SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0358-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE R. CADY,

Defendant-Appellant.

______________________________

Argued January 14, 2020 – Decided February 12, 2020

Before Judges Hoffman, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 13-06-0597.

Alan Dexter Bowman argued the cause for appellant.

Michele C. Buckley, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Lyndsay V. Ruotolo, Acting Union 

County Prosecutor, attorney; Frank L. Valdinoto,

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Defendant Eugene Cady was tried before a jury and found guilty of firstdegree murder and other offenses, as charged in a Union County indictment. 

Defendant appeals from the judgment of conviction entered by the trial court. 

We affirm.

I.

In Indictment No. 13-06-0597, defendant was charged with the firstdegree murder of Kason Wilson, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); 

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count 

two); and second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a) (count three).

The indictment stems from a shooting. On August 21, 2011, Officer 

James Edgar of the Linden Police Department responded to the 900 block of 

Union Street in Linden at approximately 10:50 p.m., after receiving a call of 

possible gunshots. Upon arrival, Edgar observed a man dead in the street with 

three bullet wounds. He recognized the man from the community as Kason 

Wilson. Edgar also observed three spent shell casings, a spent projectile, and a 

small amount of brain matter near the man's body in the street.

We derive our facts from the testimony presented at trial. Earlier in the 

night following a birthday party in Linden, defendant, a member of the Rollin 
3

A-0358-17T4

30's Crips gang, took a nine-millimeter handgun from a closet in the apartment 

where the party was held. He walked up to the victim on Union Street, shook 

his hand, and asked, "[y]ou remember me?" before pulling out a gun and 

shooting him three times—once in the chest and, as the victim fell to the ground, 

twice in the back of the head.

After the shooting, defendant and an individual known as Loco, a Crips 

gang member and a subordinate of defendant, returned to the apartment. 

Defendant told several individuals at the apartment that he walked up to the 

victim on Union Street, and shook his hand, before stating, "[y]ou remember 

me?"

Following the incident, Dyanne Simons spoke to defendant in the 

apartment. She told defendant Wilson was killed around the corner, and 

defendant answered, "[y]eah, I know. I did that." Another Rollin 30's Crips 

member, Anthony Pearson, attended the birthday party. After defendant and 

Loco left the apartment, Pearson heard two gunshots. Ultimately, defendant was 

arrested on September 5, 2011.

At trial, the State called Lieutenant Michael Sanford, a ballistics expert, 

to testify. Sanford performed a "bullet identification" analysis and opined that 

the bullet projectiles recovered next to Wilson's body correlated to a homicide 
4

A-0358-17T4

in Elizabeth and came from the same gun. Defense counsel objected to Sanford's 

testimony and requested a cautionary instruction to the jury regarding evidence 

related to the firearm. The trial court provided a cautionary instruction to the 

jury, which was not objected to by defense counsel. The clarifying instruction 

stated:

The witness testified that the firearm, he believes, was 

utilized in a prior homicide in Elizabeth, New Jersey. 

Mr. Cady is not being charged with that homicide. You 

are not to consider that aspect of the testimony in any 

regard as to the charges at issue in this case. The fact, 

that is the asserted fact that the firearm may have been 

utilized in a separate homicide, may be testified to in

more proper context through additional witnesses, but I 

want you to know now there's no allegation and there 

will be no proofs offered in this case that Mr. Cady 

utilized that firearm in the Elizabeth homicide.

Sergeant Gary Webb, who was employed by the Union County 

Prosecutor's Office, was assigned to the Guns, Gangs, Drugs, and Violent 

Crimes Task Force. Webb testified about the Rollin 30's Crips and the G-Shine 

Bloods' gang activity, organization, and hierarchy. He confirmed defendant was 

a member of the Rollin 30's Crips, and the victim "was believed to be the 

highest-ranking G-Shine Blood on the street in Linden."

The State also subpoenaed Milad Shenouda, a member of the Rollin 60's 

Crips, to testify. In August of 2012, Shenouda and defendant shared a prison 
5

A-0358-17T4

cell at the Union County jail. Shenouda knew defendant as "Lil-490." Shenouda 

testified that defendant informed him that he was a member of the Rollin 30's 

Crips, and that he murdered Kason Wilson, a "G-Shine Blood," near the tracks 

in Linden.

