SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4855-17T1

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

WAQAS IBRAR, 

Defendant-Appellant.

________________________

Argued September 15, 2020 – Decided

Before Judges Fisher, Moynihan, and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 16-07-2059.

James K. Smith, Jr., Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; James K. Smith, Jr., of 

counsel and on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued the 

cause for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney; Erin M. Campbell, on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

November 25, 2020
2

A-4855-17T1

PER CURIAM

Found guilty by jury on two counts of the second-degree vehicular 

homicide, N.J.S.A. 2C:11-5(a), of Tyler Sellers and Sabore Worell, who were 

struck and killed by the car he was driving (defendant's car) as they crossed 

Route 440 (the highway) at a traffic-controlled intersection, defendant Waqas 

Ibrar appeals from those convictions, arguing:

IN A CASE WHERE CAUSATION WAS THE 

MAJOR ISSUE . . . DEFENDANT WAS DENIED A 

FAIR TRIAL BY THE STATE'S ACCIDENT 

RECONSTRUCTION EXPERT'S OPINION 

TESTIMONY THAT, BASED UPON HIS 

INTERPRETATION OF A MOTOR VEHICLE 

STATUTE, THE [DECEDENTS'] DISREGARD OF 

THE TRAFFIC SIGNALS WAS "NOT A FACTOR IN 

THE CRASH." (Not Raised Below) THE ERROR 

WAS NOT CORRECTED BY THE JURY CHARGE, 

WHICH FAILED TO GIVE THE JURORS 

GUIDANCE ON THE LEGAL RESPONSIBILITIES 

OF PEDESTRIANS ENTERING A CROSSWALK.

A. The Expert Testimony.

B. The Jury Charge And Summations.

C. It Was Improper For The State's Expert To 

Give A Legal Opinion That Under "Title 

39," The [Decedents] Had The Right Of 

Way Notwithstanding The "Don't Walk" 

Signal, And That Their Disregard Of The 

Traffic Signal [W]as "Not A Factor" In The 

Crash.
3

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D. The Error Was Not Corrected When The 

Judge Simply Read Two Sections Of 

[N.J.S.A.] 39:4-32 To The Jury In His 

Charge Without Explaining How The Laws 

Governing Pedestrians Crossing 

Intersections Applied In This Case. 

In his pro se brief, defendant adds:

[DEFENDANT'S] RIGHT TO A FAIR TRIAL WAS 

PREJUDICED BY THE PROSECUTOR'S 

ELICITATION OF IMPROPER TESTIMONY FROM 

THE STATE'S ACCIDENT RECONSTRUCTION 

EXPERT AND BY THE PROSECUTOR'S 

IMPROPER COMMENTS DURING SUMMATION.

Unpersuaded, we affirm.

At trial, the jury considered evidence proffered in support of the parties' 

varied theories on the cause of the accident. The State's accident reconstruction 

expert,

1 Sergeant Bruce Miller, expressed the State's theory that the passenger 

side of defendant's car struck the decedents while they were in the center lane

of the southbound side as they lawfully finished crossing the highway, where 

the speed limit was incorrectly posted at forty miles per hour, though the actual 

speed limit was fifty miles per hour. Defendant argued the decedents' crossing 

against the traffic signal was an intervening cause.

1

 Following the assistant prosecutor's voir dire, defendant did not object when 

the State offered its witness as an expert.
4

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Miller examined defendant's car, viewed, photographed and diagramed 

the crash scene, met with the officers who responded to the crash scene and

reviewed their reports and photographs, as well as video footage of the crash

and a crash data retrieval (CDR) report of information retrieved from the event 

data recorder (EDR) recovered from defendant's car. He testified as to 

defendant's car's speed, engine RPMs, accelerator and brake compression and 

steering at various times relative to the deployment of the car's airbags. We 

synopsize that testimony in table form:

TRG2(in 

seconds)

speed 

(mph)

accelerator 

pedal

RPMs brake steering3

-4.7 110.6 compressed

100%

5500 off +1.5

-4.2 110.6 100% 5500 off +1.5

-3.7 110.0 95% 5400 off +3.0

-3.24

-2.7 108.7 100% 5100 off +3.0

2

 Miller testified these letters stood for "[t]riggering of the airbag"; the time in 

seconds relates to the time the airbag triggered.

