SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3030-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

VINCENT G. SMITH, a/k/a 

VINCENT WARNER and

VINCENT GLASCO,

Defendant-Appellant.

____________________________

Submitted January 8, 2018 – Decided

Before Judges O'Connor and Vernoia. 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 

13-12-3157.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Daniel V. Gautieri, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Robert D. Laurino, Acting Essex County 

Prosecutor, attorney for respondent (Stephen 

A. Pogany, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

July 12, 2018
2 A-3030-15T1

Defendant Vincent Smith appeals his convictions and sentence 

following a jury trial for aggravated assault and burglary. Based 

on our review of the record and defendant's arguments under the 

applicable legal principles, we affirm defendant's convictions,

vacate the court's order imposing consecutive sentences and 

denying defendant an award of jail credits, and remand for 

reconsideration of the imposition of consecutive sentences and the 

denial of jail credits. 

I.

Defendant was charged in an indictment with second-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-degree 

terroristic threats, N.J.S.A. 2C:12-3(a), second-degree burglary,

N.J.S.A. 2C:18-2(a)(1), fourth-degree unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The court 

dismissed count two prior to trial. 

Co-defendant Shahid Salaam was charged in the indictment with 

third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count 

three), and third-degree burglary, N.J.S.A. 2C:18-2 (count five). 

Salaam pleaded guilty to two criminal charges, a violation of 

probation on two burglary charges, and a motor vehicle offense. 

As part of his plea agreement, he agreed to "cooperate in any 
3 A-3030-15T1

future proceedings against" defendant in exchange for the State's 

recommendation that he receive a time-served sentence. 

The evidence at defendant's trial showed that on June 14,

2013, Salaam and defendant went to the former United Hospital, a 

building in disrepair that was no longer in use. They went to the 

building to steal copper and brass pipes from its interior because 

of the metal's resale value. 

Salaam had previously entered and stolen scrap metal from the 

building. He testified that he entered the building through holes 

he made in windows, and other points of entry and egress in the 

building, so he could "get out from various positions." He 

explained the holes had boards placed over them so it appeared 

there were boarded windows when "it really ain't boarded. You 

just pull the board up." 

The building was protected by a twenty-four hour security 

force, cameras and no trespassing signs. The security force 

included armed uniformed guards who had a marked security vehicle. 

The security force's protocol required that the guards attempt to 

apprehend anyone found inside the building. 

Salaam was aware the building was guarded by a security force,

and considered its presence when planning the timing of his 

attempts to take metal from the building. He would arrange for a 
4 A-3030-15T1

driver and a vehicle to be readily available when he exited the 

premises. 

According to Salaam, one week prior to June 14, 2013, he and 

defendant entered the building together to steal metal for resale. 

Salaam used his tools to extract a few hundred dollars worth of 

metals, and left the metals in bags he and defendant intended to 

retrieve at a later time. However, Salaam fell asleep in the 

building, and when he awoke defendant and the bags containing the 

stolen metal were gone. Salaam believed defendant took the bags 

and his tools. 

By June 14, 2013, Salaam located defendant, who explained the 

bags had been placed in another location within the building. 

Defendant agreed to go back to the building with Salaam to retrieve 

the bags. According to Salaam, he and defendant agreed to go to 

the building, where he would retrieve the bags with the stolen 

metals and hand them to defendant as he stood outside of the 

building. Their plan was that defendant would place the bags in 

the driver's vehicle, which would then transport defendant and 

Salaam from the scene. Salaam testified defendant and the driver 

were going to receive "their rightful share" of the proceeds from 

the sale of the stolen metals. 

In accordance with the plan, on June 14, 2013, Salaam entered 

the building alone through a boarded hole while defendant remained 
5 A-3030-15T1

outside. Security guard Todd Thompson patrolled the grounds and 

noticed a truck circling the property. Aware of past break-ins 

at the building, Thompson positioned himself in front of the 

building to investigate. At the same time, Kassim Riddick, the 

head of security from an adjoining property, called Thompson and 

told him to respond immediately because there were two men inside 

of the building.

