the scene, his narrative 

about who was crouched behind the truck changed. In response to defendant's 

statements, the prosecutor responded, "as you go along, the facts that you're 

making up are making less and less sense. Was it [Schanck] or are you not sure 

who it was?" She added, "[t]hese people, these figments of your imagination 

they might be coming, but you don't see them, right?" Defense counsel did not 

object to any of these remarks. 

We cannot conclude these comments from the prosecutor rose to the level 

of misconduct, but even if they did, we are persuaded the challenged remarks 
13 A-5493-17T4

were not clearly capable of producing an unjust result. R. 2:10-2. We arrive at 

this determination because no other witness testified to a third individual's 

presence behind a nearby vehicle and defendant struggled to maintain a credible 

narrative as to his self-defense claim. Also, surveillance videos, defendant's 

admission he shot Sharp, and eyewitness testimony about the shooting provided 

significant evidence of defendant's guilt. 

Next, we disagree that the prosecutor's statements pertaining to Schanck's 

emotional testimony was inappropriate. "A prosecutor may argue that a witness 

is credible, so long as the prosecutor does not personally vouch for the witness 

or refer to matters outside the record as support for the witness's credibility." 

State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004) (citing State v. 

Scherzer, 301 N.J. Super. 363, 445 (App. Div. 1997)). Here, the prosecutor 

clearly implied that Schanck was credible, but she did not do so based on 

information outside the evidence. Rather, she asked jurors to recall Schanck's 

demeanor, which, obviously, was visible to them during his testimony. 

Demeanor of a witness is one of the factors that a jury is entitled to 

consider in determining whether a witness is worthy of belief and, therefore, 

credible. See Model Jury Charges (Criminal), "Criminal Final Charge –

Credibility of Witnesses" (rev. May 12, 2014). Indeed, in his final charge, the 
14 A-5493-17T4

judge appropriately instructed jurors they could reflect on the demeanor of 

witnesses who testified. Accordingly, the prosecutor's comments respecting 

Schanck's demeanor provide no basis for reversal. 

We also are not persuaded that the prosecutor wrongfully discussed the 

presence of children, including Schanck's daughter, on the night of the shooting. 

In fact, her remarks were relevant and properly tied to defendant's testimony. 

Relevant evidence is evidence "having a tendency in reason to prove or 

disprove any fact of consequence to the determination of the action," N.J.R.E. 

401, and is admissible, absent a specific exception, N.J.R.E. 402. State courts 

have broadly defined relevance in such a way as to favor admissibility. State v. 

Davis, 96 N.J. 611, 619 (1984). However, relevant evidence may be "excluded 

if its probative value is substantially outweighed by the risk of (a) [u]ndue

prejudice, confusion of issues, or misleading the jury; or (b) [u]ndue delay, 

waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. 

It also will be excluded where the court finds that its probative value is 

substantially outweighed by its inflammatory potential and will likely prevent 

the jury from fairly evaluating the issues. State v. Koskovich, 168 N.J. 448, 486 

(2001). This requires more than a "mere possibility that evidence could be 
15 A-5493-17T4

prejudicial" to the jury. Ibid. (quoting State v. Morton, 155 N.J. 383, 453-54 

(1998)).

It is well established that prosecutors must refrain from "highly 

emotional" or "inflammatory" remarks that could potentially "anger and arouse 

the jury and thereby divert them from their solemn responsibility to render a 

verdict based on the evidence." State v. Marshall, 123 N.J. 1, 161 (1991). They 

should not play on the jury's sentiments, State v. Black, 380 N.J. Super. 581, 

594 (App. Div. 2005), at the risk of producing "a verdict fueled by emotion 

rather than a dispassionate analysis of the evidence," id. at 595.

The record reflects that on direct examination, defendant testified he 

carried a gun because "the area is wild" and he needed protection due to the 

volume of crime in the area. Moreover, after he first fired at Sharp, defendant 

denied shooting toward Schanck's house. He claimed he fired a second shot at 

a nearby truck because he saw someone hiding behind it and needed to defend 

himself. The prosecutor questioned defendant about children in the area to 

refute his claim of needing a gun for protection. She also provided a fleeting 

comment that Sharp was bleeding in front of Schanck's child after defendant 

stated he would not have fired his second shot toward the house because he was 

aware a child was inside. In this context, we are persuaded the prosecutor was 
16 A-5493-17T4

entitled to challenge the heart of defendant's self-defense claim and that her 

comments were not designed to impassion the jury. Moreover, her limited 

comments were not capable of producing an unjust result, considering the 

substantial evidence of defendant's guilt. See Gorthy, 226 N.J. at 540. 

Regarding the prosecutor's rejection of defendant's testimony that he did 

not intend to kill Sharp, we are mindful "it is improper for the prosecutor to 

declare [an] individual or official opinion or belief of a defendant's guilt in such 

manner that the jury may understand the opinion or belief to be based upon 

something which [the prosecutor] knows outside the evidence." State v. 