Following a sixteen-day trial, a jury found defendant guilty on all counts. 

The trial judge sentenced defendant to forty-two years of imprisonment subject 

to a mandatory eighty-five percent period of parole ineligibility under the No 

Early Release Act (NERA), N.J.S.A. 2C:43.7.2, for the murder conviction, and 

to concurrent seven-year terms with forty-two months of parole ineligibility for 

the weapons offenses.

After the trial court sentenced defendant, he filed this appeal.1 He presents 

the following arguments for consideration:

POINT I.

THE TRIAL COURT ERRED IN ADMITTING AN 

UNRELIABLE EXPERT OPINION THAT THE 

THREE PROJECTILES RECOVERED HEREIN 

WERE FIRED FROM THE SAME WEAPON USED 

IN A PRIOR HOMICIDE IN ELIZABETH.

a. INTRODUCTION.

1. THE INADMISSIBLE EVIDENCE.

1

 On October 11, 2017, defendant filed an amended notice of appeal.
6

A-0358-17T4

2. THE LACK OF FOUNDATION.

b. THE "SAME GUN" EVIDENCE SHOULD 

HAVE BEEN EXCLUDED.

1. THE UNRELIABLE EXPERT 

EVIDENCE.

2. THE LAW AS TO RELEVANT 

EVIDENCE.

POINT II.

THE STATE'S PROFILING AND CONCOMITANT 

ACCUSAL OF A BLACK FEMALE JUROR AS 

HAVING IMPROPER CONTACT WITH ANOTHER 

PERSON OUTSIDE THE COURTHOUSE DENIED 

APPELLANT A FAIR TRIAL.

a. PERTINENT FACTS.

b. THE STATE'S UNEXPLAINED PROFILING 

OF JUROR [NUMBER SEVEN] VIOLATED 

DUE PROCESS AND RENDERED THE TRIAL 

UNFAIR.

i. BATSON v. KENTUCKY

ii. THE VERDICT SHOULD BE SET 

ASIDE OR A REMAND 

ORDERED.

POINT III. 

THE COURT ERRED IN PERMITTING THE VIDEO 

OF THE INSIDE OF THE COUNTY JAIL TO BE 

SHOWN TO THE JURORS.
7

A-0358-17T4

POINT IV.

THE PROSECUTOR'S COMMENTS IN 

SUMMATION DENIED APPELLANT A FAIR 

TRIAL.

a. THE COMMENTS.

b. APPELLANT WAS DENIED A FAIR TRIAL.

POINT V.

THE COURT ERRED AS TO THE SCOPE OF THE 

GANG EVIDENCE WHICH IT ADMITTED.

We reject these contentions and affirm.

II.

Defendant argues that the trial court abused its discretion by allowing 

Sanford to testify concerning the bullet projectiles recovered in this case and 

their correlation to a homicide in Elizabeth. Defendant further contends that 

Sanford's expert opinion was unreliable, and "did not have a sufficient scientific 

basis to produce uniform and reasonably reliable results to contribute materially 

to the ascertainment of the truth[,]" citing State v. Torres, 183 N.J. 554, 568 

(2005).

When reviewing the admission or exclusion of evidence, we afford 

"[c]onsiderable latitude" to a trial judge's determination, examining "the 

decision for abuse of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) 
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(alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998); see also

State v. Jenewicz, 193 N.J. 440, 456 (2008) (stating "the abuse-of-discretion

standard" is applied "to a trial court's evidentiary rulings under Rule 702")). 

Importantly, "[u]nder th[is] standard, an appellate court should not substitute its

own judgment for that of the trial court, unless 'the trial court's ruling was so

wide of the mark that a manifest denial of justice resulted.'" Kuropchak, 221

N.J. at 385-86 (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

Expert testimony is admissible if it meets three criteria:

(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror;

(2) the field testified to must be at a state of the art such

that an expert's testimony could be sufficiently reliable;

and

(3) the witness must have sufficient expertise to offer

the intended testimony.

[State v. Henderson, 208 N.J. 208, 297 (2011) (quoting

Jenewicz, 193 N.J. at 454).]

