SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2626-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDY R. TORRES, a/k/a 

ANDREW R. TORRES, and

ANDREW RUBIN TORRES,

Defendant-Appellant.

______________________________

Argued January 30, 2019 – Decided March 4, 2019

Before Judges Koblitz, Ostrer and Currier.

On appeal from Superior Court of New Jersey, Law 

Division, Warren County, Indictment No. 13-02-0051.

Lauren S. Michaels, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Lauren S. Michaels, of

counsel and on the brief).

Jennifer E. Kmieciak, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Jennifer E. Kmieciak, 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NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Andy R. Torres appeals from his convictions after trial of

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:15-1(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); first-degree 

felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and third-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(c). During the jury trial, the court

dismissed a charge of third-degree tampering with a witness, his girlfriend 

Alexis,

1 N.J.S.A. 2C:28-5(a)(1), and defendant was acquitted of first-degree 

murder, N.J.S.A. 2C:11-3(a)(1)(2). After the jury trial, he was convicted by the 

court of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-

7(b)(1). Defendant was sentenced to an aggregate term of forty-years

imprisonment, with eighty-five percent parole ineligibility under the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2. We reject defendant's claims of

reversible trial errors and affirm the convictions, but remand for resentencing.

Testimony at trial revealed the following. Several people heard a gunshot

at a BP gas station in Phillipsburg around midnight on January 5, 2012. Two

 

1

 We use first names when referring to Alexis and her brother, Zach, to avoid 

confusion and preserve their anonymity.
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witnesses described "two white guys" running from the gas station wearing 

similar jackets.

Lieutenant Ralph Reppert of the Phillipsburg Police Department arrived 

at the gas station, where he saw the attendant, lying in a pool of blood, shot once

through the thigh. He noticed a shotgun-style ammunition "wad" laying on the 

ground near the attendant's booth. The attendant had a significant injury to his 

right thigh, suffering damage to major blood vessels. He died on January 7, 

2012.

On January 11, 2012, the police located defendant and Alexis in a friend's 

home in Pennsylvania. The friend testified that defendant and Alexis were 

staying with her before the incident occurred. When the police arrived, she told 

them about defendant's shotgun and led them to the kitchen closet where it was 

located. She said that when she saw defendant put it there, she told "him to get 

that out of my house, I didn't want that in my house." It was loaded with two 

shells. Later testing revealed that it was functional. Defendant did not have a 

firearms purchaser identification card. Co-defendant David Beagell was taken 

into custody on January 25, 2012.

After receiving information from the victim's family, an officer went to 

pawn shops in Allentown looking for a twenty-two-carat gold wedding ring that 
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belonged to the victim. The police found the victim's ring at a pawn shop a fiveminute walk from the home where defendant was staying. The pawn shop owner

testified that defendant pawned a ring on January 9, 2012. The transaction 

required defendant to show a photo identification and provide a signature, which 

defendant did in his own name.

After defendant was arrested, he waived his Miranda2 rights and gave a 

statement regarding his involvement in the robbery and shooting. Defendant's 

statement was recorded, and the DVD of his statement was admitted into 

evidence and played for the jury.

In his statement, defendant said he gave his shotgun to Beagell. When 

they got into New Jersey, Beagell and Alexis's brother Zach stole a New Jersey 

license plate and put it on the car so that no one would know that they were from 

Pennsylvania. Defendant gave Beagell the shotgun and three shells; the shotgun 

was not loaded when defendant gave it to Beagell. The two men went behind 

the BP gas station while defendant and Alexis sat in the car.

Alexis later drove up to the gas station and asked the gas attendant for 

directions. Beagell and Zach came up from behind the attendant and Beagell 

 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
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put the shotgun up to his head and demanded money. The shotgun "literally 

touched the freaking guy's head." Defendant was scared it was going to go off, 

so he told Alexis to "get the fuck outta here." Alexis looked scared, but she 

drove off.

Defendant and Alexis drove around and saw Beagell and Zach in the 

parking lot of another station and picked them up. Then they drove back to 

Pennsylvania, where they divided the money from the robbery.

Defendant denied that he shot the gas station attendant. He claimed that 

he did not even know that the attendant had been shot until the next day when 

Beagell's girlfriend showed him a news article on her cell phone. He did not 

know where his shotgun was, but thought Beagell still had it, and he denied that 

the shotgun found was his. He also claimed he did not know anything about the 

attendant's missing ring.

The State then called Alexis, who took the stand and testified that 

defendant was her boyfriend. They were living together in January of 2012. She 

started testifying about being at her mother's house with defendant on January 

4, 2012, but then refused to testify further stating: "Listen, I can't do this. I 

can't. I don't want to. Take it back."
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At sidebar, the court and counsel had an extensive discussion on how to 

proceed. Ultimately, the court decided to adjourn Alexis's testimony to allow 

her an opportunity to consult with counsel.