3

 Miller explained this figure was the number of degrees in which the car was 

being steered. A positive reading means the car was being steered toward the 

driver side, a negative reading meant steering toward the passenger side.

4

 At trial, -3.2 seconds was noted as a TRG entry, but the assistant prosecutor 

did not ask Miller about any measurements specifically relating to it.
5

A-4855-17T1

-2.2 107.5 100% 5100 off +4.5

-1.7 106.3 100% 4900 off +3.0

-1.2 105.6 13% 5200 off +4.5

-0.7 105 0% 4900 off -4.5

-0.2 99.4 0% 4300 on +45.0

0.0 96.9 0% 4100 on +36.0

Miller said he deduced defendant had not applied the brake at -0.2

seconds, but had removed his foot from the accelerator at -1.2 seconds, the point 

at which he testified defendant likely saw the decedents, as also evidenced by 

the car's "rock in the steering wheel" followed by its swerve to the left. Miller 

also opined that pedestrian collisions do not usually trigger airbags, and that the 

airbags deployed in defendant's vehicle when he struck the guardrail after he 

struck the decedents.

From the video, Miller perceived both decedents in the crosswalk at 

"about the midway point . . . on the other side of the . . . metal guardrail . . . that 

divides . . . the north and southbound lanes" of the highway. He calculated their 

walking speed at 3.75 feet per second using the time elapsed on the video's clock 

and the measurements of the crash site. Using that speed as a constant, he 
6

A-4855-17T1

calculated that 13.86 seconds elapsed from the time the decedents entered the 

highway from the eastern side and crossed "three lanes of northbound traffic to 

[the point] where they were struck." Based on the speed of defendant's vehicle 

at the point of impact—105 miles per hour—he also calculated defendant's car 

was 2153 feet from the point of impact when the decedents entered the 

crosswalk.

Miller obtained from the New Jersey Department of Transportation the 

schematic for the traffic-control devices for the intersection, including the 

position and duration of three-cycle pedestrian signals: seven-second white 

"walk," thirty-one-second flashing red "don't walk" and seven-second steady red 

"don't walk" signals. He calculated the decedents entered the crosswalk "as the 

signal went to . . . flashing."

Miller testified when "[t]he walk is white, you can enter the crosswalk. 

When it's steady, you're not allowed by law to enter the crosswalk[,]" and when 

it is flashing, "[y]ou can still enter the crosswalk." He continued his colloquy 

with the assistant prosecutor:

[Assistant prosecutor:] And, if you're in the crosswalk 

during that flashing sign, are you allowed, by the law, 

to continue to cross?

[Miller:] Yes, you are.
7

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[Assistant prosecutor:] Okay. And, what is specifically 

the law in that regard?

[Miller:] It is [N.J.S.A.] 39:4-32 I believe. [N.J.S.A.] 

39:4-32[(c)], as in Charlie.

[Assistant prosecutor:] All right. I'm going to show you 

joint exhibit S-140. You just mentioned a New Jersey 

motor vehicle statute. And, . . . is that the statute that 

you were referring to?

[Miller:] Yes, it is.

[Assistant prosecutor:] And, is [(c)] located in that 

statute?

[Miller:] Yes, it is.

[Assistant prosecutor:] Move to publish, Your Honor, 

S-140.

[The trial court:] Any objection? It's agreed to?

[Defendant's attorney:] No objection.

Miller then read aloud N.J.S.A. 39:4-32(c), which provides: "A pedestrian 

crossing or starting across [the] intersection on a ['

]go[

'

] or green signal, but who 

is still within [the] crosswalk when the signal changes, shall have the right of 

way until the pedestrian has reached the opposite curb or place of safety." 