Riddick and Carl Pemberton, an information technology 

technician for the adjoining property's security cameras, saw 

defendant outside of the building, and ran after him. Salaam,

while still in the building, noticed people pursuing defendant,

and told defendant to come inside of the building. Salaam opened 

a double-door and defendant ran inside. 

Once defendant entered the building, Salaam heard someone 

attempting to pick the lock from the outside and open the door. 

Salaam told defendant: "[D]on't let none of them grab you. If

they try to grab you, you better pick up something and hit one of 

them upside the head with it." 

When Thompson arrived at the building, defendant and Salaam 

were inside and Riddick and Pemberton were yelling at them through 

the double-door. Thompson called for backup, and entered the 

building from another entrance to pursue defendant and Salaam. 
6 A-3030-15T1

When Thompson entered the building, he could be seen by 

defendant and Salaam. They each took bags containing the stolen 

metals and ran down a hallway away from Thompson. According to 

Salaam, he ran ahead of defendant because defendant "was[ not] in 

that good [] of shape." When Salaam arrived at an exit, he waited 

for defendant to reach him. 

Thompson confronted defendant before defendant reached the 

exit. Thompson had his gun drawn. Defendant "took a swing at 

Thompson and it looked like [defendant] swung and swung himself 

around[.]" Thompson fired his gun and shot defendant in the leg. 

When Salaam saw the gun flash, he left the bags, "[j]umped 

through the makeshift window[,]" and fled the scene, leaving 

defendant with Thompson, Pemberton, and Riddick. Thompson 

handcuffed defendant, and called the police and an ambulance. 

Defendant did not testify at trial. He presented one witness,

Dr. Zhongxue Hua, an expert in forensic pathology. Dr. Hua 

testified concerning his examination of defendant's gunshot wounds 

and review of defendant's medical records. He opined that "the 

gunshot entrance wound was in the back of the thigh," and the exit 

wound was "in the front of the leg." The testimony supported 

defendant's argument that he was shot from behind as he fled from 

Thompson, and was not shot from the front in response to his 

alleged assault on Thompson. 
7 A-3030-15T1

The jury found defendant guilty of a lesser-included offense 

under count one of third-degree aggravated assault by attempting 

to cause significant bodily injury to Thompson, and second-degree 

burglary as charged in count four. Defendant was found not guilty 

of the weapons offenses.

The court imposed a four-year year sentence on defendant's 

conviction for aggravated assault and a concurrent eight-year 

sentence subject to the requirements of the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2, on defendant's second-degree burglary 

conviction. The court directed that the sentences be served 

consecutive to a five-year custodial term defendant was serving 

on an unrelated burglary charge. The court awarded 346 days of 

gap time credit, but did not award any jail credits. See N.J.S.A. 

2C:44-5(b)(2). 

Defendant appealed, and offers the following arguments for 

our consideration.

POINT I

BECAUSE THE CIRCUMSTANCES OF DEFENDANT'S ENTRY 

INTO THE HOSPITAL BUILDING WERE AMBIGUOUS, THE 

COURT ERRED IN FAILING TO TAILOR THE BURGLARY 

CHARGE TO THE CRITICAL ISSUE OF WHETHER THE 

DEFENDANT ENTERED WITH THE INTENT TO EVADE A 

POSSIBLE ASSAULT BY HIS PURSUERS OR WITH THE 

INTENT TO COMMIT AN OFFENSE. THE FLAWS IN THE 

CHARGE WERE COMPOUNDED BY THE ACCOMPLICE 

CHARGE, WHICH OMITTED LANGUAGE STATING THAT 

THE DEFENDANT'S INTENT MAY HAVE DIFFERED FROM 

THAT OF HIS CO-DEFENDANT. 
8 A-3030-15T1

A. The Burglary Charge Was Insufficient, As 

It Failed to Adequately Focus the Jurors'

Attention on [Defendant's] Intent at the Time 

of His Entry Into the Hospital Building And 

to Instruct Jurors That There Were Potential 

Non-Criminal Explanations For His Entry.