The next day, the court advised Alexis of the consequences of her 

continued refusal to testify. When she was subsequently questioned by counsel, 

Alexis stated: "I don't want to testify," and "I don't want my plea." When asked 

by the court what she meant, Alexis stated, "I don't want to cooperate with the 

State." Alexis also stated that she made the decision not to testify on her own 

after speaking with counsel, and that her decision was not "influenced in any 

way by any threat or promise or inducement by any person, [defendant], or 

anybody else."

The court advised the prosecution to call the State's next witness "without 

further comment or without any comment to the jury as to what we've been doing 

this morning other than resolving legal issues." Defense counsel did not object 

or request any curative instruction.

Beagell testified for the State as part of a plea deal; the murder and felony 

murder charges against him were dismissed in exchange for his testimony 

against defendant. He had jumped out of a third-floor window of the house 
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when the police came and arrested defendant and Alexis on January 11, 2012. 

Beagell was not arrested until January 25, 2012.

Beagell testified to the following. On the evening of January 4, 2012, 

Beagell was in his room drinking alcohol and smoking marijuana when Zach

said that defendant and Alexis wanted to rob a house or a gas station. Defendant 

said he needed to pick up his shotgun and some clothes.

They then drove to the BP gas station in Phillipsburg and parked across 

the street. Alexis drove over to the gas station and asked the attendant for 

directions. While she was talking to the attendant, defendant and Zach "came 

up on the guy" from behind. Defendant pointed the shotgun at the attendant's 

head. Beagell "bugged out" and told Alexis "to hit the gas and go." Alexis 

drove off.

Defendant had the shotgun when he returned to the car. He took the shell 

out of the shotgun and said: "I shot the mother fucker." Defendant said 

something like: "I just shot him in his leg. It's going to be all right." Beagell 

also noticed that "[defendant] had a ring on his hand," which defendant said he

took from the gas station attendant.

After the State rested, defendant moved for a judgment of acquittal on the 

witness tampering charge, as well as a mistrial. The State did not object to the 
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dismissal of the witness tampering charge and the court entered a judgment of 

acquittal, but denied the motion for a mistrial.

Defendant testified in his defense that he was not involved in the planning 

of the robbery, and did not travel to the BP gas station with Beagell, Zach and 

Alexis. He claimed that he first learned of the robbery later that afternoon when 

he went looking for Alexis. Zach and Beagell "were both arguing amongst 

themselves, really loud, violently, about blaming each other for shooting the 

man."

The following Sunday, Alexis and Zach's mother:

pulled me into another room with Alexis and starting

[sic] speaking to me, asking me for my assistance, 

because she felt that if things were to arise to a point 

with the police involvement that [Beagell] would blame 

her son, [Zach,] so she asked me to help . . . . And she 

told me pretty much what I was to say in order to make 

sure that Zach wouldn't be in trouble.

She told defendant to tell the police that he was present during the robbery and 

had witnessed Beagell with the shotgun.

Defendant testified that he had lied to the police. The statement he gave 

implicating himself in the crimes was false. He said he could not remember "a 

lot of things" because he was "extremely high at the time." He admitted that the 
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shotgun in evidence was his, but claimed that it belonged to both him and Zach, 

and he did not know if it was used in the robbery.

He said he did not actually know who shot the victim, but he believed at 

the time that Beagell "was the type of guy" who would have done so. "He came 

across as that type of person." He admitted pawning a ring for $81, but claimed

he did not know whether the ring in evidence was the ring he had pawned. 

Alexis had given him "a bunch of jewelry that week" to pawn.

Defendant raises the following issues on appeal:

POINT I: THE COURT ABUSED ITS DISCRETION 

IN DENYING TORRES' MOTION TO SEVER THE 

WITNESS-TAMPERING CHARGE, EMPLOYING 

THE WRONG TEST AND FAILING TO APPLY AN 

N.J.R.E. 404(B) ANALYSIS. THEN, ONCE HIS CODEFENDANT/GIRLFRIEND REFUSED TO 

TESTIFY, AND THE TAMPERING CHARGE WAS 

DISMISSED, THE COURT WAS REQUIRED TO 

DECLARE THE REQUESTED MISTRIAL. 

ALTERNATIVELY, THE JUDGE'S FAILURE TO 

INSTRUCT THE JURY REGARDING HOW, IF AT 

ALL, IT COULD CONSIDER ALEXIS'S 

TESTIMONY AND BREAKDOWN, AND THE 

DISMISSED CHARGE, IN ITS CONSIDERATION 

OF THE REMAINING CHARGES WAS PLAIN 

ERROR.

A. THE DENIAL OF THE TAMPERING CHARGE 

DEPRIVED TORRES OF A FAIR TRIAL.

B. ONCE THE TAMPERING CHARGE WAS 

DISMISSED, THE COURT WAS OBLIGATED TO 
10 A-2626-15T2

DECLARE A MISTRIAL; THE FAILURE TO DO SO 

DENIED TORRES A FAIR TRIAL.

