SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. HORACE J. GORDON, a/k/a DEON DILLARD, J AMES 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 Jers ey, 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, M ercer County Prosecutor, at torney for resp ondent (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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon a ny court ." A lthough it is pos ted 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 , 20202 A

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PER CURIAM Following a jury trial, defendant Horace Gordon was convicted of first

degree murder, N.J.S.A. 2C:11

- 3(a)(2) ; second

- degree unl awful possession of a handg un, 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 Er rick Schanck and his girlfr iend, to celebr ate 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 Schan c k ' s home, but soon returned. Sharp confronted defendant outside the home and urged him again to leave the premises

. T he pair exchanged words and according to one eyewitness, defendant told Sharp " I ' ve got something fo r you ." Defendant pulled out h is 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 appe ar ed near defen dant ' 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.
D etectives who investi gated the shoot ing 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 a t the time the s hooting occurred. At trial, the State called Sc hanck and his g irlfriend 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.
Ac cording 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
l ying at its location for a long time , he concluded it was not related to Sharp ' s murd er. Defendant also testified at trial. On direct examination, he acknowledged he had a criminal history and serv ed time in prison . Asked by his attorney about his sentences, def endant responded, " I got probation for all except for one .

. . . I did fo ur years for a weapon. " Additionally, he admitted on direct examination4 A

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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 sho oting, he did not have a gun permit

. Following defendant's direct examina tion, t he 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 de fendant ' s testi mony. 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 o n a prior occasion.
On cross

- examination, defendant admitt ed he was convi cted of five prior indictable offenses

. W hen the prosecutor inquired about a 2008 conviction that followed on the heels of hi s release from incarceration, defendant asked, " is it al right if I explain it to them? " The prosecutor replied, " I t ' s up to you. " Defendant volunteered the particulars of a conviction for receiving stolen property . B ased on his description of the offense, the prosecutor questioned whether defendant believed the offense was " someone else ' s fault ." H e replied,

" yes. " Subsequently, he intimated he was not responsible for two of his five prior convictions, but " everythi ng else

. . . [he] really felt like it was [his] responsibility to take the charge for. "5 A

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Regarding the shooting , defendant testified , he " felt like [h e] had to do wh at [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 individual s

cr ouch ed behind a nearby truck with a gun. As cross - examination continued , defendant shifted his story and stated the person behind the truck was Schanck

. W hen the prosecutor challenged this recollection, defendant asserted, " I 'm thinking like now it ' s unf olding

. I thin k 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 , t o which t he prosecutor res ponded, " You ce rtainly did. " During closing argument, th e 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 d iscussed Schanc k ' 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 we lled up

. . . . Your observations control, b ut he was trying to be strong. He said I ' m fine, I ' m good, I ' m good. But his eyes said something different.6 A

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Further, the prosecutor noted the jurors were compelled to consider the reasonable d oubt standard a nd 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, wha t 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 the ir remarks "are not evidence an d must not be treated as eviden ce." After deliberating for t wo 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, defen dant 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 ' S7 A

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- 17T4 CHARACTER, COMPARING THE " REAS ONABLE DOUBT " S TANDARD TO DECIDING WHAT TO HAV E 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, SUGGESTI NG THAT THE DEF ENDANT ' 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 P rosecutor violated [ Brunson ] 1 by constantly cit ing to the D efe ndant ' s previous convictions, which included an unlawful weapon ' s possession charge. The P rosecutor also improperly used the weapon ' s possession charge to question the D efendant about the duration of him carrying a weapon outside of the ind ictment ' s alleg ations

. (Not rai sed below).
B. The P rosecutor 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 cr edible

. (Not r aised below).
C. The P rosecutor 's references to the D efendant either placing a baby and other children in danger or emotionally scarring a baby was improper and highly prejudicial

. (Not raised below).
D. The P rosecutor ' s editorializing an d argumentative commentary durin g the

1 State v. Brunson , 132 N.J. 377 (1993)

.8 A

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- 17T4 D efendant ' s cross examination was improper, as it included a personal opinion about the D efendant ' s guilt

. (Not raised below).
E. The D efendant ' s conviction must be reversed because the State diluted the reasonable d oubt standard d uri n g its summati on . (Not raised below).
POI NT 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 C OULD 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 VACATE D AND THE MATT ER 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 omissi on shall be dis regarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid.9 A

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Regarding Point I, w e acknowledge that " [p]rosecutorial misconduct is a basis for reversal of a crim inal 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)). Howe ver,
p rosecutors are generally permitted to p ursue their dut ies " 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 (A pp. 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. Pre ssley , 232 N.J. 587, 593

- 94 (2018). Counsel' s failure to ti mely object is indicative of his or her belief that the remarks were not prejudicial. Id

. at 594.
As to Point I A., d efendant seeks reversal of his conviction due to the prosecutor 's purported v iolation 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 deg ree of the crim e and date of the10 A

