SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4202-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COURTNEY SIMPSON, a/k/a

DALE SIMPSON,

Defendant-Appellant.

____________________________

Argued January 23, 2020 – Decided May 6, 2020

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-02-0113.

Paul Condon argued the cause for appellant.

Marc A. Festa, Assistant Prosecutor, argued the cause 

for respondent (Camelia M. Valdes, Passaic County 

Prosecutor, attorney; Christopher W. Hsieh, Chief 

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NOT FOR PUBLICATION WITHOUT THE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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Following a jury trial, defendant was convicted of first-degree aggravated 

manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of murder, 

N.J.S.A. 2C:11-3(a)(1) and 3(a)(2) (count one); second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and seconddegree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three). 

The convictions stemmed from defendant fatally shooting a guest at a house 

party during an altercation involving several party attendees. The altercation

began in the house and continued in a supermarket parking lot across the street, 

where the shooting was captured on surveillance cameras. Defendant was

apprehended in Florida almost a year later. After denying defendant's pro se 

motion for a judgment of acquittal notwithstanding the verdict and a new trial, 

see R. 3:18-2 and R. 3:20-2, the judge sentenced defendant to an aggregate 

twenty-two-year term of imprisonment, subject to an eighty-five percent period 

of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 

2C:43-7.2.

On appeal, defendant raises the following points for our consideration:
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POINT I

THE COURT'S FAILURE TO CONDUCT A 

WADE/HENDERSON[1] HEARING ON THE 

ADMISSIBILITY OF A CHALLENGED 

IDENTIFICATION DEPRIVED [DEFENDANT] OF 

A FAIR TRIAL. 

POINT II

THE STATE'S NARRATION OF THE 

SURVEILLANCE VIDEO DEPRIVED DEFENDANT 

OF A FAIR TRIAL.

POINT III

THE ADMISSION OF THE "DYING 

DECLARATION" DEPRIVED DEFENDANT OF A 

FAIR TRIAL (NOT RAISED BELOW).

POINT IV

THE STATE'S CLOSING ARGUMENT 

IMPROPERLY SUGGESTED DEFENDANT FLED 

AND IMPROPERLY ALLUDED TO WITNESS 

INTIMIDATION THEREBY DEPRIVING 

DEFENDANT OF A FAIR TRIAL.

POINT V

THE SENTENCE OF THE COURT WAS 

EXCESSIVE (NOT RAISED BELOW).

Having considered the arguments and applicable law, we affirm.

 

1

 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 

(2011).
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I.

We glean these facts from the trial record. On February 22, 2014, at 

approximately 2:00 a.m., Ferron Green was fatally shot several times in the 

parking lot of Universal Supermarket, located on Ellison Street in Paterson. 

Earlier that evening, Green and about thirty individuals attended a house party 

directly across the street from the supermarket. At some point during the party, 

the host, known as Yardy, turned the music off and ordered the guests to leave. 

Green and another guest, identified as Shane, argued with Yardy to turn the 

music back on and keep the party going. Eventually, Green and Shane started 

arguing with each other. As the argument escalated, Green, Shane, Yardy, and

several other party attendees, including defendant, walked across the street to 

the supermarket parking lot where they faced off in a circle. Green and Shane 

continued arguing and screamed "obscene" epithets at one another. 

As the argument became increasingly combative, some guests tried 

unsuccessfully "to break it up." At some point, someone yelled a particularly 

offensive epithet, followed by the firing of successive gunshots, prompting

everyone to quickly disperse. Moments after the gunshots were fired, several 

party guests found Green lying on the ground of the parking lot, pleading for 
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them to call an ambulance and declaring that he was going to die. When police 

officers responded to the scene and asked Green who shot him, Green responded, 

"I'm going to die." Green was transported by ambulance to the hospital, where 

he later succumbed to his injuries. A State medical examiner subsequently ruled 

Green's "cause of death" as "multiple gunshot wounds" to the "torso and right 

leg," and "manner of death" as "homicide." 