C. THE FAILURE TO PROVIDE THE JURY ANY 

GUIDANCE ABOUT ALEXIS' EMOTIONAL

BREAKDOWN AND HER TESTIMONY WAS 

PLAIN ERROR THAT DENIED TORRES A FAIR 

TRIAL.

POINT II: TORRES' TRIAL WAS INFECTED WITH 

IMPROPER OTHER-CRIMES EVIDENCE 

INCLUDING THAT DEFENDANT: WAS ON 

PROBATION AT THE TIME OF THE OFFENSE; 

HAD PREVIOUSLY COMMITTED A BAD ACT 

INVOLVING SOMEONE'S DAUGHTER WHO HAD 

BEEN LEFT AT HOME; AND HAD CHOKED HIS 

CO-DEFENDANT GIRLFRIEND, WHO WAS A 

STATE WITNESS. 

POINT III: THE COURT'S REFUSAL TO HAVE 

THE CO-DEFENDANT/GIRLFRIEND, WITH 

WHOM THE STATE ALLEGED DEFENDANT HAD 

TAMPERED AS A WITNESS, TESTIFY IN 

CIVILIAN CLOTHES VIOLATED THE SUPREME 

COURT'S MANDATE IN STATE v. KUCHERA.

POINT IV: THE PROSECUTOR COMMITTED 

PROSECUTORIAL MISCONDUCT AND 

VIOLATED TORRES' RIGHT TO 

CONFRONTATION BY REFERRING IN HIS 

OPENING STATEMENT TO THE EXISTENCE OF A 

NON-TESTIFYING ANONYMOUS INFORMANT 

WHO ALLEGEDLY IMPLICATED TORRES.

POINT V: THE CUMULATIVE EFFECT OF THE 

AFOREMENTIONED ERRORS DENIED TORRES A 

FAIR TRIAL.
11 A-2626-15T2

POINT VI: A REMAND FOR RESENTENCING IS 

REQUIRED BECAUSE THE JUDGE ERRED IN 

FINDING AND WEIGHING AGGRAVATING AND 

MITIGATING FACTORS, AND IMPOSED 

DUPLICATE MONETARY PENALTIES.

I.

In point I of his brief, defendant contends that the trial court erred in its 

handling of the witness tampering charge by denying his motion to sever the 

witness tampering charge, denying his request for a mistrial after the tampering 

charge was dismissed, and failing "to provide the jury any guidance about 

Alexis' emotional breakdown and her testimony."

A. Motion to Sever

Defendant argues that the trial court did not conduct the proper analysis 

under N.J.R.E. 404(b) before denying his severance motion. According to 

defendant, "[t]he tampering charge fails both the third and fourth prongs" of the 

test established in State v. Cofield, 127 N.J. 328, 338 (1992).

Any error in failing to sever was harmless because no evidence of witness 

tampering was presented to the jury, and the claim was ultimately dismissed. 

While defendant argues that he was prejudiced by the prosecutor's reference to 

Alexis's anticipated testimony in his opening statement, the prosecutor's remarks 

are not evidence to be considered by the jury, and the jury was so instructed. 
12 A-2626-15T2

The jury is presumed to have understood and followed that instruction. State v. 

Feaster, 156 N.J. 1, 65 (1998); see also State v. T.J.M., 220 N.J. 220, 237 (2015) 

(appellate courts "act on the belief and expectation that jurors will follow the 

instructions given them by the court").

B. Motion for Mistrial

Next, defendant contends that the court erred by failing to grant a mistrial 

after Alexis refused to testify and the witness tampering charge was dismissed. 

He argues that "[t]he allegation that [he] tampered with Alexis as a witness 

infected the entire trial." First, he claims he was prejudiced by the prosecutor's 

reference to Alexis's anticipated testimony in his opening statement. Second, 

"Alexis's display in front of the jury, and the tampering accusations that hung 

over the entire trial, dismissal notwithstanding, denied him the opportunity to 

have the jury fairly evaluate [his] viable defense." According to him, "if [he] 

could have presented his defense without the implication that he had threatened 

or otherwise tampered with Alexis, there is a reasonable probability that they 

would have believed this testimony, or concluded that a reasonable doubt 

existed."

"A mistrial is an extraordinary remedy" that should be employed "[o]nly 

when there has been an obvious failure of justice . . . ." State v. Mance, 300 N.J. 
13 A-2626-15T2

Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant 

of a mistrial depends on the specific facts of the case and the sound discretion 

of the court." State v. Allah, 170 N.J. 269, 280 (2002). When "the court has an 

appropriate alternative course of action" it should deny the request. Id. at 281. 

The decision to grant or deny a mistrial is within the trial court's "sound 

discretion" and "will not be reversed absent a clear showing of prejudice to 

defendant." State v. Provoid, 110 N.J. Super. 547, 558 (App. Div. 1970).

During his opening statement, the prosecutor said: "Now the charges, as 

you heard, also include witness tampering, and you're going to hear testimony 

from Alexis . . . that after this [the robbery and shooting] happened [defendant] 

went reaching out to her, asking her to change her testimony and change her 

statement, and that ladies and gentlemen, establishes witness tampering."

