SUPERIOR COURT OF NEW JERSE Y

APPELLATE DIVISION

DOCKET NO . A

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

EUGENE R

. CADY

,

Defendant

- Appellant.

________________ ______________

Argued January 14, 2020

– Decided Febr uary 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 D exter 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 Atto rney Gen eral/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PER CURIAM NOT FOR PUBLICATION WITHOUT THE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 o ther cases is limited. R. 1:36

- 3.2 A

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Defendant Eugene Cady was tried before a jury and found guilty of first

degree murder and other offenses, as charged in a Union County indictment.

Defendant appeals from the judg ment of conviction entered by the trial court.

We affirm.

I.

In Indictment No. 13

- 06

- 0597, defendant was charged with the first

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

- 3(a)(1) and (2) (count one);

second

- degree unlawful possession of a weap on, 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 respon ded to t he 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

Wil son. Ed gar 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 L inden, d efendant, a member of the Rollin3 A

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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 ou t 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 Crip s

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

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, Dy a nne Simons spoke to defendant in the

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

defendant answered, "[y]eah, I k now. I did that." Another Ro l lin 30's Crips

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

Loco left the apartment, Pearson heard two gunshots

. Ultim ately, defendant was

arrested on September 5, 2011.

At trial, the State called Lieutenant Michael Sanford, a ballistic s expert,

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

the bullet projectiles recovered next to Wils on' s body correlated to a homicide4 A

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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. T he trial court provided a c autionar y instruction to the

jury, which was not objected to b y 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 char ged 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 pr oper 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 th e 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 R ollin 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 p rison5 A

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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 Ro llin 30's

Crips, and that he murdered Kason Wilson , a "G

- Shine Blood," near the tracks

in Linden.

Fol lowing a sixteen

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

The trial judge sentenced defendant to forty

- two years of imprisonment subject

t o 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 term s with forty

- two months of parole ineligibility for

the weapon s offenses

.

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

the following argume nts 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 EVIDE NCE

.

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

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- 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 REL EVANT

EVIDENCE.

POINT II

.

THE STATE'S PROFILING AND CONCOMITANT

ACCUSAL OF A BLACK FEMAL E JUROR AS

HAVING IM PROPER CONTACT WITH ANOTHER

PERSON OUTSIDE THE COURTHOUSE DENIED

APPELLANT A FAIR TRIAL.

a

. PERTINENT FACTS.

b

. THE STATE'S UNEXPLAINED PROFILIN G

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

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.

THE PROSECUTOR'S COMMENTS IN

SUMMATION DENIED APPELLANT A FAIR

TRIAL.

a. THE COM MENTS.

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 t hese 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 conte nds that

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

basis to produce unifo rm 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)8 A

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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 a buse

- 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, un less 'the trial court's ruli ng 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 int ended 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 intend ed 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

exp ert 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 the9 A

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trial court." S tate 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 admissibili ty."

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) (qu oting 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 indispensabl e to the

comparative effort you were as ked 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,

w ithout having a subject weapon you cann ot positively

confirm that they were the same weapon firing cartridge

cases and projectiles.10 A

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- 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 no t they compare?

A. I can have opinions on that, but I do not

— they're

not scie ntific opinions.

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

that's the case, correct?

A. Correct.

Here, the judge issued a cau tionary instruction to the jury advising them

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

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 als o consider whether the trial judge's admission of Sanford's

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

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

Put differently, Sanford's testim ony must be analyzed under the harmless error11 A

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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

t here [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 dur ing 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

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

one sufficient to raise a reasonab le 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 fi rearm 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 in12 A

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this case, which included defendant's admi ssion 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 re versal.

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

tha t " [ 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 Crip s 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 j uror seven, a black woman. The

following exchange ensued:

THE COURT: Yesterday I gave the jury a longer lunch

period, an hour [fif

teen ] minutes.13 A

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. [SEVEN] : Right.

THE COURT: And you and your colleagues

, as I've

noted repeatedly, have been rema rkably 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.

T HE COURT: You were substantially late yesterday.

JUROR NO

. [SEVEN]: Uh

- huh

.

THE COURT: And I thought ab out 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 num ber 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

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- 17T4 THE COURT: Were you on the front vera nda area?

JUROR NO

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

with my colleagues.

THE COURT: So are y ou 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 t he 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 a t 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

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- 17T4 THE COURT: So when you were coming in the fron t

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 anyon e.

The judge then interviewed a white juror. Defendant asse r ts 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 cl aims 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 Jerse y 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 p resented in court in the course of the criminal

trial itself." State v. Williams , 93 N.J

. 39, 60 (1983).16 A

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"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 m ust 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. 4 5, 83

- 84 (1988)).

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

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 ext raneous 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 t rial 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 rec ord

indicates th at j uror 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

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

number seven to co ntinue on the case

.

Defendant also cites to a litany of cases involving racial profilin g, 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

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

discriminator y 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 argue s that the trial judge erred by permitting the jury to

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

Pe a rson, at the county jail during the trial. There was no audio, only video. The

audio was presented to support the claim o f 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 result ed in prejudice and undue influence on the

jurors, referring to it as the "foreboding belly and bowels of a correctional18 A

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

th e institution and concomitant survival is immediat ely 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

ma s king tools applied. "

In support of this argument, defendant relies on c ases 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 adva nce 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 dangero us, and that as a result, the risk of undue

prejud ice 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 v ideo 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 Pe a rson not to testify.19 A

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Additionally

, the judge properly conducted an analysis pursuan t to State

v. Cofield

, 127 N.J. 328 (1992)

. In determining the analysis required by Rule

404(b), the Cofield C ourt 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 b e 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

outwei ghed by its apparent prejudice.

[127 N.J. at 338.]

The judge determined that defendant's request to convince Pe a rson not to

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

accompanying evidence was clear

, convincing, and proba tive (prongs three and

four). 2 The trial judge considere d 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 ir relevant, 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

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to make sure that he was able to speak in priva te

. . . . " 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

admi t 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. W e 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 Crip s 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 la st comment that "defendant is a stone

cold

- blooded assassin

, " was improper.21 A

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Prosecutors ar e "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.

Sta t e v. Frost

, 158 N.J. 76, 83 (1999) (citing State v. Harris

, 141 N.J. 525, 559

(1995); State v. Will iams

, 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 co urt ordered the

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

Ibid. (citing State v. Mar shall

, 123 N.J. 1, 153 (1991); Ramseur

, 106 N.J. at 322

-22 A

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23; State v. G.S.

, 278 N.J. Super. 151, 173 (App. Div. 1994), rev'd on o the r

gro unds

, 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, 64 6

- 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 nece ssarily

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

not otherwise be justly re ached." Winter

, 96 N.J. at 647.

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

with Shenouda was inappropriate but not ed 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 no t performing the Rule

403 analysis required for admission of gang

- related evidence of motive.23 A

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Defendant does not di spute 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]efenda nt is a

member of a street gang or that the de cedent 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 e vidence was introduced as background informati on 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 o f discretion and defer to the trial

judge's ev identiary ruling here as to the gang

- related evidence.

Affirmed.