B. The Accomplice Charge Was Inadequate,

Because It Omitted the Language Contained in 

the Model Charge That Explained How 

[Defendant's] Intent May Have Differed From 

That of His Co-defendant in a Case Where the 

Prosecutor Incorrectly Told Jurors in 

Summation That the Co[-]defendant had the Same 

Intent.

POINT II

THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE 

REPEATEDLY AND UNFAIRLY DISPARAGED THE DEFENSE 

FORENSIC EXPERT AND BOLSTERED THE CREDIBILITY 

OF THE STATE'S WITNESSES IN A CASE WHERE THE 

CREDIBILITY OF THE WITNESSES WAS ESSENTIAL TO 

THE ISSUES OF AGGRAVATED ASSAULT AND SECONDDEGREE BURGLARY.

POINT III

THE MATTER SHOULD BE REMANDED FOR RESENTENCING 

BECAUSE THE COURT FAILED TO PROVIDE ANY 

REASONS FOR RUNNING THE SENTENCE CONSECUTIVE 

TO THE ONE [DEFENDANT] WAS ALREADY SERVING,

AND THE COURT FAILED TO AWARD PROPER JAIL 

CREDIT.

II.

Defendant contends he was deprived of a fair trial and due 

process because the court erred in its jury instructions on 

burglary and accomplice liability. He first claims the court 

failed to instruct the jury with particularity concerning 
9 A-3030-15T1

defendant's intent at the time he entered the building, and should 

have instructed the jury to consider evidence showing a possible 

non-criminal purpose for his entry into the building – to protect 

himself from physical harm from Pemberton and Riddick's pursuit. 

He also claims the court erred by failing to include in the charge 

on accomplice liability an instruction that defendant's intent may 

have differed from Salaam's.

"[A]ppropriate and proper charges [to a jury] are essential 

for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) 

(first alteration in original) (quoting State v. Reddish, 181 N.J. 

553, 613 (2004)). A trial court has an "independent duty . . . 

to ensure that the jurors receive accurate instructions on the law 

as it pertains to the facts and issues of each case, irrespective 

of the particular language suggested by either party." Id. at 159 

(alteration in original) (quoting Reddish, 181 N.J. at 613). 

"Because proper jury instructions are essential to a fair trial,

'erroneous instructions on material points are presumed to'

possess the capacity to unfairly prejudice the defendant." Ibid.

(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

We consider each of the alleged errors under the plain error 

standard, R. 2:10-2, because defendant did not object at trial to 

the jury charges. Under the plain error standard, defendant must 

demonstrate the alleged errors were "clearly capable of producing 
10 A-3030-15T1

an unjust result." R. 2:10-2. In the context of a jury charge,

plain error is a "[l]egal impropriety in the charge prejudicially 

affecting the substantial rights of the defendant and sufficiently 

grievous to justify notice by the reviewing court and to convince 

the court that of itself the error possessed a clear capacity to 

bring about an unjust result." State v. Camacho, 218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams, 194 

N.J. 186, 207 (2008)). We consider the jury instructions "as a 

whole" to determine if an error constitutes plain error. State 

v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183 

N.J. 554, 564 (2005)). Where, as here, there was no objection to 

the charges, "there is a presumption that [a] charge was not [in] 

error and was unlikely to prejudice the defendant's case." State 

v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 

N.J. 325, 333-34 (1971)). 

A.

We first consider defendant's claim the court erred by failing 

to sua sponte advise the jury during the burglary instruction that 

defendant was entitled to an acquittal if it determined defendant 

entered the building to protect himself from Pemberton or Riddick 

or to visit a then-operating business within the building. 