A prosecutor may state in his opening facts he intends in good faith to 

prove by competent evidence, and the "[f]ailure of proof to meet expectations is 

not cause for reversal 'unless allegations . . . are completely unsupported by the 

evidence and there is a showing of prejudice to the defendant and bad faith by 

the prosecutor.'" State v. McAllister, 41 N.J. 342, 351 (1964) (quoting State v. 

Hipplewith, 33 N.J. 300, 309 (1960)); see also State v. Burns, 192 N.J. 312, 333-

34 (2006) (in determining whether a witness's refusal to testify at trial unduly 
14 A-2626-15T2

prejudiced a criminal defendant, a reviewing court should consider whether 

there was any misconduct or improper motive in prosecutor's decision to call 

witness).

Here, the court correctly pointed out that the prosecutor acted in good faith 

by commenting on the expected testimony of Alexis in his opening statement 

and by calling her to the stand. Alexis's failure to testify as expected was 

through no fault of the State, and the prosecutor reasonably expected Alexis to 

honor the terms of her plea agreement. Additionally, the court properly 

determined that any alleged prejudice from the prosecutor's opening remarks 

would be sufficiently remedied by a curative instruction reminding the jury that 

the prosecutor's remarks are not evidence to be considered by them in their 

deliberations.

C. Failure to Provide, Sua Sponte, an Additional Instruction

Finally, defendant argues for the first time on appeal that the court's failure 

to provide the jury any guidance about Alexis's "emotional breakdown and her 

testimony" was plain error.

During the charge conference, defense counsel requested that the court 

instruct the jury that the witness tampering charge "is no longer available for 
15 A-2626-15T2

their consideration" and that "defendant has, in fact, been acquitted of witness 

tampering." In doing so, he argued:

I think in the context of this case, with the appearance 

of [Alexis] and her partial testimony and the State's 

opening to the effect that the defendant, at least by the 

State's theory, had done something to dissuade [Alexis]

from testifying, the only way to undo -- I'm not sure it 

does undo it totally -- but the only way to begin to undo 

that prejudice is to tell the jury that the [c]ourt has 

acquitted [defendant] of [witness tampering].

The court agreed and told the jury: "Now, the fact that I have entered a 

judgment of acquittal, in other words, found Mr. Torres not guilty of that charge 

as a matter of law, should not influence you or become a part of your discussion 

or decision making on the balance of the charges."

Because defendant did not object below, this issue is reviewed for plain 

error, and reversal is unwarranted unless the error was "of such a nature as to 

have been clearly capable of producing an unjust result." R. 2:10-2. Plain error

in the context of a jury charge is "[l]egal impropriety in the charge prejudicially 

affecting the substantial rights of the defendant sufficiently grievous to justify 

notice by the reviewing court and to convince the court that of itself the error 

possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 

N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). No 

further instruction was needed here.
16 A-2626-15T2

II.

In point II of his brief, defendant contends that the court erred by denying 

his mistrial requests related to the improper admission of other bad-acts 

evidence. He argues that evidence "had no legitimate purpose and served only 

to suggest that [he] had a propensity for criminality and violence."

A. Reference to Defendant's Probation

Detective Cruz testified about his involvement in the investigation. Cruz

volunteered: "Well, Mr. Torres had an outstanding probation[.]"

Defense counsel immediately requested a mistrial. The prosecutor 

represented to the court that he had advised Cruz that he should not mention any 

outstanding warrants. The court found Cruz's mention of probation was an 

"innocent error." The court ruled that a mistrial was not necessary and that a 

curative instruction was sufficient to alleviate the alleged prejudice. Defense 

counsel "strongly" objected to any such instruction, arguing that it would only 

"enhance the testimony."

"[A] trial is not a perfectly scripted and choreographed theatrical 

presentation; rather, it is an extemporaneous production whose course is often 

unpredictable given the vagaries of the human condition." State v. Yough, 208 

N.J. 385, 397 (2011). "Attorneys will sometimes pose inartfully crafted 
17 A-2626-15T2

questions, and even the most precise question may bring an unexpected response 

from a witness." Ibid. A mistrial should only be granted "to prevent an obvious 

failure of justice," and the decision to grant a mistrial is entrusted to the "sound

discretion of the trial court." State v. Smith, 224 N.J. 36, 47 (2016) (quoting 

State v. Harvey, 151 N.J. 117, 205 (1997)). "[A]n appellate court will not 

disturb a trial court's ruling on a motion for a mistrial, absent an abuse of 

discretion that results in a manifest injustice." Harvey, 151 N.J. at 205.

We do not find reversible error regarding the comment made by Detective 

Cruz. The trial court had the "feel of the case" and was in the best position "to 

gauge the effect of a prejudicial comment on the jury in the overall setting." 

State v. Winter, 96 N.J. 640, 646-47 (1984). 