When considering proffered expert testimony, the trial court exercises

discretion in determining "[t]he necessity for, or propriety of, the admission of

expert testimony, and the competence of such testimony . . . ." State v. Zola,

112 N.J. 384, 414 (1988). "The qualifications of an expert and the admissibility

of opinion or similar expert testimony are matters left to the discretion of the
9

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trial court." State v. McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011) (citing

Torres, 183 N.J. at 572; State v. Summers, 176 N.J. 306, 312 (2003)). "The

party offering the evidence has the burden of proof to establish its admissibility." 

Torres, 183 N.J. at 567.

The proponent of expert testimony must demonstrate

that it would "enhance the knowledge and

understanding of lay jurors with respect to other

testimony of a special nature normally outside of the

usual lay sphere." State v. Kelly, 97 N.J. 178, 209

(1984) (quoting State v. Griffin, 120 N.J. Super. 13, 20,

(App. Div. 1972)). In addition, the proponent must

demonstrate that the expert's testimony would be

reliable. Ibid.

[State v. J.Q., 252 N.J. Super. 11, 25 (App. Div. 1991).]

Defendant points to Sanford's testimony on cross-examination in support 

of his argument that the State failed to show that Sanford is reliable:

Q. The last indication is that acquisition of a weapon 

was used to discharge cartridges is indispensable to the 

comparative effort you were asked to undertake?

A. No.

Q. What did you mean when you said that?

A. I mean that, although I can opine that the 

projectiles were fired from the same weapon and the 

cartridge cases were fired from the same weapon, 

without having a subject weapon you cannot positively 

confirm that they were the same weapon firing cartridge 

cases and projectiles.
10 A-0358-17T4

Q. Okay.

. . . .

Q. So it's fair to say that scientifically you can't 

make a definitive statement with respect to the 

projectiles and the cartridges in this case, in those two 

instances, whether or not they compare?

A. I can have opinions on that, but I do not—they're 

not scientific opinions.

Q. You can't say to a degree of scientific certainty 

that's the case, correct?

A. Correct.

Here, the judge issued a cautionary instruction to the jury advising them 

how they could consider Sanford's testimony. Moreover, defense counsel 

agreed to the cautionary instruction. The judge properly informed the jury that 

defendant was not being charged with the prior homicide, and that they were not 

to consider the prior homicide with respect to the current charges against 

defendant.

We also consider whether the trial judge's admission of Sanford's 

testimony "was sufficiently prejudicial to have [had] the capacity to bring about 

an unjust result." State v. Thompson, 405 N.J. Super. 76, 81 (App. Div. 2009). 

Put differently, Sanford's testimony must be analyzed under the harmless error 
11 A-0358-17T4

standard. See Ragusa v. Lau, 233 N.J. Super. 84, 89 (App. Div. 1989), rev'd on 

other grounds, 199 N.J. 276 (1990).

Under Rule 2:10-2, "[a]ny error or omission shall be disregarded . . . 

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

unjust result . . . ." This court must determine "whether in all the circumstances 

there [i]s a reasonable doubt as to whether the error denied a fair trial and a fair 

decision on the merits . . . ." State v. Macon, 57 N.J. 325, 338 (1971); see also

Thompson, 405 N.J. Super. at 81 ("Even if the State elicits improper expert 

testimony during a criminal trial, a reversal of the defendant's conviction is 

required only if that testimony was sufficiently prejudicial to have the capacity 

to bring about an unjust result.").

"The harmless error standard requires that there be some degree of 

possibility that [the error] led to an unjust result. The possibility must be real, 

one sufficient to raise a reasonable doubt as to whether [it] led the jury to a 

verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 

(2012) (alterations in original) (internal quotation marks omitted).

As the trial court recognized, Sanford's testimony about the firearm used 

in the two homicides was foundation for Webb's testimony about gang activity 

between the Rollin 30's Crips and the G-Shine Bloods. In light of the proofs in 
12 A-0358-17T4

this case, which included defendant's admission of the shooting to several 

individuals, there cannot be "a reasonable doubt" that defendant was convicted 

as a result of "a fair trial and a fair decision on the merits." See Macon, 57 N.J. 

at 338. Because defendant cannot demonstrate that Sanford's testimony about 

ballistics "led the jury to a verdict it otherwise might not have reached," the trial 

judge's admission of Sanford's testimony was harmless error and does not 

warrant reversal.

III.