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offense, but must exclude any evidence of the specific crime. Id. at 391. This balancing test serves to " i nsure that a prior offender does not appear to the jury as a citizen o f unassailable veracity" and allows the State to use the con viction 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 , " i d. at 392 (quoting State v. Pennington , 119 N.J. 547, 607 (1990) ). The Suprem e Court extended the Brunson holding to evidence o f non

similar 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 . Biun no, Weissbard & Zegas, Current N.J. Rules of Evide nce , 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 provi ded inconsisten t 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 h e "had to plead guilty" because someone hi d a gun outside , unbeknownst to him. Later, defendant asserted h e "was in the wrong" and made some bad decisions.11 A

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" The opening the door doctrine . . . permits a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejud icial use of re lated evidence. " State v. Prall , 231 N.J. 567, 58 2

- 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 evi dence to their own advantage. I d. at 583. The evidence can be

a dmitted " 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 (19 96)). The doctrine, though, is limited by the N.J .R.E. 403 analysis of weighing the evidence ' s probative value against its prejudicial nature. I d. at 583.
In State v. Buffa , 51 N.J. Super. 218, 233 (App. Div. 1958), we upheld the prosecuto r ' s cross - exami nation 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 co nvictions. " I bi d. Here, the prosecutor did not question defendant about his prior gun ownership and felony convictions until defendant volunteered specifics

. Moreover, d efendant ' s only objection to questions regarding his prior12 A

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convictions occurred wh en the prosecut or 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 instru c ted jurors re g arding 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, 3 0 2 (2019).
A dditionally, we are not convinced that other statements made by the prosecutor rise to the level of misconduct. For example, d uring cross

examination, the prosecutor told defendant, "the truth will set you free." Also,

as defendant testifi ed Schanck inv i t ed 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 [Schan c k] 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 t he se co mments from th e prosecutor rose to the level of misconduct, but even if they did, we are persuaded the challenged remarks13 A

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were n ot clearly capable of producing an unjust result. R. 2:10

- 2. We arrive at this determination because no other witness t estifie d to a third i n dividual ' s presence behind a nearby vehicle and d efendant 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 sho oting p rovided signif i cant evidence of defendant's guilt. Next, we disagree that the prosecutor's statements pertaining to Schanck's emotional testimony was in appropriate

. " A prosecutor may argue that a witness is credible, so long as the prosecutor do es not personally vou c h 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 cl e arly 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 the m during his testimony.
D emeanor of a witn ess is one of t he 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, the14 A

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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 pros e cutor wrongfully discussed the presence of children , including Schanck's daughter, on the night of the shooting

. In fact, her remarks were relevant and proper ly tied t o defendant's testimony

. Relevant evidence is evidenc e " having a tenden cy in reason t o 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 fa vor admissibility. State v.
Dav i s , 96 N.J. 611, 619 (1984). However, re levant 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 tim e, 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 outweig hed by its inflammatory potential and will likely prevent the jury from fairly evaluating t he issues. St a te v. Koskovich , 168 N.J. 448, 486 (2001). This requires more than a " mere possibility that evidence could be15 A

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prejudicial " to the jury. Ibid. ( quoti ng State v. Morton , 155 N.J. 383, 453

- 54 (1998)). It is well established that p rosecutors m ust refrain fr o m " highly emotional " or " inflammatory " remarks that could potentially " anger and arouse the jury and thereby divert them from their solemn responsibil ity to render a verdict based on the evidence. " State v. Marshall , 123 N.J. 1, 161 (1991). They should n ot 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
rat her than a dispassionate analysis of the evidence , " i d. at 595. The record reflects that o n direct examin a tion, defendant testified h e 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 S chanck's house

. He claimed he fired a secon d shot at a nearby truck because he saw someone hiding behind it and n eeded to defend himself. The prosecutor q uestion ed defendant ab out children in the area to refute his claim of needing a gun for protection. She also provide d a fleeting comment that S h arp 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 was16 A

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entitled to challenge the heart of d efendant'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 Gort hy , 226 N.J. a t 540. Regarding the prosecutor's rejection of defendant's testimony that he did not intend to kill Sharp, we are mindful " it is imp roper for the prosecutor to declare [an] individual or official opinion or belief of a defendant ' s guilt in such manner th a t 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, t he prosecutor ' s expression of a personal belief in defenda nt ' s guilt doe s 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 th e prosecuto r 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 forcefull y p resent the S tate ' 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 forceful17 A

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presentation during a defendant's cross - examination yields inflammatory or damagi ng 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, t hey subject th e mselves 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 defenda nt' s story see m ed "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 , 15 7 N.J. Supe r . at 120)

. Here, t he State ha d the burden of proving beyond a reasonable doubt that d efendant ' s asserted self

- defense claim did " not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant act ed in self

- def e nse. " State v. Kelly , 97 N.J. 178, 200 (1984) (citing State v. Abbott , 36 N.J. 63, 72 (1961))

. Thus, t he State's burden necessarily subject ed defendant
t o aggressive questioning about his self

- defense claim. However, defense counsel was n ot deprived of t he opportunity to object to the prosecutor's cross

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examination, n or to ask appropriate rehabilitative questions on redirect. Therefore, we decline to conclude t he prosecutor ' s remarks constitute d prosecutori al misconduct . Moreover, we rei terate that du e to the evidence the State marshalled against defendant, we are not persuaded the prosecutor's
comments produc ed an unjust result. We need not discuss at length the prosecutor's discussion of the reasonable doubt standard during her closi ng 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, he r comments did not dilute the re asonable 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 an y possible dou b t. 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 instruct ion because you ' ll hear those wo rds.