B. Redaction Mistake

In part of his statement to police, defendant said:

I give the fucking gun to Dave, cause he's showed me 

guns that he's had before. He had a fucking .357 snub 

nose, the only reason I know that is because he fucking 

gave me every detail about it, it was chrome or black 

(INAUDIBLE) . . . he had a .45, like I don't fuck with 

guns, I don't like guns. I like to fight. I gave him the 

gun. We left. We went back to Michelle's house for a 

little bit, hung out. Everyone smoked, calmed down or 

whatever. I didn't wanna go at first, I really didn't. I 

don't like breaking into people's houses, because I used 

to do that when I was young and I was living in Las 

Vegas.
18 A-2626-15T2

[Detective]:M-hm.

[Defendant]: And when I did that, the people left their 

daughter home and ever since then I refused to do that 

shit. We go to fucking Jersey. Me and my fucking 

girlfriend are sitting in this fucking car. I'm telling her, 

yo, let's just fucking leave. If they wanna fucking sit 

here, let 'em sit here. The gun's not under my name. 

It's fucking illegal. If they get caught they get caught. 

She's like no, that's my little brother. And I understand 

that. 

[(emphasis added).]

The court ruled that the two emphasized sections would be redacted. 

When defendant's statement was played for the jury, however, only the first 

emphasized portion was redacted. The second portion, "and when I did that, the 

people left their daughter home and ever since then I refused to do that shit," 

was inadvertently left in and heard by the jury. Defense counsel immediately 

moved for a mistrial. In denying defendant's application, the court explained 

that the second statement standing alone "makes no sense" and thus, although 

mistakenly left in by the State, is not a mistake "of sufficient magnitude" to 

result in a mistrial. The court did not abuse its discretion by failing to declare a 

mistrial under these circumstances.

C. The Prosecutor's Cross-Examination of Defendant
19 A-2626-15T2

During his direct testimony, defendant said that he lied to police about his 

involvement in the armed robbery because he "loved Alexis." On crossexamination, the prosecutor asked, "You loved Alexis so much you tried to 

choke her, right, right after this happened?" and defendant answered, "No." 

Defense counsel immediately objected, stating "that's false," and that "it should 

never have been introduced into this case." At sidebar, defendant requested a 

mistrial, arguing that the question was "totally improper."

The prosecutor responded that, during his statement to the police, 

defendant said, "I just fought with my girlfriend. Okay. I literally just put my 

hands on her. I didn't punch her or anything, but I did grip her up." The court 

sustained the objection, but denied a mistrial, advising counsel that it would tell 

the jury that defendant's objection was sustained. It then instructed the jury that 

the objection was sustained.

The court then told the prosecutor that he could proceed with the crossexamination, but requested that he "rephrase the question." Defendant explained 

that he did put his hands on Alexis, but "[n]ot in the manner you're speaking." 

He said he put his hands "on her shoulders" and "gripped them . . . [h]ard enough 

to grab her attention."
20 A-2626-15T2

"If [a criminal defendant] takes the stand and testifies in his own defense 

his credibility may be impeached and his testimony assailed like that of any 

other witness . . . ." Brown v. United States, 356 U.S. 148, 154–56 (1958) 

(quoting Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)).

Defendant had the opportunity to explain fully what happened and was 

not unduly prejudiced by the question on cross-examination. Defendant denied 

that he choked Alexis, and the court sustained defense counsel's objection to the 

prosecutor's original question. The trial court did not err in denying defendant's 

motion for mistrial. See State v. LaBrutto, 114 N.J. 187, 207 (1989) ("motions 

for mistrial based on misconduct should be granted only where manifest 

injustice would otherwise result"); see also State v. Ribalta, 277 N.J. Super. 277, 

291 (App. Div. 1994) ("A mistrial is an extraordinary remedy and should be 

resorted to only to prevent an obvious failure of justice.").

III.

In point III of his brief, defendant contends the court erred by permitting 

Alexis, a State witness, to testify in prison garb. Prior to Alexis taking the stand, 

the court informed counsel that she was wearing prison garb. Defense counsel 

objected and requested that she be permitted to testify in civilian clothes, 

arguing "her appearance in prison garb might engender sympathy for her."
21 A-2626-15T2

The court did commit error by permitting Alexis to testify in prison garb, 

but not reversible error. Our Supreme Court has held that to preserve a criminal 

defendant's constitutionally protected right to a fair trial, "a trial court may not 

require a defendant's witness to appear at trial in prison garb." State v. Artwell, 

177 N.J. 526, 533, 539 (2003) (referring to U.S. Const. amends. V, VI, and XIV; 

N.J. Const. art. I, ¶ 10)).

In State v. Kuchera, 198 N.J. 482, 485-86 (2009) our Supreme Court 

determined that witnesses for both parties should not testify in prison garb. The 

Kuchera Court, however, acknowledged that there may be exceptions to that 

general rule:

Finally, whether a witness testifies wearing prison garb 

will be subject to review under the abuse of discretion 

standard and will be gauged as whether it constitutes 

harmless error, that is, whether the error "'is of such a 

nature as to have been clearly capable of producing an 

unjust result.'" State v. Castagna, 187 N.J. 293, 312 

(2006) (quoting R. 2:10-2; editing marks omitted).

