SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0936-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRET A. HENDERSON,

Defendant-Appellant.

___________________________

Submitted March 11, 2019 – Decided

Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 16-04-

0355.

Joseph E. Krakora, Public Defender, attorney for 

appellant (John A. Albright, Designated Counsel, on 

the briefs).

Charles A. Fiore, Gloucester County Prosecutor, 

attorney for respondent (Dana R. Anton, Senior 

Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

April 18, 2019
2

A-0936-17T4

PER CURIAM

A Gloucester County grand jury charged defendant Bret Henderson with 

second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2), and third-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(8). Before turning to defendant's 

specific arguments, we briefly review the evidence at trial.

I.

The State contended that defendant's history with his estranged wife, J.B., 

was the motive for setting fire to what had been the couple's marital home. 

During colloquy before trial, the prosecutor indicated his intent to introduce 

evidence of the frayed relationship, including the parties' appearance in Family 

Court two days before the fire, during which the judge awarded J.B. possession 

of the house. Without conducting a N.J.R.E. 104 hearing or analysis under State 

v. Cofield, 127 N.J. 328, 338 (1992), the judge ruled the evidence was 

admissible, as well as "any threats [defendant] made to burn the car and house," 

finding the evidence was relevant to "motive or . . . intent."

Before the jury, the evidence revealed that in the morning of June 14, 

2015, emergency personnel responded to defendant's home, which was ablaze. 
3

A-0936-17T4

Three hours later, the fire was suppressed, but the home was in ruin. One of the 

firefighters received serious burns to his neck that required medical treatment.1

A subsequent investigation revealed that the fire was "set" with two points 

of origin, suggesting arson. Additionally, videos recovered from a camera 

mounted on a neighboring home, and security camera footage from a nearby gas 

station, depicted a man who shared defendant's physical characteristics walking 

down the street toward the gas station, using a gas pump, and returning toward 

the home.

Because the State did not provide discovery regarding any out-of-court 

identification of the man depicted in the video, defendant moved to exclude any 

identification of the person in the video by a State's witness. The judge granted 

the motion, holding:

The witness[es] . . . cannot place themselves in the 

shoes of being the finder of fact. It's up to the jury to 

determine whether that is . . . defendant in the video, so 

I am going to grant [defendant's] [m]otion to [s]uppress 

the identification of . . . defendant from the video.

In other words, they can't look at the video and 

say I know who that is.

 

1

 This firefighter was the victim in the aggravated assault count of the 

indictment.
4

A-0936-17T4

Despite this order, the investigating detective called by the State as a 

witness testified that he secured the videos and was "able to see . . . defendant 

on two separate – –[.]" Defense counsel immediately objected, and at sidebar, 

moved for a mistrial. The judge denied the motion, but required the State to 

reconfirm with its witnesses that they were not permitted to identify defendant 

in the video. The judge issued the following curative instruction to the jury:

[Y]ou're to disregard the detective's inference as to 

who's in the video. You will be given an opportunity 

to see the video and the jury has the responsibility of 

making the findings of fact[] in order to be able to 

determine who's in that video. That's up to you. You 

are the finders of fact.

J.B. testified about her tense domestic history with defendant, including a 

prior threat defendant made that "he would set the truck on fire and drive it 

through the house." J.B. vacated the house prior to the fire, and, on crossexamination, defense counsel questioned J.B. whether she paid the gas bill for 

the house. Apparently, the non-payment of the bill resulted in defendant being 

unable to switch the service into his name.

Before re-direct, at sidebar, the judge permitted the State, over defendant's 

objection, to question J.B. about her nonpayment of the bill. Both sides 

acknowledged that the questioning would likely elicit evidence of specific acts 

by defendant. Without any Cofield or N.J.R.E. 104 analysis, the judge permitted 
5

A-0936-17T4

the questions "to rebut why this particular bill wasn't changed . . . because it's 

been brought out before the jury." J.B. then testified that she did not pay the 

bill because defendant would "turn the heat all the way up and leave the windows 

wide open. And he would turn the oven on high, with the door open, just 

running. So you'd walk into a sweltering house with the windows wide open."