During the ensuing investigation, police recovered surveillance footage 

that "capture[d] the shooting" from "video cameras" located "on the outside of 

. . . the supermarket." Additionally, witnesses provided recorded statements to 

police, as a result of which defendant was identified as the shooter and a warrant 

was issued for his arrest. Notably, Detective Rafael Fermin of the Paterson 

Police Department interviewed Shellina Morgan, who informed him that 

although "[s]he did not see the shooting," she saw a person she knew as "Dolla" 

"with a gun inside the party." When Fermin showed Morgan a photograph of 

defendant, Morgan identified defendant as Dolla, but refused to sign the 

photograph because "[s]he was scared."2 Thereafter, officers were unable to 

 

2

 At trial, pursuant to State v. Gross, 121 N.J. 1, 15-17 (1990), Morgan's 

statements to Fermin were admitted as substantive evidence following an

N.J.R.E. 104 hearing outside the presence of the jury conducted after Morgan 

feigned lack of recollection while testifying. See State v. Brown, 138 N.J. 481, 
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find defendant in New Jersey. Almost a year later, in December 2014, defendant 

was located in Fort Lauderdale, Florida, and transported back to New Jersey to 

face the homicide related charges lodged against him. 

During the six-day trial, along with responding police officers, detectives, 

and the State medical examiner, several witnesses who had attended the party 

and were present during the altercation in the parking lot testified for the State. 

The surveillance footage from the supermarket was also played for the jury.

Williard Buchanan attended the party and testified that when the 

altercation began in the house, Green and defendant were arguing, and he 

observed defendant holding an object behind his back that "looked like a gun." 

Buchanan stated that he was still in the house when he heard gunshots. He 

testified that when he ran outside after the shooting and tended to Green, Green 

handed him his car keys and told him repeatedly that "he [was] going to die." 

Buchanan said Green was "mumbling something about who shot him" but he 

"[c]ouldn't hear clearly." When pressed, Buchanan confirmed that he had 

previously told police "[i]t sound[ed] like [Green] said" "Dolla sh[]ot [him]," 

but claimed he was pressured to cooperate because "[he] was on probation" and 

 

542 (1994), overruled in part on other grounds by State v. Cooper, 151 N.J. 326, 

377 (1997) ("[A] feigned lack of recollection is an inconsistency on which the 

admission of a witness's prior inconsistent statement may be based.").
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"[he] was subject to deportation." On cross-examination, Buchanan admitted 

that he "just said whatever to save [his] a-s-s." Buchanan identified defendant 

in court as "Dolla."

Keston Miguel participated in the face-off in the parking lot and testified 

that after the shooting, he observed Green fall to the ground and a gun in 

defendant's3 hand. However, on cross-examination, he admitted that he was 

coerced by police to incriminate defendant and, in fact, never saw defendant 

with a gun. According to Miguel, after the shooting, he immediately jumped

into "[a] van" driven by Mario Tyrell and occupied by three other party 

attendees, including defendant. 

Tyrell confirmed that Miguel and three other men, including defendant, 

"jumped in" his van immediately after the shooting. According to Tyrell, he had 

been in the parking lot during the face-off, ran towards his parked van after the 

shooting, and saw defendant's hand pointing in Green's direction when he looked 

back. Although no one spoke explicitly of the shooting during the ride, 

defendant stated that he had never liked Green, and, as defendant sat in the van, 

Tyrell "glimpsed a gun" "tucked" in defendant's waistband.

 

3

 During a police interview, Miguel identified defendant's photograph as Dolla, 

and identified defendant at trial as Dolla.
8

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Shawanda Evans, Morgan's cousin, testified that after the "commotion," 

she found Green lying in the parking lot bleeding. She testified that when she 

tried to put pressure on his bullet wounds, Green told her "I'm dead, I'm dead, 

I'm dead." Shantress Smith attended the party with Evans. Smith testified she 

heard gunshots and ran to the parking lot, where Green asked her to "call the

ambulance" and told her "I feel like I'm dying. I'm dying. I'm dying." 

Defendant did not testify or present any witnesses at trial. 

II.

In Point I, defendant asserts that he was deprived of a fair trial because 

the trial judge failed to conduct "a Wade/Henderson hearing outside the presence 

of the jury" before admitting Morgan's "videotaped statement" to police, in 

which she implicated defendant as the shooter. Defendant acknowledges that 

while the judge conducted a Gross hearing to consider the admissibility of 

Morgan's prior recorded statements when she feigned lack of recollection while 

testifying, the judge denied him a Wade/Henderson hearing because Morgan

"was familiar with the defendant."