[Id. at 501.]

Here, the court misapplied its discretion by, without explanation, denying 

defense counsel's request that Alexis appear wearing civilian clothes, deviating

from the general rule that such witnesses appear in civilian clothes. See id. at 

500-01; see also Artwell, 177 N.J. at 539. The court also erred by failing to 
22 A-2626-15T2

instruct the jury that Alexis's appearing in prison garb should play no role in 

weighing the evidence and determining defendant's guilt. See Kuchera, 198 N.J. 

at 501.

However, both errors were harmless beyond a reasonable doubt. See R.

2:10-2; see also Kuchera, 198 N.J. at 501; Castagna, 187 N.J. at 312. Defendant

was not prejudiced because the witness tampering charge was dismissed and 

Alexis did not provide any inculpatory testimony against defendant.

IV.

In point IV of his brief, defendant contends he was entitled to a mistrial 

because the prosecutor's opening statement improperly stated that law 

enforcement received an anonymous tip that implicated him in the robbery and 

homicide. He argues the prosecutor committed prosecutorial misconduct and 

violated his Sixth Amendment right to confrontation by referring to the 

existence of a non-testifying anonymous informant who allegedly implicated 

him in the crimes.

During his opening statement, the prosecutor said:

So now an investigation begins, right? I mean you have 

a body, they know that the individual, you can tell by 

the wound that the individual was shot with a shotgun, 

and we put out a flyer, we start asking around, and it 

was some time, a few days, before we got a break in the 

case, when an anonymous tip came in about some 
23 A-2626-15T2

individuals who they believed were involved in this 

crime. And law enforcement followed up on that 

anonymous tip, and it led us to Zach, Alexis . . . , Dave 

Beagell[.]

The court denied defense counsel's application for a mistrial, determining 

that "extreme remedy" was "not necessary or appropriate under these 

circumstances."

Defense counsel requested that the court not advise the jury of his 

objection "because that's only going to ring the bell a bit harder." As a result, 

the court instructed the jury as follows: "Ladies and gentlemen you are 

reminded that what the attorneys say in their opening statements is not evidence. 

The evidence will come from the witnesses and the documents and other 

physical items which may be introduced for your consideration."

In considering the issue of prosecutorial misconduct, we must first 

determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). 

Where such misconduct is identified, reversal is not warranted unless the 

misconduct is so egregious that it deprived the defendant of a fair trial. State v. 

Timmendequas, 161 N.J. 515, 575 (1999).

During an opening statement, the prosecutor is permitted to refer to the 

facts he or she intends in good faith to prove by competent evidence. State v. 

Wakefield, 190 N.J. 397, 442 (2007). A prosecutor is given great leeway and is 
24 A-2626-15T2

allowed to be forceful. State v. Pindale, 249 N.J. Super. 266, 285 (App. Div. 

1991).

Defendant argues that the prosecutor's opening statement violated his 

Sixth Amendment right to confrontation. "A defendant's right to confront and 

effectively cross-examine the State's witnesses is essential to the due process 

right to a 'fair opportunity to defend against the State's accusations,' and is one 

of 'the minimum essentials of a fair trial.'" State v. Gilchrist, 381 N.J. Super. 

138, 144 (App. Div. 2005) (quoting Chambers v. Mississippi, 410 U.S. 284, 294 

(1973)).

It is well settled that the hearsay rule is not violated 

when a police officer explains the reason he approached 

a suspect or went to the scene of the crime by stating 

that he did so "upon information received." 

[McCormick on Evidence (2d ed. 1972), § 248, p. 587]. 

Such testimony has been held to be admissible to show 

that the officer was not acting in an arbitrary manner or 

to explain his subsequent conduct. However, when the 

officer becomes more specific by repeating what some 

other person told him concerning a crime by the 

accused the testimony violates the hearsay rule. 

Moreover, the admission of such testimony violates the 

accused's Sixth Amendment right to be confronted by 

witnesses against him.

[State v. Bankston, 63 N.J. 263, 268 (1973) (citations 

omitted).]
25 A-2626-15T2

A specific hearsay statement is not required in order to create an 

impermissible inference of guilt. State v. Irving, 114 N.J. 427, 446 (1989); State 

v. Torres, 313 N.J. Super. 129, 157 (App. Div. 1998). "When the logical 

implication to be drawn from [a witness's] testimony leads the jury to believe 

that a non-testifying witness has given the police evidence of the accused's guilt, 

the testimony should be disallowed as hearsay." Bankston, 63 N.J. at 271; see

also Branch, 182 N.J. at 352 (phrase "based on information received" may be 

used by police officers to explain their actions, but only if necessary to rebut a 

suggestion that they acted arbitrarily and where use of that phrase does not create 

an inference that defendant was implicated in a crime by some unknown person); 

State v. Dehart, 430 N.J. Super. 108, 110-11 (2013) (holding it was plain error 

for a police officer to provide hearsay testimony explaining why he included 

defendant's photograph in a photo array and for the prosecutor to highlight that 

testimony in summation). It is the creation of the inference, not the specificity 

of the statements made, that determines whether the hearsay rule was violated. 