Defendant further asserts the State's profiling and concomitant accusal of 

a black female juror having improper contact with another person outside of the 

courtroom denied him a fair trial. During the trial, the judge informed the parties 

that "[i]t was brought to [his] attention last evening that an individual who was 

a spectator yesterday, who is also known as a Rollin 30's Crips member, 

approached one of the jurors and had a conversation" during a lunch break. The 

judge further stated that he was concerned that "this juror did not report any such 

contact."

The trial judge proceeded to voir dire juror seven, a black woman. The 

following exchange ensued:

THE COURT: Yesterday I gave the jury a longer lunch 

period, an hour [fifteen] minutes.
13 A-0358-17T4

JUROR NO. [SEVEN]: Right.

THE COURT: And you and your colleagues, as I've 

noted repeatedly, have been remarkably prompt–which 

I really appreciate. I feel–I hope you feel, and your 

fellow jurors feel that I'm prompt as well.

JUROR NO. [SEVEN]: Right.

THE COURT: You were substantially late yesterday.

JUROR NO. [SEVEN]: Uh-huh.

THE COURT: And I thought about it at the time, 

should I bring this to your attention, should I question 

you, but I didn't want to embarrass you. 

JUROR NO. [SEVEN]: Okay.

. . . .

THE COURT: It was brought to my attention that 

somebody approached you during the lunch hour.

JUROR NO. [SEVEN]: No. No one approached me.

THE COURT: That you had a conversation with 

somebody who had been in the courtroom as an 

observer for a number of minutes.

JUROR NO. [SEVEN]: No.

THE COURT: Let me ask you this: [w]ere you outside–

were you outside this building during the lunch hour? 

Did you leave the building for the lunch hour?

JUROR NO. [SEVEN]: Yes.
14 A-0358-17T4

THE COURT: Were you on the front veranda area?

JUROR NO. [SEVEN]: No, I was in the pizza parlor 

with my colleagues.

THE COURT: So are you indicating to me that nobody–

that you had no conversation with anybody that was not 

a juror during your–during the entirety of the lunch 

hour?

JUROR NO. [SEVEN]: Yes, I am.

THE COURT: Okay. I'm going to ask–[are] there any 

additional questions from the lawyers?

[DEFENSE COUNSEL]: No, [Y]our [H]onor.

THE COURT: I'm going to wait for a moment.

[PROSECUTOR]: I guess the only other question is 

. . . when you returned from lunch did you walk through 

the main front door?

JUROR NO. [SEVEN]: I went to the rear, found out the 

rear was not open, I had to go around the front.

THE COURT: Were you with your fellow jurors then?

JUROR NO. [SEVEN]: Not at that time. I was by 

myself.

THE COURT: How come you were by yourself?

JUROR NO. [SEVEN]: I had to give my son my vehicle 

because I had to pick up my child, so there was no way 

to pick up my daughter so he had to come get the 

vehicle from me, and I had to somehow get it to him 

and hurry up back.
15 A-0358-17T4

THE COURT: So when you were coming in the front 

of this building, you're telling me you had no 

communication with anybody else?

JUROR NO. [SEVEN]: No, I came through the guard 

entrance. The guard, basically, he took my belongings. 

My earrings kept going off, for some reason, and I was 

trying to hide my juror badge. He said, "Take your juror 

badge off." I took it off. There was a young man he was 

talking to that was in front of me, but no, I never talked 

to anyone. 

The judge then interviewed a white juror. Defendant asserts that juror 

number seven was falsely identified because she is black, and the "process of 

interfering with her dignity and composure rendered the trial unfair because of 

its unknown affect."

We apply an abuse of discretion standard to the trial court's determinations 

regarding claims of juror taint. State v. R.D., 169 N.J. 551, 559-60 (2001). The 

Sixth Amendment to the United States Constitution and Article I, paragraph 10 

of the New Jersey Constitution guarantee criminal defendants the right to an 

impartial jury during trial. Id. at 557. Criminal defendants are "entitled to a 

jury that is free of outside influences and [that] will decide the case according 

to the evidence and arguments presented in court in the course of the criminal 

trial itself." State v. Williams, 93 N.J. 39, 60 (1983).
16 A-0358-17T4

"The securing and preservation of an impartial jury goes to the very 

essence of a fair trial." Ibid. "[If] during the course of the trial it becomes

apparent that a juror may have been exposed to extraneous information, the trial 

court must act swiftly to overcome any potential bias and to expose factors 

impinging on the juror's impartiality." R.D., 169 N.J. at 557-58 (citing State v. 