Defendant contends the evidence supported such a charge, and the 

court erred by failing to tailor the jury instruction based on the 
11 A-3030-15T1

evidence as required under State v. Robinson, 289 N.J. Super. 447,

449-50 (App. Div. 1996). We are not persuaded.

In Robinson, we considered the defendant's challenge to a 

jury instruction on the offense of burglary that did not "define 

the specific offense defendant intended to commit after he entered 

the building." Id. at 455. We held that under the circumstances 

presented, it was not plain error for the court to fail to identify 

the specific offense it was alleged defendant intended to commit 

because "the jury was not confronted by conflicting explanations 

as to defendant's purpose in entering the building," and the 

"unequivocal nature of [the defendant's] conduct . . . suggest[ed] 

only a criminal purpose." Ibid. We held that 

where the circumstances surrounding the 

unlawful entry do not give rise to any 

ambiguity or uncertainty as to a defendant's 

purpose in entering a structure without 

privilege to do so, so long as those 

circumstances lead inevitably and reasonably 

to the conclusion that some unlawful act is 

intended to be committed inside the structure,

then specific instructions delineating the 

precise unlawful acts intended are 

unnecessary. 

Id. at 458 (alteration in original).

In contrast, in State v. Marquez, 277 N.J. Super. 162, 169 

(App. Div. 1994), we reversed the defendant's burglary conviction 

because the circumstances surrounding the defendant's entry into 

an apartment were ambiguous and, based on the evidence and the 
12 A-3030-15T1

jury charge, it was not possible to determine if the jury convicted 

the defendant of entering the apartment to commit an offense 

therein as required under N.J.S.A. 2C:18-2, or for a purpose 

insufficient to support a burglary conviction. 

Here, the court instructed the jury on the charge of burglary 

in accordance with the model jury instruction, see Model Jury 

Charge (Criminal), "Burglary in the Second Degree (N.J.S.A. 

2C:18(b))" (rev. March 14, 2016), and also instructed the jury 

that defendant was charged with burglary as Salaam's accomplice. 

The court explained that the State alleged defendant was guilty 

of the burglary committed by Salaam and must find defendant guilty 

of the offense if the State proved beyond a reasonable doubt that 

Salaam committed the offense of burglary, and defendant aided 

Salaam in the planning or commission of the burglary while 

possessing the same criminal state of mind that is required to 

prove the offense against Salaam. 

The court was not required to modify the burglary instruction 

to specify that defendant may have had a lawful purpose for 

entering the building because it was Salaam's entry into the 

building, and defendant's actions as an accomplice, that supported 

defendant's burglary conviction. The evidence showed Salaam had 

only one purpose in entering the building on June 14, 2013: he 

testified he entered the building to complete the theft of the 
13 A-3030-15T1

pipes he and defendant harvested, but did not remove, one week 

earlier. The evidence further showed defendant went to the 

building with Salaam pursuant to their plan to retrieve the stolen 

pipes from the building's interior, with defendant waiting outside 

to receive the stolen metal from Salaam and supervise the getaway 

driver. 

The court was not obligated to instruct the jury about 

alternative purposes for entry into the building because unlike 

in Marquez, 277 N.J. Super. at 169, the evidence here did not 

suggest any ambiguity in Salaam's purpose for which defendant was 

legally responsible because he planned and assisted Salaam in the 

unlawful entry and theft as an accomplice. The evidence showed 

Salaam and defendant shared a singular purpose – Salaam's 

unauthorized entry into the building to commit a theft of the 

stowed bags of metal. The evidence did not give rise to any 

ambiguity of purpose and, therefore, it was unnecessary for the 

court to inform the jury to consider other purported lawful 

purposes for defendant's entry into the building. See Robinson,

289 N.J. Super. at 458. 

Defendant also contends the court erred by omitting language 

from the model jury charge on accomplice liability that explained 

a defendant's "responsibility as an accomplice may be equal and 

the same as [the person] who actually committed the crime[] or 
14 A-3030-15T1

there may be responsibility in a different degree depending on the 

circumstances as you may find them to be." Defendant further 

argues the court erred by failing to instruct the jury that if he 

was found not guilty of acting as Salaam's accomplice on the 

burglary charge, it could find him guilty as an accomplice on a 

lesser included offense if he acted as an accomplice with a purpose 

to commit the lesser included offense. See Model Jury Charge 

(Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)"

(rev. May 22, 1995). 