Irving, 114 N.J. at 447. Nevertheless, the erroneous admission of such 

testimony is not automatic grounds for reversal, and it may be assessed under 

the harmless error standard. Bankston, 63 N.J. at 272-73.
26 A-2626-15T2

"The principle distilled from Bankston and its progeny is that testimony 

relating inculpatory information supplied by a co-defendant or other nontestifying witness identifying the defendant as the perpetrator of a crime 

deprives the accused of his or her constitutional rights." State v. Farthing, 331 

N.J. Super. 58, 75 (App. Div. 2000); see also Bankston, 63 N.J. at 265, 268 

(holding detective violated hearsay rule by testifying that he received 

information from an informant that an individual had narcotics in his possession, 

and then went to a tavern where he saw and arrested the defendant who fit the 

informant's description); State v. Taylor, 350 N.J. Super. 20, 34-35 (App. Div. 

2002) (holding that the police officer's statements about what various 

unidentified eyewitnesses told the police about the suspect were inadmissible 

hearsay because they were offered to elicit accusations against the defendant by 

non-testifying witnesses); State v. Thomas, 168 N.J. Super. 10, 13-15 (App. Div. 

1979) (reversing defendant's conviction where prosecutor elicited testimony 

from detective which led to "inescapable inference" that informant had given 

him the defendant's name, leading the jury to believe that the unidentified 

informant told the detective that the defendant committed a crime).

Defendant's reliance on Bankston, Branch, and Dehart is misplaced as all 

three are distinguishable on their facts. Unlike in Bankston, Branch, and Dehart, 
27 A-2626-15T2

defendant is not challenging the admission of hearsay testimony, but rather, is 

complaining about the prosecutor's opening statement. At trial, an officer 

testified only that law enforcement received additional information that led to 

Pennsylvania, where they sought to speak with defendant, Alexis, and Zach. 

The jury was repeatedly told that the prosecutor's opening statement is not 

evidence. The jury is presumed to have understood and followed that 

instruction. Feaster, 156 N.J. at 65; T.J.M., 220 N.J. at 237.

The decision to grant a mistrial rests within the sound discretion of the 

trial court. State v. Harris, 181 N.J. 391, 518 (2004). We defer "unless there 

[was] a clear showing of mistaken use of discretion by the trial court," 

Greenberg v. Stanley, 30 N.J. 485, 503 (1959), or unless "manifest injustice 

would . . . result." LaBrutto, 114 N.J. at 207. The prosecutor's remarks were 

not evidentiary, and the jury was so instructed. See T.J.M., 220 N.J. at 237; 

Feaster, 156 N.J. at 65. A mistrial was not required after the prosecutor's 

opening statement.

V.

In point V of his brief, defendant argues that even if none of the individual 

errors cited in points I through IV above warrant reversal standing alone, the 
28 A-2626-15T2

cumulative effect of the cited errors warrants reversal and the granting of a new 

trial.

"[A] defendant is entitled to a fair trial but not a perfect one." State v. 

Marshall, 123 N.J. 1, 169-70 (1991). It is well recognized that "incidental legal 

errors, which creep into the trial but do not prejudice the rights of the accused

or make the proceedings unfair, may [not] be invoked to upset an otherwise 

valid" verdict. State v. Orecchio, 16 N.J. 125, 129 (1954). The cumulative error 

doctrine requires the granting of a new trial before an impartial jury when legal 

errors are either of such a magnitude that defendant has been prejudiced or have 

in the aggregate rendered the trial unfair. Ibid.; see also State v. Reddish, 181 

N.J. 553, 615 (2004) ("[A]lthough an error or series of errors might not 

individually amount to plain error, in combination they can cast sufficient doubt 

upon the verdict to warrant reversal.").

When a defendant raises a claim of cumulative error, the court must assess 

whether the defendant received a fair trial by considering "the impact of the trial 

errors on defendant's ability fairly to present a defense, and not just excuse error 

because of the strength of the State's case." State v. Jenewicz, 193 N.J. 440, 473 

(2008).
29 A-2626-15T2

The officer's reference to the fact that defendant was on probation was 

improper and could have prejudiced his defense. However, the reference to 

probation was fleeting and unprovoked by the prosecutor. The prosecutor's 

opening statement reference to an anonymous tip was also not proper. These

errors were not significant to the outcome of the trial.

Additionally, allowing Alexis to testify in prison garb and failing to 

provide a curative jury instruction regarding her appearance was error, but that 

error did not prejudice defendant because the witness tampering charge was 

dismissed and Alexis did not provide any inculpatory evidence against him on 

the other charges. These errors in combination did not deprive defendant of a

fair trial.