Bey, 112 N.J. 45, 83-84 (1988)).

Our Supreme Court recognizes that "the trial court is in the best position 

to determine whether the jury has been tainted." R.D., 169 N.J. at 559. The trial 

judge must "consider the gravity of the extraneous information in relation to the 

case, the demeanor and credibility of the juror or jurors who were exposed to 

the extraneous information, and the overall impact of the matter on the fairness 

of the proceedings." Ibid. The trial judge has the discretion to grant a new trial 

based on juror taint. Id. at 558.

In the instant matter, we find no basis to second-guess the trial judge's 

handling of the jury issue. After learning of the reported incident, the judge 

promptly conducted a voir dire of the relevant jurors. Nothing in the record 

indicates that juror number seven or any other juror felt intimidated, and they 

were otherwise able to decide the matter in a fair and impartial manner. 
17 A-0358-17T4

Accordingly, we find no abuse of the trial judge's discretion in allowing juror 

number seven to continue on the case.

Defendant also cites to a litany of cases involving racial profiling, State 

v. Lee, 190 N.J. 270 (2007), peremptory strikes, Batson v. Kentucky, 476 U.S. 

79 (1986), and other discriminatory practices, Swain v. Alabama, 380 U.S. 202 

(1965). There is no evidence of a racial motive, discriminatory practice, or 

discriminatory effect based upon our careful review of the record. Here, juror 

number seven was interrogated in a respectful way regarding a mistakenly 

perceived incident. As such, defendant has not shown any prejudice or undue 

consequence.

IV.

Next, defendant argues that the trial judge erred by permitting the jury to 

view a short video of defendant speaking with the State's witness, Anthony 

Pearson, at the county jail during the trial. There was no audio, only video. The 

audio was presented to support the claim of witness tampering. The State 

contended that defendant attempted to persuade Pearson not to testify.

Defendant argues that the soundless video has no probative value and the 

conditions of the penal facility resulted in prejudice and undue influence on the 

jurors, referring to it as the "foreboding belly and bowels of a correctional 
18 A-0358-17T4

facility." Defendant further posits that, "[t]he nature of an inmate's existence in 

the institution and concomitant survival is immediately a source of provoked 

speculation," and that "[c]learly, all of the jurors were influenced by the 

conditions in a penal facility regardless of the cautionary instruction or other 

masking tools applied."

In support of this argument, defendant relies on cases involving instances

where a defendant was required to appear before a jury in prison garb and/or

restraints. See State v. Artwell, 177 N.J. 526, 539 (2003) (finding the practice

of producing witnesses in prison garb prior to the decision did not advance an

essential state interest and reversing the defendant's conviction). Defendant

argues the depiction of the jail created the impression that the inmates, including

himself, were all guilty and dangerous, and that as a result, the risk of undue

prejudice outweighed the probative value of the video under Rule 403.

Artwell involved a witness appearing in court in prison garb, at the

instruction of the State. Id. at 531. There is no analog here, as the video was

offered by the State as evidence of witness tampering. Furthermore, the trial

judge conducted a Rule 404(b) hearing relative to defendant's attempt to

persuade Pearson not to testify.
19 A-0358-17T4

Additionally, the judge properly conducted an analysis pursuant to State

v. Cofield, 127 N.J. 328 (1992). In determining the analysis required by Rule

404(b), the Cofield Court provided four factors to be considered:

1. The evidence of the other crime must be

admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in

time to the offense charged;

3. The evidence of the other crime must be clear and

convincing; and

4. The probative value of the evidence must not be

outweighed by its apparent prejudice.

[127 N.J. at 338.]

The judge determined that defendant's request to convince Pearson not to

testify was relevant to a material issue (prong one), and the testimony and

accompanying evidence was clear, convincing, and probative (prongs three and

four).2 The trial judge considered the video and testimony elicited at the hearing. 

The video showed that the conversation lasted for over four minutes, during

which defendant would periodically get up and return to the cell, while "looking

2

 The second Cofield prong, that the evidence be reasonably close in time and 

close in kind, was irrelevant, as the incident took place while defendant was 

incarcerated during the trial and the issue involved the witness the State planned 

to have testify.
20 A-0358-17T4

to make sure that he was able to speak in private . . . ." Because the trial judge's

findings are supported by sufficient credible evidence in the record, and a

limiting instruction was given to the jury, we conclude the court's decision to

admit the video was not a mistaken exercise of discretion.