Defendant's arguments are without merit sufficient to warrant 

a discussion in a written opinion, R. 2:11-3(e)(2), other than to 

note that the record is bereft of any evidence showing defendant 

acted with a purpose other than to assist Salaam in the unlawful 

entry into the building to complete the theft of the metal they 

unlawfully undertook one week before. See State v. Wilder, 193 

N.J. 398, 413-18 (2008) (the trial court has no obligation to 

provide instructions for which there is no support in the 

evidence).

III.

Defendant next argues the prosecutor engaged in prosecutorial 

misconduct that deprived him of his right to a fair trial. More 

particularly, he asserts the prosecutor made inappropriate 

comments and personal attacks during his cross-examination of Dr. 
15 A-3030-15T1

Hua and, during his summation, "repeatedly and ruthlessly 

attacked" Dr. Hua, demeaned the defense, offered improper opinions 

concerning witness credibility, and made arguments that were not 

supported by the evidence. 

"A prosecutor must 'conscientiously and ethically undertak[e] 

the difficult task of maintaining the precarious balance between 

promoting justice and achieving a conviction,' ensuring that at 

all times his or her 'remarks and actions [are] consistent with 

his or her duty to ensure that justice is achieved.'" State v. 

Jackson, 211 N.J. 394, 408 (2012) (alterations in original) 

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). "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." State v. Negron,

355 N.J. Super. 556, 576 (App. Div. 2002). 

In reviewing a claim of prosecutorial misconduct, we 

consider: "whether 'timely and proper objections' were raised;

whether the offending remarks 'were withdrawn promptly'; . . . 

whether the trial court struck the remarks and provided appropriate 

instructions to the jury . . . [and] whether the offending remarks 

were prompted by comments in the summation of defense counsel."
16 A-3030-15T1

State v. Smith, 212 N.J. 365, 403-04 (2012) (internal citations 

omitted). Moreover, "[g]enerally, if no objection was made to the 

improper remarks, the remarks will not be deemed prejudicial." 

State v. R.B., 183 N.J. 308, 333 (2005) (citation omitted). 

"Failure to make a timely objection indicates that defense counsel 

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

made," and "deprives the court of the opportunity to take curative 

action." State v. Timmendequas, 161 N.J. 515, 576 (1999) 

(citations omitted).

In addition, even if the prosecutor exceeds the bounds of 

proper conduct, "[a] finding of prosecutorial misconduct does not 

end a reviewing court's inquiry because, in order to justify 

reversal, the misconduct must have been 'so egregious that it 

deprived the defendant of a fair trial.'" State v. Smith, 167 

N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 

(1999)). "To justify reversal, the prosecutor's conduct must have 

been clearly and unmistakably improper, and must have 

substantially prejudiced [the] defendant's fundamental right to 

have a jury fairly evaluate the merits of his [or her] defense." 

State v. Nelson, 173 N.J. 417, 460 (2002) (alterations in original) 

(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). 

Our review of the record shows that the prosecutor conducted 

an intense and relentless cross-examination of Dr. Hua, and 
17 A-3030-15T1

challenged Dr. Hua's consideration of the evidence related to 

defendant's injuries, his ability to make the observations upon 

which his opinion was based, the thoroughness of his review of the 

relevant medical records and the comprehensiveness of his report. 

Although the prosecutor asked what might be properly characterized 

as boorish and snide comments about Dr. Hua's vision based on his 

testimony that he needed glasses to drive an automobile, the 

questions directly challenged Dr. Hua's credibility. Dr. Hua

testified his opinion was based in part on his visual examination 

of defendant's wound sites, and thus his ability to accurately 

observe the sites was an appropriate subject of cross-examination. 