" We rev i ew 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 closing19 A

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arguments as long as thei r 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 c omments about the reasonable doubt standard . M uch 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

ca u tioned 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 pre sume a jury follow ed 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 summatio n , and the tri a l 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 R ich , as a lay w itness, was permitted to testify that a bullet found at the crime scene during the investigation20 A

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

- examination by exploring when the detective bec ame aware a bu l let 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 th e shooting occurred, possessed a gun that produced a .22 caliber bullet. Lay witness testimony "in the form of opinions or inferences may be admi tted if it : (a) is rationally based on the witness' s perception ; and (b) will assist in unders tanding the wi t ness' 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 t he matter testified to, acquired through his or her senses. State
v. McLean , 205 N.J. 438, 45 6

- 57 (2011). L ay witnesses may give opinions as to "matters of common knowledge and observation." State v. Johnson , 120 N.J. 263, 294 (1990) (citing State v. La brutto , 114 N.J. 187, 197 (1989)) . Generally, however, lay witness testimony should not enter "into the rea l m of expert testimony." State v. Kittrell , 279 N.J. Super. 225, 236 (App. Div. 1995).

" We recognize that the line between permissible and impermi ssible lay opinion from police officers is not always self

- evident, and that some degree of21 A

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ca se - by

- case ana l ysis 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 opini on testimony was harmless where a police officer had the qualifications to testify as an exper t 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 test ified to the meaning of certain drug

- related jargon that he overheard on a wiretap. We conclu ded the detect i ve should have been qualified as an expert before testifying to the issue, but the error was harmless because he possessed sufficient credentials t o qualify as an expert and because the evidence of the defendant's guilt was so strong. Id. a t 457

- 59.
A s imilar analysis applies here, particularly given the officer's level of experience with the prosecutor's office and the limited nature of his testi mony. Although evidence about the character of a b ullet ordinarily sh ould be presented throug h expert testi m ony, 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, th e only evidence in t h e record of other individuals at the scene was defendant's inconsistent and contradictory testimony

. Fu rther, there is nothing in the record to suggest a third party fired a gun at the scene of the22 A

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shooting. Thus, we are satisfied any erro r in permittin g this testimony , where there was substantial evidence of defendant's guilt, was not clearly capable of
p roducing an unjust result. R. 2:10

- 2. Finally, we address defendant's contention in Point III that the trial judge
i mproperly weighed a ggravating and mitigating factors during sentencing

. Defendant argues we should vacate his sentence and remand this ma tter for resentencing because the judge improperly found aggravating factor s N.J.S.A. 2C:44

- 1 (a)(3) ( t he risk defendant will commit anoth er offense) , ( a )(6) ( t he extent of defendant ' s prior criminal record ) , and (a)(9) ( t he need to deter) applied

. Additio nally, 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) ( t he defendant did not contemplate his conduct would cause or threaten serious harm) . These arguments l ack merit.
Our review of sentencing determinations is limited. State v. Liepe , 239 N.J. 359, 370

- 71 (2019). We review such determina tion s 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 sen tencing court w ere not based upon competent and credible evidence in the record; or (3) " the application23 A

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- 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 tha t 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 assess ment about the " recidivism " factors required by caselaw. He began by providing a comprehensive evaluation of defendant ' s background that included his p hysical and mental health, his history of substance abuse and criminal offenses, and other personal fact ors. The reco r d reflects t he judge did not find aggravating factor three based solely on defendant ' s substance abuse history , but i nstead addressed how defendant's substance abuse history was linked to his criminal history. The judge also made a qualitat ive 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

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As to aggravating factor nine, the judge specifically stated he neede d to deter def e ndant 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 k illed the dece a sed. " Additionally, t he judge found no mitigating factors , including mitigating factor two , applied

. He noted the jury rejected defe ndant ' s claim of self

- defense

. Further, the judge found that after defendant shot Sharp, he " had the wherew ithal

. . . to turn around a second time and attempt to shoot [Sharp] in the back but he missed. " In light of these findings and our de ferential st andard of review, we

are persuaded the judge did not abuse his discretion when sentencing defendant.
Instea d, his finding s 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 opi nion. R. 2:11

- 3(e)(2). Affirmed.