V.

Defendant further argues that remarks the prosecutor made in summation

denied him a fair trial. We disagree.

The record shows that during the prosecutor's summation, the jury was

told "[d]efendant was arraigned, he should have pled guilty . . . ." The judge

sustained defense counsel's objection and immediately instructed the jury that

"it's an individual's constitutional right to go to trial. The State has the burden

of proof . . . [and] the burden never shifts to the [d]efense." Defense counsel

also objected to the prosecutor's characterization of defendant's interaction with

Shenouda, a Crips member from Elizabeth, because the intended message was

to "go back to [your] boys . . . [and] tell them, [I am] not a man to be toyed with

. . . ." The trial judge sustained the objection raised by defense counsel. 

Defendant also asserts the prosecutor's last comment that "defendant is a stonecold-blooded assassin," was improper.
21 A-0358-17T4

Prosecutors are "expected to make vigorous and forceful" summations,

and they "are afforded considerable leeway" so long as their remarks are tethered

to the evidence presented and the reasonable inferences to be drawn therefrom. 

State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Harris, 141 N.J. 525, 559

(1995); State v. Williams, 113 N.J. 393, 447 (1988)). However, prosecutors

may "not make inaccurate legal or factual assertions during a trial and . . . must

confine their comments to evidence revealed during the trial and reasonable

inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178

(2001) (citing Frost, 158 N.J. at 86; State v. Marks, 201 N.J. Super. 514, 534

(App. Div. 1985)).

In determining whether to reverse a conviction for prosecutorial

misconduct, including improper remarks during summation, an appellate court

must decide whether "the prosecutor's misconduct was so egregious that it

deprived the defendant of a fair trial." Frost, 158 N.J. at 83 (citing State v.

Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)). 

On appeal, we must consider whether the defendant objected to the remarks,

"whether the remarks were withdrawn[,]" and "whether the court ordered the

remarks stricken from the record and instructed the jury to disregard them." 

Ibid. (citing State v. Marshall, 123 N.J. 1, 153 (1991); Ramseur, 106 N.J. at 322-
22 A-0358-17T4

23; State v. G.S., 278 N.J. Super. 151, 173 (App. Div. 1994), rev'd on other

grounds, 145 N.J. 460 (1996); State v. Ribalta, 277 N.J. Super. 277, 294 (App.

Div. 1994)).

The decision whether to issue a curative instruction "is one that is 

peculiarly within the competence of the trial judge, who has the feel of the case 

and is best equipped 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). Generally, a

curative instruction eliminates prejudice if it instructs jurors to disregard a 

specific statement and is "accomplished without delay." State v. Vallejo, 198 

N.J. 122, 134-35 (2009). "The adequacy of a curative instruction necessarily 

focuses on the capacity of the offending evidence to lead to a verdict that could 

not otherwise be justly reached." Winter, 96 N.J. at 647.

The judge found the prosecutor's comment about defendant's exchange 

with Shenouda was inappropriate but noted the prosecutor may suggest to the 

jury that an inference could be drawn from the evidence in the record. We are 

satisfied the comments were not so egregious to deprive defendant of a fair trial.

VI.

Lastly, defendant argues the trial judge erred by not performing the Rule 

403 analysis required for admission of gang-related evidence of motive. 
23 A-0358-17T4

Defendant does not dispute that gang-related evidence is admissible and helpful 

to juries under Torres, 183 N.J. at 574-77. However, defendant claims that "the 

jury was inundated with evidence of proclivity and foul character."

The trial judge qualified the gang-related evidence with a specific 

instruction to the jury: "you may not decide that just because [d]efendant is a 

member of a street gang or that the decedent was a member of a street gang, 

. . . [d]efendant must be guilty of the present crimes. I have admitted this 

evidence only to help you decide the specific question of motive."

The gang-related evidence was introduced as background information to 

assist the jury in determining motive. Based upon our review of the record, the 

evidence was not elicited, as defendant seems to imply, to associate defendant 

with other homicides. We discern no abuse of discretion and defer to the trial 

judge's evidentiary ruling here as to the gang-related evidence.

Affirmed.