Defense counsel objected when the assistant prosecutor asked Miller what 

"place of safety" meant, prompting the trial court to conduct a N.J.R.E. 104 

hearing.
8

A-4855-17T1

Miller testified at the hearing that The Manual of Uniform Traffic Control 

Devices (the Manual) is used by law enforcement to determine a "place of 

safety," but could not confirm that the Manual designated a center median in a 

roadway as such. After the hearing, the trial court agreed with defense counsel's 

argument that Miller could not testify that, as a matter of law, the median barrier 

was not a place of safety. Defense counsel, however, "one-hundred percent" 

accepted that Miller could testify that the decedents had the right to get "all the 

way across" to the other side of the highway once they entered the crosswalk 

because "the law says they're entitled to go to the other end" of the crosswalk, 

telling the trial court he would "cross-examine [Miller] on that." Defense 

counsel said he was "not even going to suggest that [the decedents were]

required to stop at [the] barrier."

The next trial day, Miller opined defendant's speed and lack of control 

were contributing factors to the crash, but the decedents' actions were not a 

factor because "they were in the crosswalk. They were at the halfway mark 

when the signal changed to 'don't walk.' And according to [N.J.S.A. 39:4-32(c)],

if they're in the crosswalk once the signal changes, they have the right of way to 

make it to the opposite curb."
9

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Defendant now argues Miller "testified that based on his interpretation of 

[N.J.S.A. 39:4-32(c)], the [decedents] had the right of way even after having 

entered the crosswalk in the face of a flashing '[d]on't [w]alk' signal," thus 

improperly giving a legal opinion to the jury—an area beyond the scope of his 

expertise—thereby denying defendant's right to a fair trial.

Although we review a trial court's rulings on evidence for abuse of 

discretion, Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 

(2010), including the grant or denial of an application to preclude expert 

testimony, Townsend v. Pierre, 221 N.J. 36, 52-53 (2015), here defendant did 

not object to Miller's opinion that the decedents had the right of way according 

to his interpretation of N.J.S.A. 39:4-32(c). Hence, we heed our Supreme 

Court's directive that,

except in extraordinary circumstances, a claim of error 

will not be entertained unless it is perfectly clear that 

there actually was error. In other words, if upon a 

timely objection a different or further record might 

have been made at the trial level, and the claim of error 

might thereby have been dissipated, we will neither 

reverse on an assumption that there was error nor 

remand the matter to explore that possibility.

[State v. Macon, 57 N.J. 325, 333 (1971).]

Nor will we reverse unless the error was "of such a nature as to have been clearly 

capable of producing an unjust result." R. 2:10-2. In the context of a jury trial, 
10 A-4855-17T1

relief will be afforded when the possibility of an unjust result is "sufficient to 

raise a reasonable doubt as to whether the error led the jury to a result it 

otherwise might not have reached." Macon, 57 N.J. at 336.

Recognizing that it is the court's function, not that of an expert, to interpret 

the law, Bedford v. Riello, 392 N.J. Super. 270, 278 (App. Div. 2007), modified

on other grounds, 195 N.J. 210 (2008), we determine Miller did not interpret the 

law. Like defendant's accident reconstruction expert, Robert Klingen, Miller 

cited an authority as the basis for his opinion that decedents had the right of way 

when crossing the highway.5

Neither expert gave an opinion about what the law was as much as they 

gave opinions based on their perceptions of what the law was. And Miller was 

well-crossed about his reliance on the statute in forming his opinion. As 

defendant states in his merits brief, "[w]hen asked [on cross-examination] about 

the conclusions in his report that 'driver actions [were a] major cause' and 

'[p]edestrian actions [were] not a factor,' Miller agreed that his conclusions were 

5

 Klingen was asked on direct examination, "[b]ased upon your understanding 

of the law, would a pedestrian be permitted to enter the intersection from the 

curb during this flashing [']don't walk['] signal?" Klingen answered, "[n]o," and 

explained his answer was based on the Manual, and that "[t]he flashing [']don't 

walk[']. . . means you cannot enter the crosswalk at that point. And it's just 

letting you know the signal is about to change and it allows you to complete 

your crossing if you've already started."
11 A-4855-17T1

based 'on the fact that [he] found that the right of way was violated by the 

driver'"; and he explained "that his conclusion was based on the speed of the 

driver as set forth in the EDR report and the 'timing sequence of the light'" ; and 

when asked "where [he] got authority for his testimony that 'when you enter the 

intersection on the flashing [']don't walk['] . . . you're permitted to enter the 

intersection and cross,' Miller responded, 'Title 39.'"