During summation the prosecutor suggested that based on defendant's 

height and body type, "there [was] reason to believe that the individual in the 

video is . . . defendant." There was no objection.

The jury convicted defendant of the lesser-included offense of thirddegree arson, N.J.S.A 2C:17-1(b)(2), and aggravated assault. The judge 

sentenced defendant to an aggregate term of four-years' imprisonment.

On appeal defendant asserts the following:

POINT I

THE LOWER COURT'S FAILURE TO GRANT A 

MISTRIAL, WHEN THE POLICE OFFICER 

IDENTIFIED DEFENDANT AS THE MAN 

APPEARING ON SURVEILLANCE VIDEO 

DURING HIS TESTIMONY CONTRARY TO THE 

COURT'S RULING THIS [SIC] OUT-OF-COURT 

IDENTIFICATION WAS INADMISSIBLE [AND] 

DEPRIVED DEFENDANT OF A FAIR TRIAL.
6

A-0936-17T4

POINT II

THE PROSECUTOR'S IDENTIFICATION OF 

DEFENDANT AS THE MAN IN THE VIDEO IN 

SUMMATION FOLLOWING THE POLICE 

OFFICER'S IMPROPER OUT-OF-COURT 

IDENTIFICATION OF DEFENDANT BEFORE THE 

JURY [WAS] IN VIOLATION OF THE COURT'S 

RULING [AND] DEPRIVED DEFENDANT OF A 

FAIR TRIAL. (Not Raised Below)

POINT III

THE TRIAL COURT'S ADMISSION OF N.J.R.E. 

404(B) EVIDENCE, INCLUDING ALLEGED 

THREATS BY DEFENDANT AND DEFENDANT 

LEAVING THE HEAT AND STOVE TURNED ON 

TO DRIVE UP GAS BILLS WAS ERRONEOUS, 

UNSUPPORTED BY AN ADEQUATE LIMITING 

INSTRUCTION[] AND DEPRIVED DEFENDANT 

OF A FAIR TRIAL.

POINT IV

THE FOUR-YEAR SENTENCE IMPOSED WAS 

MANIFESTLY EXCESSIVE AND AN ABUSE OF 

THE LOWER COURT'S DISCRETION.

Having considered these arguments in light of the record and applicable legal 

standards, we affirm.

II.

Motions for mistrial are "addressed to the sound discretion of the [trial]

court; and the denial of the motion is reviewable only for an abuse of discretion."
7

A-0936-17T4

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

original) (quoting State v. Winter, 96 N.J. 640, 647 (1984)). "The same 

deferential standard that applies to the mistrial-or-no-mistrial decision applies 

to review of the curative instruction itself." Ibid. (citing Winter, 96 N.J. at 647). 

An abuse of discretion will only be found when the judge denies the mistrial and 

provides an instruction when "the vice is plainly ineradicable by an instruction 

to the jury . . . ." Winter, 96 N.J. at 647.

In Herbert, we identified three factors to assist our review of the trial 

court's decision to issue a curative instruction instead of granting a motion for a 

mistrial or new trial. 457 N.J. Super. at 505-08. First, we consider "the nature 

of the inadmissible evidence the jury heard, and its prejudicial effect" because 

"[e]vidence that bears directly on the ultimate issue . . . may be less suitable to 

curative . . . instructions than evidence that is indirect . . . ." Id. at 505. However, 

the Court has said that even highly prejudicial evidence, like an expert opining 

about the defendant's guilt, is amenable to a curative instruction. See State v. 

Papasavvas, 163 N.J. 565, 614 (2000) (holding that the expert psychologist's 

opinion that defendant was guilty was cured by a swift, firm, and specific jury 

instruction).
8

A-0936-17T4

Second, we examine the "timing and substance" of the curative 

instruction, with prompt, firm, and specific instructions being preferred. 

Herbert, 457 N.J. Super. at 505-06. A curative instruction will generally "pass 

muster" so long as it is "firm, clear, and accomplished without delay." State v. 

Vallejo, 198 N.J. 122, 134-36 (2009) (citing numerous cases where swift, firm, 

and clear instructions cured the prejudice of inadmissible testimony).