To be entitled to a Wade/Henderson hearing, a defendant must first proffer 

"some evidence of suggestiveness" that could result in a misidentification. 

Henderson, 208 N.J. at 238, 288. No such evidence was presented here. Morgan 
9

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identified "Dolla," with whom she was familiar, as the person she observed with 

a gun at the party. Morgan supplied defendant's nickname, and Detective 

Fermin showed her a photograph of that person for confirmation. A

Wade/Henderson hearing is not warranted in these circumstances where the 

witness identifies the suspect by a nickname, and the officer's act of showing 

the witness a photo of the person associated with that nickname was simply a 

confirmatory identification. "A confirmatory identification occurs when a 

witness identifies someone he or she knows from before but cannot identify by

name," or can "only [identify] by a street name." State v. Pressley, 232 N.J. 587, 

592-93 (2018). Indeed, "a 'confirmatory' identification [as occurred here] . . . is 

not considered suggestive." Id. at 592. 

In Point II, defendant argues that Detective Fermin's narration of the 

"surveillance videotape of the criminal incident" obtained from the supermarket 

"required no specialized skill," provided the "State's version of the incident" to 

the jury, and thereby "deprived him of a fair trial." Thus, defendant infers that 

the judge erred in permitting the narration. 

While the surveillance video from the supermarket was played for the jury,

Fermin provided the following narration:
10 A-4202-17T2

You can see from this area right here, it's a group 

of males gathering. It looks like they're having a 

conversation.

. . . .

Keep your eyes on this area right here, a lot of the 

males will fall down shortly. There he is on the ground. 

And this group of males will head this way and 

eventually get in a car or mini van. 

. . . . 

And there goes the mini van. As you can see 

there's movement around it and it's about to take off and 

makes a left down East 18th. We later learn through 

our investigation that [the] mini van goes onto Madison 

Ave. and crosses over Park Ave. 

. . . .

. . . . [I]n the area there is what we believe is a 

muzzle flash in this area right before the victim falls.

. . . . 

The area where the group of males are and the 

male then falls. So there is a muzzle flash that we see. 

But again you won't be able to see it. It's hard to see on 

this screen because it's expanded and it distorts the 

picture. 

During the narration, defense counsel only objected when Fermin said that 

the "group of males will head this way and eventually get in a car or mini van." 

According to defense counsel, Fermin was "testifying to something [] not in the 
11 A-4202-17T2

video yet." The judge overruled the objection, noting that Fermin was simply 

"describing what [the video] depicts." 

We review a trial court's evidentiary determinations under an abuse-ofdiscretion standard. State v. Perry, 225 N.J. 222, 233 (2016). An abuse of 

discretion occurs when a trial court's evidentiary ruling "was so wide of the 

mark" as to result in "a manifest denial of justice" and the evidence diverts the 

jurors from a reasonable and fair evaluation of guilt or innocence. State v. 

Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 

(1984)); State v. Moore, 122 N.J. 420, 467 (1991). "However, '[w]hen the trial 

court fails to apply the proper test in analyzing the admissibility of proffered 

evidence,' our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 

(App. Div. 2012) (alteration in original) (quoting Pressler & Verniero, Current 

N.J. Court Rules, cmt. 4.6 on R. 2:10-2 (2012)).

A law enforcement officer's narrative testimony of surveillance footage 

depicting the crime is considered lay opinion testimony. 

Lay witnesses may present relevant opinion testimony 

in accordance with Rule 701, which permits "testimony 

in the form of opinions or inferences . . . if it . . . is 

rationally based" on the witness'[s] "perception" and 

"will assist in understanding the witness'[s] testimony 

or in determining a fact in issue." 
12 A-4202-17T2

[State v. Lazo, 209 N.J. 9, 22 (2012) (first and second 

alterations in original) (quoting N.J.R.E. 701).] 