During summation, defense counsel stressed the importance of Miller's

faulty perception of the law to his conclusion: He "had to give you that the 

right-of-way was in the favor of the pedestrians . . . because otherwise causation 

becomes a serious problem [for the State]." Counsel continued, rhetorically 

asking the jury: "What was his interpretation of what he saw and what he was 

able to conclude from the evidence that he had? He said three things." Among 

the State's expert's assumptions defense counsel delineated was: "The law says 

that pedestrians can enter the crosswalk on a flashing [']don't walk.[']" Counsel 

then played back Miller's testimony on that point, including Miller's concession 

that the Manual provided "[a] flashing upward hand symbolizing a [']don't walk[']

signal indicates . . . that a pedestrian shall not start to cross the roadway" and 

contrasted that testimony to the replayed testimony of Klingen.
12 A-4855-17T1

We disagree with defendant's contention that Miller rendered an opinion 

on the law. The fact that the trial court did not sua sponte prohibit Miller from 

including his interpretation of the traffic statute as a basis for his opinion on the 

factors that caused the accident did not amount to plain error. The judge need 

not have, and should not have, struck what defendant claimed to be Miller's 

"incorrect" testimony that the pedestrians had the right of way. As defense 

counsel told the jury in summation: "[Y]ou ultimately have to determine who 

had the right[-]of[-]way." It was left for the jury to consider what caused the 

accident.6

As the jury in this case was instructed, whether the expert's reliance on,

and understanding of, the law on which his opinion was based was correct was 

a decision it had to make in determining "whether the facts on which the answer 

or testimony of [the] expert is based actually exist"; the jury's acceptance or 

rejection of the expert testimony depended, to some extent, upon its "findings

as to the truth of the facts relied upon." See Model Jury Charges (Criminal), 

"Expert Testimony" (rev. Nov. 10, 2003).

6

 Defendant does not argue that Miller improperly testified that defendant's 

conduct was the proximate cause of the accident, see Kreis v. Owens, 38 N.J. 

Super. 148, 155-56 (App. Div. 1955), or improperly compared defendant's 

negligence to that of the decedents, see Nesmith v. Walsh Trucking Co., 123 

N.J. 547, 548-49 (1991).
13 A-4855-17T1

Defense counsel's decision to allow the State's expert to testify about the 

law without objection, and his examination of the defense expert's perception of 

the law, also evokes our Supreme Court's ruling that when counsel acquiesces

to a "mistake" or "error" at trial, such as the introduction of otherwise

inadmissible evidence, that mistake is generally no longer a basis on appeal.

State v. A.R., 213 N.J. 542, 561 (2013). "[I]f a party has 'invited' the error, he

is barred from raising an objection for the first time on appeal." Ibid.

Defense counsel's extensive cross-examination of Miller, his introduction

of expert testimony contravening the State's expert and his emphasis of the

experts' contrasting theories appear part of a plan to discredit the State's

evidence which included defendant's operation of his car at speeds in excess of

100 miles per hour that resulted in a horrific collision with the decedents, whose

bodies were thrown 148.68 feet and 135.67 feet, respectively, from the 

crosswalk.7 Any error—which we do not suggest occurred—is disqualified

under the invited-error doctrine because defendant "induced, encouraged in or

consented to" it, see ibid., and he cannot now "manipulat[e] the system" and lead

the court into error in pursuit of a failed trial tactic, see id. at 561-62.