Similarly, the prosecutor questioned the credibility and 

comprehensiveness of Dr. Hua's report by pointing out, in a clearly 

sarcastic manner, that the doctor may not have reviewed all of the 

pertinent medical records and that his curriculum vitae was longer 

than his report concerning defendant's injuries.

Prosecutors "may 'strike hard blows . . . [but not] foul 

ones.'" State v. Echols, 199 N.J. 344, 359 (2009) (alteration in 

original) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007)). 

Although the tone of some of the cross-examination questions posed 

by the prosecutor was harsh and shrouded with sarcasm, we are not 

convinced the questions were "clearly and unmistakably improper." 

Nelson, 173 N.J. at 460. To the contrary, they directly pertained 
18 A-3030-15T1

to legitimate subjects for cross-examination – Dr. Hua's 

credibility and the thoroughness of his analysis and medical 

report. Moreover, defense counsel did not perceive the questions 

to be prejudicial — he did not interpose an objection at the time,

see Timmendequas, 161 N.J. at 576, and defendant makes no showing 

that the questions, even if improper, substantially prejudiced his 

right to have a jury fairly evaluate the merits of his defense,

see Nelson, 173 N.J. at 460.

Defendant also argues that the prosecutor committed 

prosecutorial misconduct by making improper attacks upon Dr. Hua 

during his summation. "Prosecutors are afforded considerable

leeway in closing arguments as long as their comments are 

reasonably related to the scope of the evidence presented." State 

v. Cordero, 438 N.J. Super. 472, 489-90 (App. Div. 2014) (quoting 

Frost, 158 N.J. at 82). "[I]n the prosecutor's effort to see that 

justice is done, the prosecutor 'should not make inaccurate legal 

or factual assertions during a trial.'" State v. Bradshaw, 195 

N.J. 493, 510 (2008) (quoting Frost, 158 N.J. at 85). "Rather, a 

prosecutor should 'confine [his or her] comments to evidence 

revealed during the trial and reasonable inferences to be drawn 

from that evidence.'" Ibid. (alteration in original) (quoting 

Smith, 167 N.J. at 178).
19 A-3030-15T1

"Summation commentary, however, must be based in truth, and 

counsel may not 'misstate the evidence nor distort the factual 

picture.'" Adelson, 187 N.J. at 431 (citation omitted). 

Prosecutors are afforded significant freedom as long as the 

commentary is reasonably related to the evidence before the jury. 

State v. Harris, 141 N.J. 525, 559 (1995). In fact, in a criminal 

case, a prosecutor is entitled and expected to make his closing 

arguments vigorously and forcefully. Frost, 158 N.J. at 82;

Harris, 141 N.J. at 559. 

Here, during his summation the prosecutor commented twice on 

Dr. Hua's examination of defendant's gunshot wound as 

insufficient, sarcastically stating that Dr. Hua underwent "an 

extra five, six year[s] of education so that he can look at an 

external wound on an eye test[,]" and observing that Dr. Hua 

conducted a visual examination of defendant's wounds but the 

jurors' "eyes are just as good as his. By the way your eyes are 

better than his. He doesn't – he can't even drive on the road,

but that's what he's relying on." The prosecutor twice remarked 

on the length of Dr. Hua's report stating: "I was not going to let 

him skate through with a report less than 500 pages[,]" and that 

Dr. Hua "submit[ted] a report of one and a half pages, half the 

length of his CV." 
20 A-3030-15T1

While we may not admire the tone of the prosecutor's 

summation, we find nothing improper in these comments. Each is 

founded on the evidence presented and supports a permissible 

argument concerning Dr. Hua's credibility.