"The Rule does not permit a witness to offer a lay opinion on a matter 'not 

within [the witness's] direct ken . . . and as to which the jury is as competent as 

[the witness] to form a conclusion.'" State v. McLean, 205 N.J. 438, 459 (2011) 

(first, second, and fourth alterations in original) (quoting Brindley v. Firemen's 

Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). As the McLean Court stated, 

lay opinion "is not a vehicle for offering the view of the witness about a series 

of facts the jury can evaluate for itself." Id. at 462. "[L]ay opinion testimony is 

limited to what was directly perceived by the witness and may not rest on 

otherwise inadmissible hearsay." Id. at 460.

Here, we are satisfied that Fermin's narration of the surveillance footage 

exceeded the bounds of permissible lay opinion testimony. Because he based 

his testimony on his observations of the video, and not on any personal 

knowledge, he was in no better position than the jury to draw conclusions about 

what the video showed. However, we conclude that permitting the narration 

constitutes harmless error. 

"An evidentiary error will . . . be found 'harmless' if there is [no] 

reasonable doubt as to whether the error contributed to the verdict." State v. 

J.R., 227 N.J. 393, 417 (2017). Said another way, "[t]he harmless error standard 
13 A-4202-17T2

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." 

Lazo, 209 N.J. at 26 (citation and internal quotation marks omitted). See R.

2:10-2 ("Any error or omission shall be disregarded by the appellate court unless 

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

result").

Here, Fermin's narration provided no more information than what the 

video showed. The jury was able to assess his statements as well as make its 

own independent assessment of the video irrespective of Fermin's narration. 

This is not a case where a police witness impermissibly identified a defendant 

depicted in a surveillance photo or video with no personal knowledge of the 

crime and no prior familiarity with the defendant. See Lazo, 209 N.J. at 24

(clarifying that a law enforcement officer may not offer a lay opinion on 

identification from a surveillance photo where the officer did not witness the 

crime, did not know the defendant, and the officer's opinion stemmed entirely 

from the victim's description). Thus, we are satisfied the error was not capable 

of producing an unjust result and did not deprive defendant of a fair trial. 
14 A-4202-17T2

We also conclude that it was harmless error for Fermin to indicate that he 

"later learn[ed] through . . . investigation" the minivan's course of travel. While 

the testimony constituted hearsay, it neither implicated defendant in the crime 

nor was clearly capable of producing an unjust result. See State v. Branch, 182 

N.J. 338, 349-51 (2005) (barring hearsay testimony which leads the jury to infer 

that a police officer received information from an unknown source implicating 

the defendant in a crime).

In Point III, defendant argues the judge "should have conducted a[n]

[N.J.R.E. 104] hearing . . . to determine the exact content of . . . Buchanan's 

testimony regarding the dying declaration even though the defense waived said 

right." Defendant continues that the judge also failed "to consider the prejudice 

to defendant by the admission of the purported dying declaration" and "the 

repeated recitation of the victim's 'dying declaration' deprived him of a fair 

trial."

Defendant waived an N.J.R.E. 104 hearing on the admissibility of 

Buchanan's testimony as a dying declaration "for very good tactical reasons." 

Thus, reviewing this claim under the doctrine of invited error, we find no fault 

with the judge's decision to evaluate the admissibility of Buchanan's testimony 

without conducting an N.J.R.E. 104 hearing. See N.J. Div. of Youth & Family 
15 A-4202-17T2

Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010) (holding that where defense 

counsel makes strategic decision at trial, a reviewing court will not reverse in 

the absence of fundamental injustice). 

Citing State v. Graham, 59 N.J. 366, 370 (1971), the judge admitted the 

testimony under N.J.R.E. 804(b)(2), explaining that 

the victim's out-of-court statement . . . has to be made 

while the victim believed his death was imminent. The 

[c]ourt in making [the] decision as to admissibility 

looks to the nature of the injury and the extent of the 

wound. 

Here, . . . there were bullet wounds to the torso 

and leg of the [victim]. He was bleeding profusely. . . . 

[F]rom the testimony . . . from various witnesses, . . . 

Green[] was aware of the nature and extent of his 

wounds. 

He was aware of the imminence of death having 

said, even according to the testimony of these other 

witnesses, I'm dead, I'm dead. . . . [W]itnesses . . . tried 

to reassure [Green] that he was not dying, but it's clear 

that [Green] believed that he was. He was prostrate. 

He was in a very perilous situation. 

. . . . 