Third, we explore whether there is "tolerance for the risk of imperfect 

compliance[,]" essentially determining whether the inadmissible evidence had a 

real possibility to lead the jury astray, akin to our reversible error analysis. 

Herbert, 457 N.J. Super. at 507-08 (citing Winter, 96 N.J. at 647-48).

Here, the State's witness inadmissibly testified to observing defendant in 

the videos. However, while identification was certainly an important contested 

fact, the judge's curative instruction has indicia of effectiveness. She issued it 

immediately, informed the jurors to reject the detective's identification, and

reaffirmed the jury's role, as finders of fact, to decide for themselves whether 

defendant was, in fact, the man depicted in the videos. Accordingly, the judge's 

decision to deny the motion for mistrial and instead issue a curative instruction

was a sound exercise of her discretion.
9

A-0936-17T4

Defendant's argument in Point II lacks sufficient merit to warrant 

extensive discussion. R. 2:11-3(e)(2). Prosecutors are permitted to make 

passionate and forceful presentations to jurors, constrained by the evidence and 

reasonable inferences drawn from the evidence. State v. Daniels, 182 N.J. 80, 

96 (2004). Here, the prosecutor's statement urging the jurors to conclude 

defendant appeared in the video was a legitimate comment on the evidence and 

a reasonable inference to be drawn therefrom. Moreover, the absence of any 

objection suggests the statement was not overtly inappropriate or inflammatory. 

See State v. Feaster, 156 N.J. 1, 86-87 (1998). We find no reversible error.

III.

"A trial court ruling on the admissibility of other-crimes evidence is a 

discretionary matter that receives 'great deference' and is reversible only if 

clearly erroneous." State v. Weaver, 219 N.J. 131, 149 (2014) (quoting State v. 

Gillispie, 208 N.J. 59, 84 (2011)). However, when the court does not engage in 

a Cofield analysis, we conduct plenary review to determine admissibility. State 

v. Barden, 195 N.J. 375, 391 (2008) (citing State v. Lykes, 192 N.J. 519, 534

(2007)).

Cofield provides that to be admissible, N.J.R.E. 404(b) evidence must be: 

(1) "relevant to a material issue"; (2) "similar in kind and reasonably close in 
10 A-0936-17T4

time" to the instant offense; (3) "clear and convincing"; and (4) its prejudice 

does not outweigh its probative value. 127 N.J. at 338. Defendant's threat to 

"set the truck on fire and drive it through the house" satisfies the first prong as 

it is highly probative of motive and intent. See State v. Rose, 206 N.J. 141, 162 

(2011). The second prong is not always applicable, State v. P.S., 202 N.J. 232, 

255 n.4 (2010) (quoting State v. Williams, 190 N.J 114, 131 (2007)), but here 

the threatened conduct implied arson and was temporally proximate, since it was 

made approximately one month before the fire. Although the judge failed to 

conduct an evidentiary hearing before trial, J.B.'s testimony at trial about the 

threat was subject to cross-examination, such that "the surrounding 

circumstances adequately support that the third prong of Cofield was satisfied." 

Rose, 206 N.J. at 163. Finally, the statement, while prejudicial, is highly 

probative. Therefore, the admission of evidence of defendant's prior threat was 

proper.

However, evidence of defendant's practice of leaving the stove on was 

irrelevant to any material issue in the case, and therefore, its obvious prejudice 

outweighed its non-existent probative value. The judge permitted the evidence 

by reasoning it was appropriate to rebut questions posed during crossexamination, i.e., that defense counsel had opened the door.
11 A-0936-17T4

However, that doctrine is "a rule of expanded relevancy and authorizes 

admitting evidence which otherwise would have been irrelevant and 

inadmissible in order to respond to (1) admissible evidence that generates an 

issue, or (2) inadmissible evidence admitted by the court over objection." State 

v. Prall, 231 N.J. 567, 582 (2018) (quoting State v. James, 144 N.J. 538, 554 

(1996)). The doctrine does not give the State carte blanche to introduce N.J.R.E. 

404(b) evidence and admission of such evidence is still subject to a balancing 

under N.J.R.E. 403. Id. at 583 (citing James, 144 N.J. at 554). For example, 

entering irrelevant evidence under the doctrine for the narrow purpose of 

bolstering a witness's credibility "does not satisfy the relevancy element of the 

Cofield test." Ibid. (citing State v. Skinner, 218 N.J. 496, 520 (2014)).