7

 Worrell's severed leg came to rest 212.47 feet from the area of impact.
14 A-4855-17T1

Defendant also argues the trial court's jury instructions "fail[ed] to address 

the contested issue" of whether the decedents, "who had entered the crosswalk 

on a flashing '[d]on't [w]alk' signal, still had the right[-]of[-]way." Specifically, 

defendant contends the trial court should have instructed the jury (1) on that 

section of the Manual that proscribes pedestrians from starting across a roadway 

on a flashing "don't walk" signal, but allows pedestrians to continue crossing if 

they started to cross on a steady walk signal, and (2) on N.J.S.A. 39:4-32(d),

which provides: "No pedestrian shall leave a curb or other place of safety and 

walk or run into the path of a vehicle which is so close that it is impossible for 

the driver to yield or stop."

Although defendant relies on State v. Parkhill, 461 N.J. Super. 494 (App. 

Div. 2019), in which we held the trial court committed plain error by failing to 

fully instruct the jury on causation and the motor vehicle provision regulating 

pedestrian crossings outside a crosswalk, id. at 497, the trial court in this case 

delivered both prongs of the causation instruction to the jury, see id. at 503-04,

as well as instructions on N.J.S.A. 39:4-32(a) and (c), both of which regulate 

pedestrian crosswalk crossings. Indeed, defense counsel anticipated the 

instructions and addressed both prongs in summation. 
15 A-4855-17T1

Reading the charge as a whole, see State v. Adams, 194 N.J. 186, 207 

(2008), the instruction allowed the jury to consider whether "but-for" 

defendant's conduct the decedents' deaths would not have occurred and whether 

the decedents' volitional act of crossing the highway rendered the result of 

defendant's actions "too accidental in its occurrence or too dependent on 

another's volitional act to have a just bearing on [defendant's] liability." See

State v. Eldridge, 388 N.J. Super. 485, 500 (App. Div. 2006) (emphasis in 

original); see also N.J.S.A. 2C:2-3(c).

We agree with the trial court's decision not to include the Manual's 

provisions in the charge. It was not the law. Defendant's expert cited the 

Manual, published by the United States Department of Transportation, Federal 

Highway Administration, to discredit the State's expert. The trial court correctly 

refused to give the Manual status by quoting it, an act that would have invaded 

the jury's province to analyze the experts' bases of opinion.

We also determine the statutes the trial court quoted in its charge amply 

provided the jury with the law necessary to determine who had the right-of-way. 

Subsection (a) pertained to the prohibition against crossing against a stop signal 

at a crosswalk. Subsection (c) pertained to pedestrians "crossing or starting 

across the intersection on a 'go' or green signal." Because the decedents were 
16 A-4855-17T1

already in the highway—whether it was against or with a traffic signal—

subsection (d) is inapposite because it pertains to pedestrians leaving a curb or 

other place of safety and walking into the path of a vehicle that is so close so as 

to make stopping or yielding impossible. Those were not the circumstances of 

this case.8

The balance of defendant's arguments regarding the jury charge are 

without sufficient merit to warrant discussion. R. 2:11-3(e)(2). The trial court 

was not required to make defendant's arguments in charging the jury. See State 

v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 

(1999) ("[A] defendant is not entitled to have the jury instructed in his own 

words . . . . He is only entitled to an adequate instruction of the law."). Further, 

although defendant argues the trial court's response to the jury's request to 

"explain causation"' was insufficient, the court responded to the exact request 

made by the jury. See State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 

1994) ("An appropriate judicial response [to a juror's request for clarification] 

requires the [trial court] to read the question with care to determine precisely 

8

 We note that defendant, in his merits brief, acknowledges that although his 

counsel proposed that subsection (d) be included in the charge, he added that 

they would "deal with" that issue later; we do not see that defendant later raised 

the issue or explained why it was applicable.
17 A-4855-17T1

what help is needed [and then respond accordingly]."). The jury did not ask for 

"reference[s] to the facts of the case," which defendant contends should have 

been included in the court's response.