[T]he condition of the declarant was grave and his own 

expressions of his sense of . . . imminent death could 

not have been clearer. This is . . . virtually a textbook 

example of what a dying declaration is. 
16 A-4202-17T2

Someone who knows that they're dying 

spontaneously makes a statement as to the person who 

purportedly shot him. . . .

. . . . [A]ll the witnesses corroborate one another 

in terms of what the [victim's] state of mind was when 

he was speaking. There is, of course, one glaring 

difference between what the other witnesses said and 

what . . . Buchanan is expected to testify to, namely the 

fact that none of the other witnesses have said that . . . 

Green identified the shooter. And that, of course, is the 

whole subject of what his anticipated testimony is about 

to be.

N.J.R.E. 804(b)(2) provides that "in a criminal proceeding, a statement 

made by a victim unavailable as a witness is admissible if it was made 

voluntarily and in good faith and while the declarant believed in the imminence 

of [his] impending death." See also Graham, 59 N.J. at 371. "A commonly 

expressed justification for including dying declarations among the exceptions to 

the hearsay rule is that the realization of impending death supports a strong 

likelihood of credibility." State v. Hegel, 113 N.J. Super. 193, 203 (App. Div. 

1971). In evaluating the admissibility of the out-of-court statement, "all the 

attendant circumstances should be considered, including the weapon which 

wounded [the declarant], the nature and extent of his injuries, his physical 

condition, his conduct, and what was said to and by him." Id. at 201 (quoting 

Commonwealth v. Knable, 85 A.2d 114, 117 (Pa. 1952)). 
17 A-4202-17T2

Whether the attendant facts and circumstances of the 

case warrant the admission of a statement as a dying 

declaration is in the first instance for the court, but, 

when admitted, the declarant's state of mind and the 

credibility, interpretation and weight to be given his 

statement are for the jury under proper instructions. 

[Ibid. (quoting Knable, 85 A. 2d at 117).]

"Where [the out-of-court statement] takes the form of an opinion or a 

conclusion it should not be offered to the jury until a preliminary determination 

has been made by the judge that in light of the totality of all relevant 

circumstances it can fairly be received without undue prejudice." Id. at 202. 

Thus, "the trial court must weigh, under N.J.R.E. 403, probative value of the 

dying declaration against the prejudice to defendants of its admission." State v. 

Brown, 236 N.J. 497, 523 (2019). "N.J.R.E. 403 instructs that 'relevant evidence

may be excluded if its probative value is substantially outweighed by the risk of 

. . . undue prejudice.'" Ibid. (alteration in original) (quoting N.J.R.E. 403). 

Here, there was sufficient credible evidence in the record to support the 

judge's determination that Green's statement to Buchanan was admissible as a 

dying declaration under N.J.R.E. 804(b)(2). Green made the statement

voluntarily, without prodding or interrogation, while aware of his impending 

death based on the nature and extent of his injuries. The fact that Green 

reiterated that he was dying to multiple witnesses simply reinforced his belief in 
18 A-4202-17T2

the imminence of his impending death. Thus, under all the attendant 

circumstances, we conclude the judge did not abuse his discretion in admitting 

Green's statement to Buchanan as a dying declaration. See State v. Buda, 195 

N.J. 278, 294 (2008) ("Trial court evidentiary determinations are subject to 

limited appellate scrutiny, as they are reviewed under the abuse of discretion 

standard."). 

Unquestionably, Green's dying declaration had substantial probative 

value. As the judge pointed out, Buchanan's expected testimony differed 

markedly from the others because Green identified the shooter to Buchanan. 

That said, the statement was also prejudicial to the defense. "Indeed, 

evidentially, admission of 'a dying declaration is often terrible in its 

consequence and well nigh impossible to counter. It has been described as 

"devastating" in its impact.'" Ibid. (quoting Hegel, 113 N.J. Super. at 202). 

However, in the circumstances of this case, any undue prejudice was mitigated 

by defense counsel's effective cross-examination of Buchanan, who ultimately 

admitted that he was pressured to incriminate defendant because "[he] was on 

probation" and "subject to deportation." 