VI.

In point VI of his brief, defendant contends the court erred by imposing 

an excessive sentence. He argues that because the court erred "in finding and 

weighing aggravating and mitigating factors, particularly in finding aggravating 

factor one, a remand for resentencing is required." Additionally, the State

concedes, a "remand is also required because despite only three offenses 

remaining after merger, the court mistakenly imposed four sets of monetary 

penalties."
30 A-2626-15T2

The court sentenced defendant to a forty-year term of imprisonment under 

NERA on the felony murder conviction, after merging the conspiracy, 

possession of a weapon for an unlawful purpose and robbery into the felony 

murder conviction; a concurrent four-year term on the unlawful possession of a 

weapon; and a concurrent seven-year term on the certain persons not to have a 

weapon charge.

3

The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1), "[t]he 

nature and circumstances of the offense, and the role of the actor therein, 

including whether or not it was committed in an especially heinous, cruel, or 

depraved manner"; three, N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant 

will commit another offense"; six, N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the 

defendant's prior criminal record and the seriousness of the offenses of which 

he has been convicted"; and nine, N.J.S.A. 2C:44-1(a)(9), "[t]he need for 

deterring the defendant and others from violating the law." The court did not 

find any mitigating factors and, as a result, determined the aggravating factors 

"clearly and convincingly predominate."

The court explained why it found aggravating factor one:

The language of [a]ggravating [f]actor [one] says

including whether or not committed in an especially 

 

3

 Defendant, born in 1989, will become eligible for parole at age fifty-six.
31 A-2626-15T2

heinous, cruel or depraved manner. I don't get that far 

because I do not have to. The circumstances of this 

offense are such that the phrase "senseless murder" 

applies here in spades. . . . There was no reason for [the 

victim] to die alone in a pool of his own blood on the 

floor of this convenience store [sic]. The robbery was 

completed. His shooting was an act of braggadocio. In 

point of fact one of the witnesses said this defendant 

entered the car and said "I shot the motherfucker." . . . 

But whoever shot [the victim] did so senselessly, just 

to be able to get in the car and tell his cohorts "I shot 

the motherfucker. But don't worry, he's not going to 

die, I only shot him in the leg." . . .

The guy's done, the money's in the pockets. At least 

one of the actual armed robbers has already exited the 

store [sic], when he is shot and dies three days later, as 

a consequence.

"An appellate court should disturb the sentence imposed by the trial court 

only in situations where the sentencing guidelines were not followed, the 

aggravating and mitigating factors applied by the trial court are not supported 

by the evidence, or applying the guidelines renders a particular sentence clearly 

unreasonable." State v. Roach, 146 N.J. 208, 230 (1996).

"[A]ggravating factor one must be premised upon factors independent of 

the elements of the crime and firmly grounded in the record." State v. Fuentes, 

217 N.J. 57, 63 (2014); see also State v. O'Donnell, 117 N.J. 210, 215 (1989). 

(factor one applied in a manslaughter case because the defendant intentionally 

inflicted pain and suffering in addition to causing death); State v. Soto, 340 N.J. 
32 A-2626-15T2

Super. 47, 71-72 (App. Div. 2001) (factor one applied in an aggravated 

manslaughter and felony murder case where the defendant brutally and viciously 

attacked the victim).

Here, the sentencing court improperly considered the "murder" of the 

victim in finding aggravating factor one. The court described the murder as 

"senseless" and "an act of braggadocio." Defendant, however, was acquitted of 

purposeful and knowing murder, and the court therefore admittedly did not know 

who fired the fatal shot. Thus, the lack of a reason for the killing should not 

have been considered as an aggravating factor. See State v. Rogers, 236 N.J. 

Super. 378, 387 (App. Div. 1989) ("Although a defendant may be vicariously 

accountable for the crimes his accomplice commits, he is not vicariously 

accountable for aggravating factors that are not personal to him.").

The court also engaged in prohibited "double counting" by considering 

the death of the victim as an aggravating factor. A court may not consider one 

of the required elements of the offense charged as an aggravating factor. See

State v. Yarbough, 100 N.J. 627, 633 (1985) (facts that the legislature has 

incorporated into the Code as part of the original grading of the offense are not 

to be weighed as aggravating and mitigating factors to arrive at the appropriate 

sentence); see also State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984) 
33 A-2626-15T2

(where a specific fact is an essential element of a crime, "that element may not 

be used as an aggravating factor to impose a custodial sentence that is longer 

than the presumptive term or to impose a period of parole ineligibility").

"It is well-settled that where the death of any individual is an element of 

the offense, that fact cannot be used as an aggravating factor for sentencing 

purposes." State v. Carey, 168 N.J. 413, 425 (2001). Because defendant was 

convicted of felony murder, the fact that the victim died should not have been 

considered as an aggravating factor.

We affirm the convictions, but remand for another sentencing hearing 

without consideration of aggravating factor one at which the court should set 

appropriate monetary penalties. We do not retain jurisdiction.