Thornton, 38 N.J. 380, 398 (1962). However, the prosecutor's expression of a 

personal belief in defendant's guilt does not constitute reversible error when it 

is based upon the evidence before the jury, rather than knowledge and facts not 

before the jury. State v. Harper, 128 N.J. Super. 270, 279 (App. Div. 1974). 

Stated differently, the error occurs when the prosecutor states or implies that his 

or her belief is based on facts not before the jury, such as the prosecutor's 

expertise or superior knowledge. State v. Hipplewith, 33 N.J. 300, 311 (1960). 

Prosecutors are permitted "to vigorously and forcefully present the State's 

case." State v. Timmendequas, 161 N.J. 515, 582 (1999) (citing State v. Rose, 

112 N.J. 454, 509 (1988)). It does not constitute error where a forceful 
17 A-5493-17T4

presentation during a defendant's cross-examination yields inflammatory or 

damaging information, particularly where the prosecutor does not 

mischaracterize the information and the defendant's statements are made 

knowingly and voluntarily. Ibid. 

Additionally, when defendants waive their right to remain silent and 

choose to testify, they subject themselves to vigorous cross-examination 

regarding the credibility of their stories. See State v. Robinson, 157 N.J. Super. 

118, 120 (App. Div. 1978) (where defendant was denied a new trial despite the 

prosecutor's closing remarks that defendant's story seemed "incredible . . . 

unbelievable . . . [and] fabricated"). "It is . . . not improper for a prosecutor to 

comment on the credibility of a defendant's testimony." State v. Darrian, 255 

N.J. Super. 435, 458 (App. Div. 1992) (citing Robinson, 157 N.J. Super. at 120). 

Here, the State had the burden of proving beyond a reasonable doubt that 

defendant's asserted self-defense claim did "not accord with the facts; acquittal 

is required if there remains a reasonable doubt whether the defendant acted in 

self-defense." State v. Kelly, 97 N.J. 178, 200 (1984) (citing State v. Abbott, 

36 N.J. 63, 72 (1961)). Thus, the State's burden necessarily subjected defendant 

to aggressive questioning about his self-defense claim. However, defense 

counsel was not deprived of the opportunity to object to the prosecutor's cross-
18 A-5493-17T4

examination, nor to ask appropriate rehabilitative questions on redirect. 

Therefore, we decline to conclude the prosecutor's remarks constituted

prosecutorial misconduct. Moreover, we reiterate that due to the evidence the 

State marshalled against defendant, we are not persuaded the prosecutor's 

comments produced an unjust result. 

We need not discuss at length the prosecutor's discussion of the reasonable

doubt standard during her closing statement. Although the prosecutor advanced 

an unusual comparison between the jury's obligations to determine defendant's 

guilt or innocence to everyday decisions they might make, in the context of the 

overall record, her comments did not dilute the reasonable doubt standard. Our 

conclusion is bolstered by the fact that the prosecutor also included in her 

closing remarks that jurors should understand that

[b]eyond a reasonable doubt does not mean proof

beyond any doubt, it does not mean proof beyond any

possible doubt. There are very few things in life that we 

know beyond . . . any possibility of doubt . . . . What it

means is that you are firmly convinced . . . . [A]nd listen 

for it when the judge reads you that instruction because 

you'll hear those words.

"We review the challenged portions of a prosecutor's summation in the 

context of the entire summation." State v. Vasquez, 374 N.J. Super. 252, 262 

(App. Div. 2005). "Prosecutors are afforded considerable leeway in closing 
19 A-5493-17T4

arguments as long as their comments are reasonably related to the scope of the 

evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. 

Harris, 141 N.J. 525, 559 (1995)). Guided by these principles, we perceive no 

basis to find reversible error concerning the prosecutor's comments about the 

reasonable doubt standard. Much of what she told jurors about this standard 

mirrored the model definition, and the judge also instructed the jury regarding 

reasonable doubt, consistent with the Model Jury Charge. Moreover, the judge 

cautioned jurors to disregard "any statements by the attorneys as to what the law 

may be" if those statements "are in conflict with my charge." 

Reviewing courts presume a jury followed the trial court's instructions. 

State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). Indeed, this 

"presumption is '[o]ne of the foundations of our jury system.'" Id. at 504 

(quoting State v. Burns, 192 N.J. 312, 335 (2007) (alteration in original)). As 

defendant did not object to the State's summation, and the trial judge properly 

instructed the jury concerning reasonable doubt, we conclude the judge did not 

commit plain error by allowing the prosecutor some latitude in addressing the 

reasonable doubt standard.

Regarding Point II, we note Detective Rich, as a lay witness, was 

permitted to testify that a bullet found at the crime scene during the investigation 
20 A-5493-17T4

was corroded and unrelated to the murder. Defense counsel revisited this 

testimony during cross-examination by exploring when the detective became 

aware a bullet was at the scene and whether this was the same caliber of bullet 

that killed the victim. It is evident defendant intended to use this line of 

questioning to further his self-defense theory, i.e., that another individual hiding 

behind a truck where the shooting occurred, possessed a gun that produced a .22 

caliber bullet. 