In Point IV, defendant argues he was deprived "of his right to a fair trial"

by the State's comments during summation. Specifically, defendant asserts "the 
19 A-4202-17T2

State improperly argued defendant's absence from the jurisdiction amounted to 

a consciousness of guilt[] despite the trial court specifically declining to instruct 

the jury on that principle." Further, according to defendant, the State

"improperly alluded to witness intimidation by asking the jury to step into the 

shoes of its witnesses in testifying against defendant."

In assessing whether a prosecutor's remarks in summation require 

reversal, we evaluate whether the conduct "was so egregious that it deprived the 

defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). "Prosecutors 

may not make inaccurate factual or legal assertions during summation, and they 

must confine their remarks to evidence revealed during trial, and reasonable 

inferences to be drawn from the evidence." State v. Rodriguez, 365 N.J. Super. 

38, 48 (App. Div. 2003) (citing State v. Smith, 167 N.J. 158, 178 (2001)). 

However, "[p]rosecutors are permitted to respond to arguments raised by 

defense counsel as long as they do not stray beyond the evidence." State v. 

Morais, 359 N.J. Super. 123, 131 (App. Div. 2003). 

"Whether particular prosecutorial efforts can be tolerated as vigorous 

advocacy or must be condemned as misconduct is often a difficult determination 

to make. In every instance, the performance must be evaluated in the context of 

the entire trial, the issues presented, and the general approaches employed." 
20 A-4202-17T2

State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify reversal, 

the prosecutor's conduct must have been 'clearly and unmistakably improper,' 

and must have substantially prejudiced defendant's fundamental right to have a 

jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 

515, 575 (1999). 

In making this determination, factors to be considered include whether 

defense counsel made a timely objection, whether the remark was withdrawn 

promptly, whether the trial judge ordered the remarks stricken, and whether the 

judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 

322-23 (1987). See also State v. Smith, 212 N.J. 365, 403 (2012). "If no 

objection is made, the remarks usually will not be deemed prejudicial." 

Ramseur, 106 N.J. at 323. See also State v. R.B., 183 N.J. 308, 333 (2005) 

("Generally, if no objection was made to the improper remarks, the remarks will 

not be deemed prejudicial." (quoting Frost, 158 N.J. at 83)).

Here, during summation, the State made the following comments 

regarding defendant's whereabouts after the shooting: 

[B]ased upon all this information that the officers were 

provided they identified the killer, [defendant]. They 

start to look for him. They didn't find him in Paterson, 

and they didn't find him in Passaic County. They didn't 

even find him in New Jersey. They found him in Fort 

Lauderdale, Florida. Did you hear any testimony about 
21 A-4202-17T2

anyone else being found outside of the State of New 

Jersey? Only [defendant]. Why? Why was he in Fort 

Lauderdale, Florida after someone was just murdered? 

Because he murdered him. Because he took his life for 

nothing. Because he wanted to avoid this. He wanted 

to avoid . . . . [Green's] day for justice.

Defendant did not object to the prosecutor's remarks during summation. 

After the judge delivered the final jury instructions and inquired whether there 

were any exceptions to the charge, defense counsel responded in the negative 

and noted there was no "need [for] a charge on flight because [the prosecutor] 

argued it in his summation." We reject defendant's contention that defense 

counsel's comment constituted an objection to the prosecutor's remarks, 

permitting us to presume that the remarks were not deemed prejudicial at the 

time they were made, and requiring reversal only upon a finding of plain error. 

To find plain error, the error must be "clearly capable of producing an unjust 

result." R. 2:10-2. "The error must have been of sufficient magnitude to raise 

a reasonable doubt as to whether it led the jury to a result it would otherwise not 

have reached." State v. Weston, 222 N.J. 277, 294 (2015) (quoting Pressler & 

Verniero, cmt. 2.1 on R. 2:10-2 (citations omitted)). Defendant bears the burden 

of proving plain error. Id. at 295.

"Departure from the scene after a crime has been committed, of itself, does 

not warrant an inference of guilt." State v. Sullivan, 43 N.J. 209, 238 (1964). 
22 A-4202-17T2

"For departure to take on the legal significance of flight, there must be 

circumstances present and unexplained which, in conjunction with the leaving, 

reasonably justify an inference that it was done with a consciousness of guilt 

and pursuant to an effort to avoid an accusation based on that guilt." State v. 