Here, the State sought to "explain why [defendant's wife] was behind [o]n 

her gas bill." The evidence was irrelevant, except to rehabilitate the witness, 

while its prejudicial character was obvious, given the nature of the charge. Its 

admission was a mistaken exercise of the judge's discretion, but it does not 

require reversal.

Not every admission at trial of inadmissible evidence is reversible error. 

Vallejo, 198 N.J. at 132. "[T]o warrant reversal of defendant's conviction, those 

errors, singly or collectively, must 'raise a reasonable doubt' as to whether they 
12 A-0936-17T4

affected the result reached by the jury." Prall, 231 N.J. at 588 (quoting State v. 

Macon, 57 N.J. 325, 336 (1971)). "Also, '[t]he error[s] must be evaluated in 

light of the overall strength of the State's case.'" Ibid. (alterations in original) 

(quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).

Here, evidence about defendant leaving the stove and heat on to drive up 

J.B.'s energy bills was irrelevant. However, it was introduced on re-direct after 

defense counsel had posed questions about the subject during crossexamination. As a result, its admission in this context limited the evidence's 

prejudicial nature. Given the overall strength of the State's case, we find no 

basis to reverse.

IV.

At sentencing, the judge found aggravating factors one, two, three, six, 

eight, and nine. See N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances of 

the offense, . . . including whether . . . it was committed in an especially heinous, 

cruel, or depraved manner"); (a)(2) (gravity and seriousness of the offense);

(a)(3) (risk of re-offense); (a)(6) (the extent of defendant prior criminal record); 

(a)(8) (defendant committed the offense against a "fireman"); and (a)(9) (the 

need to deter). She also found mitigating factors ten and eleven. See N.J.S.A. 

2C:44-1(b)(10) (defendant would likely respond to probation); and (b)(11)
13 A-0936-17T4

(imprisonment would impose hardship to defendant or his family). The judge 

gave moderate weight to aggravating factor one, finding the circumstances were 

exceptionally cruel or depraved because the possessions of defendant's children

were destroyed by the fire.

Defendant contends that the sentence is excessive because the judge 

misapplied aggravating factor one by "double-counting" an element of arson. 

See N.J.S.A. 2C:17-1(b)(2) (defining elements of arson as "purposely start[ing] 

a fire . . . [t]hereby recklessly placing a building or structure . . . in danger of 

damage or destruction"). We disagree and affirm the sentence.

Our review of a sentence "is relatively narrow and is governed by an abuse 

of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing 

State v. Jarbath, 114 N.J. 394, 401 (1989)). Generally, we only determine 

whether:

(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 

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)).]
14 A-0936-17T4

"Elements of a crime, including those that establish its grade, may not be 

used as aggravating factors for sentencing of that particular crime[,]" State v. 

Lawless, 214 N.J. 594, 608 (2013), because that would lead to impermissible 

double-counting. State v. Kromphold, 162 N.J. 345, 353 (2000). However, a 

court "does not engage in double-counting when it considers facts showing 

defendant did more than the minimum the State is required to prove to establish 

the elements of an offense." State v. A.T.C., 454 N.J. Super. 235, 254-55 (App. 

Div. 2018) (citing Fuentes, 217 N.J. at 75).

Here, the judge noted that defendant victimized his own children in 

addition to the intended victim, J.B. While the offense implicates the setting of 

a fire and destruction of property, the emotional impact inflicted on unintended

victims elevated the circumstance beyond what the State was required to prove.

Moreover, the judge only accorded factor one "moderate weight." And, 

there was substantial evidence in the record supporting her findings regarding 

the other aggravating factors, including defendant's extensive prior record. The 

judge imposed a sentence that was in the middle of the authorized sentencing 

range for a third-degree crime, and she imposed a concurrent sentence on 

defendant's other conviction. In short, there is nothing excessive about this 
15 A-0936-17T4

sentence, and, even if the judge's finding as to aggravating factor one was 

erroneous, the sentence does not shock our judicial conscience.

Affirmed.