Lay witness testimony "in the form of opinions or inferences may be 

admitted if it: (a) is rationally based on the witness's perception; and (b) will 

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

N.J.R.E. 701. The former requirement necessitates that the witness has actual 

knowledge of the matter testified to, acquired through his or her senses. State 

v. McLean, 205 N.J. 438, 456-57 (2011). Lay witnesses may give opinions as 

to "matters of common knowledge and observation." State v. Johnson, 120 N.J. 

263, 294 (1990) (citing State v. Labrutto, 114 N.J. 187, 197 (1989)). Generally, 

however, lay witness testimony should not enter "into the realm of expert 

testimony." State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).

"We recognize that the line between permissible and impermissible lay 

opinion from police officers is not always self-evident, and that some degree of 
21 A-5493-17T4

case-by-case analysis may be necessary." Rice v. Miller, 455 N.J. Super. 90, 

106 (App. Div. 2018). We previously found a trial court's error in allowing lay 

opinion testimony was harmless where a police officer had the qualifications to 

testify as an expert in a matter. In State v. Hyman, 451 N.J. Super. 429, 437-38 

(App. Div. 2017), a detective who had been involved in hundreds of drug-related 

investigations testified to the meaning of certain drug-related jargon that he 

overheard on a wiretap. We concluded the detective should have been qualified 

as an expert before testifying to the issue, but the error was harmless because he 

possessed sufficient credentials to qualify as an expert and because the evidence 

of the defendant's guilt was so strong. Id. at 457-59. 

A similar analysis applies here, particularly given the officer's level of 

experience with the prosecutor's office and the limited nature of his testimony. 

Although evidence about the character of a bullet ordinarily should be presented 

through expert testimony, we are satisfied any error in allowing Detective Rich 

to describe the corroded nature of the bullet and the determination it had not 

been fired was harmless. Again, defendant did not object to the detective's 

testimony. Also, the only evidence in the record of other individuals at the scene 

was defendant's inconsistent and contradictory testimony. Further, there is 

nothing in the record to suggest a third party fired a gun at the scene of the 
22 A-5493-17T4

shooting. Thus, we are satisfied any error in permitting this testimony, where 

there was substantial evidence of defendant's guilt, was not clearly capable of 

producing an unjust result. R. 2:10-2.

Finally, we address defendant's contention in Point III that the trial judge 

improperly weighed aggravating and mitigating factors during sentencing. 

Defendant argues we should vacate his sentence and remand this matter for 

resentencing because the judge improperly found aggravating factors N.J.S.A. 

2C:44-1(a)(3) (the risk defendant will commit another offense), (a)(6) (the 

extent of defendant's prior criminal record), and (a)(9) (the need to deter) 

applied. Additionally, as he continues to maintain he shot Sharp out of fear, 

defendant contends the judge improperly rejected mitigating factor N.J.S.A.

2C:44-1(b)(2) (the defendant did not contemplate his conduct would cause or 

threaten serious harm). These arguments lack merit. 

Our review of sentencing determinations is limited. State v. Liepe, 239 

N.J. 359, 370-71 (2019). We review such determinations under an abuse of 

discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Accordingly, 

we must affirm a trial court's sentence unless

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 
23 A-5493-17T4

of the guidelines to the facts of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in 

original) (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)).]

Additionally, we do not substitute our assessment of the factors for that of the 

trial court. State v. Bieniek, 200 N.J. 601, 608 (2010).

The Supreme Court has stated that aggravating factors three, six and nine 

are "arguably" linked together as "recidivism" factors. State v. Thomas, 188 

N.J. 137, 148-49 (2006) (citing State v. Abdullah, 184 N.J. 497, 499 (2005)). 

Here, the judge made the qualitative assessment about the "recidivism" factors 

required by caselaw. He began by providing a comprehensive evaluation of 

defendant's background that included his physical and mental health, his history 

of substance abuse and criminal offenses, and other personal factors. The record 

reflects the judge did not find aggravating factor three based solely on 

defendant's substance abuse history, but instead addressed how defendant's 

substance abuse history was linked to his criminal history. The judge also made 

a qualitative assessment regarding aggravating factor six, considering the 

totality of defendant's criminal record, which spanned the period from 1999 to 

2014 and included two handgun offenses. 
24 A-5493-17T4

As to aggravating factor nine, the judge specifically stated he needed to 

deter defendant and others from committing such a "heartless" and "senseless,"

offense and he was obliged to "send a message to this defendant that [the court 

needed] to protect the public from the conduct that this defendant showed when 

he shot and killed the deceased."

Additionally, the judge found no mitigating factors, including mitigating 

factor two, applied. He noted the jury rejected defendant's claim of self-defense. 

Further, the judge found that after defendant shot Sharp, he "had the wherewithal

. . . to turn around a second time and attempt to shoot [Sharp] in the back but he 

missed." In light of these findings and our deferential standard of review, we 

are persuaded the judge did not abuse his discretion when sentencing defendant. 

Instead, his findings are amply supported by the record. 

To the extent defendant's remaining arguments were not addressed, we are 

satisfied they lack merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

Affirmed.