Ingram, 196 N.J. 23, 46 (2008) (quoting State v. Mann, 132 N.J. 410, 418-19 

(1993)). However, such circumstances need not "'unequivocally support a 

reasonable inference' of the defendant's guilt." State v. Randolph, 228 N.J. 566, 

595 (2017) (citation omitted).

Here, the prosecutor's remarks constituted fair comment on the evidence 

presented at trial. While numerous party attendees were interviewed by police 

following the shooting, defendant's whereabout were unknown and he was not 

located until almost a year later in Florida. Thus, it was entirely reasonable for 

the prosecutor to suggest to the jury that defendant's purpose in leaving the State 

was to avoid accusation or apprehension. The fact that the judge determined 

there was insufficient evidence to justify a flight charge does not obviate the 

reasonableness or the propriety of the prosecutor's remarks in the circumstances 

of this case. Nor does it constitute plain error, particularly in light of the judge's 

clear instruction to the jury that "summations of counsel are not evidence," and 
23 A-4202-17T2

"are not controlling," and that the jury "must rely solely upon [its] understanding 

and recollection of the evidence."

Defendant also challenges the following unobjected-to remarks, 

characterizing them as the prosecutor "improperly allud[ing] to witness 

intimidation[:]"

People are murdered and witnesses don't want to talk. 

Why do you think that is? Why do you think these 

witnesses [want to] have nothing to do with this case? 

. . . . You need to appreciate their position. Appreciate 

what's being asked of them. They are being asked to 

come in through those doors, walk in, sit down on that 

witness stand and point a finger at a murderer. They're 

being asked to point a finger at the same person who 

murdered [Green] over nothing.

Think back to jury selection. . . . In that first 

moment you learned that this was a murder trial. That 

you were potentially going to be a juror on a murder 

trial. Think about that . . . first feeling you had.

Now, try to imagine how these witnesses felt to 

be a witness on a murder trial, dark trial. Imagine

what's going through their heads. Imagine what they're

feeling. And . . . then, decide what's scarier, law 

enforcement intimidation or the streets? At the end of 

the day the purpose of all of this is to seek the truth. 

Ask yourselves were the witnesses truthful? Did they 

tell the truth to the police when they first met? Did they 

tell the truth when they were on this witness stand? Did 

they tell us everything that they know?
24 A-4202-17T2

During summation, defense counsel forcefully attacked the credibility of 

various party attendees who testified for the State, and poignantly pointed out 

that some witnesses only incriminated defendant after they were intimidated and 

threatened during aggressive police questioning. In particular, defense counsel 

stated "the only way [police] could get anything incriminating about [defendant] 

from . . . Miguel was to arrest him for a murder he didn't commit." Defense 

counsel continued that Tyrell, who had a "serious criminal history" which 

included "a gun conviction," testified "about the kind of pressure he was under 

to get him to say" he "saw [defendant] with a gun." Similarly, according to 

defense counsel, Buchanan "also, succumbed to his own fears about what would 

happen to him if he didn't tell the police what they wanted to hear." The 

prosecutor's challenged remarks addressed the witnesses' reluctance to testify 

and responded to defense counsel's attacks on their credibility. 

Considered in the context of the evidence presented, defense counsel's 

forceful attacks, and the prosecutor's otherwise proper summation, we are 

convinced the comments were not "so egregious that [they] deprived defendant 

of a fair trial," State v. Papasavvas, 163 N.J. 565, 616 (2000), or "clearly capable 

of producing an unjust result." R. 2:10-2. See State v. Echols, 199 N.J. 344, 

360 (2009) (finding that the prosecutor's comments "intend[ing] to show that 
25 A-4202-17T2

several witnesses were threatened and intimidated as part of the State's effort to 

explain the change in their anticipated testimony" was not "so egregious" as to 

deprive defendant of a fair trial). In sum, we find none of the prosecutor's 

remarks met the plain error standard of review, and the failure to object suggests 

that defense counsel did not believe the remarks were prejudicial at the time 

they were made. See R.B., 183 N.J. at 333.

Finally, in Point V, defendant challenges his sentence as "excessive," 

arguing the judge "failed to give meaningful credit to defendant's mitigating 

factors," and "erroneously cited aggravating factors three and nine because 

defendant failed to show remorse." We disagree.