We fully appreciate a trial court's duty to mold jury instructions to the 

facts of the case, Toto v. Ensuar, 196 N.J. 134, 144 (2008), and tailor the charge 

to enable the jury to review the evidence in the context of the parties' theories, 

Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002). But, during the charge 

conference, defendant expressed that there was no need for that exercise:

I understand there's language in the model jury charge 

that the [c]ourt can supplement each version of the 

State's version of the events and the defense version of 

the events. Neither one of us are asking the [c]ourt to 

do that. So I don't think we need to do that in this 

particular case. I think it's pretty clear what both sides 

are arguing.

Finally, in his pro se brief defendant argues the assistant prosecutor's 

summation deprived defendant of a fair trial because he: misrepresented and 

mischaracterized the defense expert's testimony and disparaged him; provided 

the jury with an improper factual example of causation; wrongfully implied and 

invited the jury to speculate, without evidential support, defendant was racing;

improperly urged the jury to find defendant guilty because he lied to police; and 

implied there was additional evidence to prove defendant's guilt. Defendant 
18 A-4855-17T1

argues these averred improprieties cumulatively denied defendant the right to a 

fair trial. 

We do not discern the same freighted weight to the assistant prosecutor's 

remarks as does defendant. The comments were sufficiently related to the 

evidence presented at trial and were within the bounds of the considerable 

leeway afforded prosecutors in making "vigorous and forceful closing 

argument[s] to the jury." See State v. Harris, 141 N.J. 525, 559 (1995).

Just as defense counsel attempted to disparage the State's expert's 

causation testimony, the assistant prosecutor attempted to discredit the defense 

expert's opinion and basis therefor. In this battle of the experts, we discern no 

impropriety in the State's attempt to "balance the scales" regarding the expert 

testimony. See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001). The 

assistant prosecutor's comments pertained to the evidence presented and the 

rational inferences that could be drawn therefrom. 

Defendant also argues the assistant prosecutor's attempt to exemplify 

causation misrepresented the law. Defense counsel's objection interrupted the 

assistant prosecutor's example of someone throwing a brick from an overpass 

onto a speeding car that then crashes into other cars. The assistant prosecutor 

never completed that part of his argument, agreeing with the trial court to "move 
19 A-4855-17T1

on" with his summation. The trial court instructed the jury that the court was 

the sole source of the law and that the jury should disregard any contrary 

instruction.

The assistant prosecutor's comment about defendant's friend trailing 

behind from the restaurant they simultaneously left prior to the crash pertained 

to a portion of defendant's initial statement to police.

9 That statement supported 

the State's contention that defendant was traveling much faster than his friend 

who arrived at the accident site after defendant, contradicting defendant's 

statement that his speed was fifty to fifty-five miles per hour. The assistant 

prosecutor did not ascribe the nefarious interpretation of that comment advanced 

by defendant, that defendant was "engaged in some sort of competitive speeding, 

racing[] or other orchestrated untoward activity."

The assistant prosecutor's argument to the jury that if defendant lied to 

police about his speed, he is guilty, connected defendant's attempt to evade 

responsibility with his consciousness of guilt. The assistant prosecutor prefaced 

that remark by stating the untruth was "one last bit of evidence" to meet the 

State's burden of proving defendant guilty beyond a reasonable doubt. The 

9

 Defendant told police that after eating at the restaurant, they—everyone in his 

part—left and that his friend was following him, "going in the same direction."
20 A-4855-17T1

comment, viewed in context, see State v. Darrian, 255 N.J. Super. 435, 454-55 

(App. Div. 1992), did not invite jury speculation or suggest unpresented 

evidence. 

Save for the objection to the assistant prosecutor's causation example, 

defendant did not object to the remarks now challenged, "suggest[ing] that 

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

were made." State v. Frost, 158 N.J. 76, 84 (1999). "The failure to object also 

deprive[d] the court of an opportunity to take curative action." Ibid. We 

determine none of the assistant prosecutor's remarks warrant reversal because, 

individually or cumulatively, they were not so egregious to substantially 

prejudice defendant's right to a fair trial. State v. Timmendequas, 161 N.J. 515, 

575 (1996).

The balance of defendant's arguments lacks sufficient merit to warrant 

discussion. R. 2:11-3(e)(2).

Affirmed.