"Appellate review of the length of a sentence is limited." State v. Miller, 

205 N.J. 109, 127 (2011). We will

affirm the sentence unless (1) the sentencing guidelines 

were violated; (2) the aggravating and mitigating 

factors found by the sentencing court were not based 

upon competent and credible evidence in the record; or 

(3) "the application of the guidelines to the facts of [the] 

case makes the sentence clearly unreasonable so as to 

shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in 

original) (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)).]
26 A-4202-17T2

At sentencing, the judge found mitigating factor seven, N.J.S.A. 2C:44-

1(b)(7), based on defendant having previously led "a law abiding life," and, as 

"a non[-]statutory [mitigating] factor," the fact that defendant was "employed." 

Relying on State v. Carey, 168 N.J. 413 (2001) and State v. Rivera, 252 N.J. 

Super. 142 (App. Div. 1991), the judge found aggravating factor three, N.J.S.A. 

2C:44-1(a)(3), based on defendant's "risk of re-offending," and aggravating 

factor nine, N.J.S.A. 2C:44-1(a)(9), based on the need for deterrence. 

In Carey, our Supreme Court explained that the defendant's denial of 

responsibility for the crash in a vehicular homicide case after the jury returned 

a guilty verdict "does not irrefutably prove that defendant is likely to reoffend, 

but it does provide support for the trial court's conclusion" at sentencing "that 

defendant was likely to re-offend." 168 N.J. at 427. Likewise, in Rivers, after 

defendant was found guilty by a jury of various assault and weapons related 

offenses, we held that the "[d]efendant's consistent denial of involvement and 

his lack of remorse indicate[d] that a prison sentence [was] necessary to deter 

defendant from similar conduct in the future, and therefore, the trial court 

properly found aggravating factor[s] N.J.S.A. 2C:44-1a(9)" and "N.J.S.A. 

2C:44-1a(3) . . . because there [was] a risk that defendant [would] commit 

another offense." 252 N.J. Super. at 153-54.
27 A-4202-17T2

Here, regarding aggravating factor N.J.S.A. 2C:44-1(a)(3), the judge 

stated he was "disturbed by a continued lack of remorse," and "denial [of] 

responsibility on [defendant's] part." Regarding aggravating factor N.J.S.A. 

2C:44-1(a)(9), the judge explained that "by everyone's admission," this was a 

"heartless act" that showed "depravity" on defendant's part. As a result, "the 

need for public safety" as well as "both specific and general" "deterrence" were 

"heightened." The judge explained that defendant's "lack of remorse" and 

"consistent denial of wrongdoing" established a need for "specific" deterrence. 

Additionally, "general" deterrence was warranted because "the message has to 

go out that you cannot senselessly take other people's lives." 

Giving "substantial weight" to the aggravating factors and "nominal 

weight" to the mitigating factors, the judge determined that "the aggravating 

factors . . . substantially outweigh[ed] the mitigating factors" to justify a 

sentence "beyond the mid[-]range" on all counts. See Fuentes, 217 N.J. at 73 

("[R]eason suggests that when the mitigating factors preponderate, sentences 

will tend toward the lower end of the range, and when the aggravating factors 

preponderate, sentences will tend toward the higher end of the range." (quoting 

State v. Natale, 184 N.J. 458, 488 (2005))). Accordingly, the judge sentenced
28 A-4202-17T2

defendant to twenty-two years, subject to NERA, on count one,

4

"merged" the 

weapons offenses "for purposes of sentencing," and imposed a concurrent eightyear term, with forty-two months of parole ineligibility, on count two. 

Applying our deferential standard of review, we are satisfied that the 

judge's findings regarding aggravating and mitigating factors are amply 

supported by the record, that the sentence imposed was in accordance with 

guidelines enunciated in the Code of Criminal Justice, and that the aggregate

sentence is not manifestly excessive or unduly punitive, and does not constitute 

an abuse of discretion or shock our judicial conscience.

Affirmed.

 

4

 Aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1) carries "an ordinary 

term of imprisonment between [ten] and [thirty] years." N.J.S.A. 2C:11-4(c).