The prosecutor, however, crossed the line in certain other 

statements concerning Dr. Hua during summation. He offered an 

opinion that Dr. Hua "made a mockery of [the jury's] time,"

"completely disrespected the entire [judicial] system," and did 

not "seem to have a moral conscience." A prosecutor cannot 

properly express a personal belief regarding a witness's 

truthfulness, State v. Staples, 263 N.J. Super. 602, 605 (App. 

Div. 1993), but that is precisely what the prosecutor did here,

see State v. Marshall, 123 N.J. 1, 156 (1991) (finding it proper 

for a prosecutor to argue that a witness's testimony is credible,

but improper to offer an opinion on the witness's credibility);

see also State v. Moore, 122 N.J. 420, 461-62 (1991) (holding it

was improper for the prosecutor to refer to defense expert as 

"professional bleeding heart who was indeed duped by the 

defendant"); Marquez, 277 N.J. Super. at 172 (finding it improper 

for the prosecutor to comment, without any basis, that the 

defendant's attorney had scripted the expert witnesses'

testimony).
21 A-3030-15T1

We are not, however, convinced the prosecutor's improper 

comments deprived defendant of his right to have the jury fairly 

evaluate the evidence and his defense. Nelson, 173 N.J. at 460. 

Again, there was no objection to the prosecutor's statements and 

we therefore deem the statements not to be prejudicial. R.B., 183 

N.J. at 333. The court also properly instructed the jury that it 

was the sole judge of witness credibility, and that counsel's

arguments or comments are not evidence. Accordingly, "[w]e assume 

the jury followed the court's instructions." See State v. Little,

296 N.J. Super. 573, 580 (App. Div. 1997). Moreover, when the 

prosecutor's brief comments are considered in the context of the 

evidence presented and the prosecutor's otherwise proper 

summation, they were not so egregious as to have deprived defendant 

of a fair trial. Smith, 167 N.J. at 181. 

Defendant also points to other comments made by the prosecutor 

during his summation, and claims they were not based on the 

evidence presented at trial, improperly bolstered witnesses'

credibility, demeaned the defense and misstated the applicable 

law. We have carefully considered these contentions and they are 

without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). We add only that there was no objection 

to any of the challenged statements, our review of the prosecutor's 

summation reveals that the challenged statements did not 
22 A-3030-15T1

constitute improper argument, and even if the statements were

improper, they did not substantially prejudice defendant's right 

to have a jury fairly evaluate the merits of his defense. See

Nelson, 173 N.J. at 460.

IV.

Defendant also makes two arguments related to his sentencing. 

He contends the court erred by failing to provide reasons for the 

imposition of consecutive sentences. He further asserts the court 

erred by failing to award jail credits for time he spent in custody 

following his arrest and prior to his sentencing. The State agrees 

with defendant's contentions and to a remand for resentencing to 

correct the court's errors.

Imposition of consecutive sentences requires the sentencing 

court's consideration of various factors detailed by the Court in 

State v. Yarbough, 100 N.J. 627, 643-44 (1985). It is wellestablished that a court imposing a consecutive sentence must 

expressly state the reasons for the sentence or risk remand for 

resentencing. State v. Marinez, 370 N.J. Super. 49, 59-60 (App. 

Div. 2004); see also State v. Miller, 108 N.J. 112, 122 (1987) 

(remanding because the court did not separately state the reasons 

for imposing consecutive sentences). 

Here, the court's imposition of consecutive sentences is 

untethered to any analysis of the Yarbough factors or any findings 
23 A-3030-15T1

supporting the court's decision. We are therefore constrained to 

vacate the court's imposition of the consecutive sentences and 

remand for the court to reconsider whether consecutive sentences 

are appropriate, and to make the required findings under Yarbough. 

Marinez, 370 N.J. Super. at 59-60.

We also remand for reconsideration of the award of jail 

credits. Defendant was not awarded any jail credits by the court,

but the State agrees the court erred by failing to award jail 

credits for the period defendant was in custody following his 

arrest and prior to his sentencing date. See generally State v. 

Hernandez, 208 N.J. 24 (2011). We do not have a sufficient record 

before us to determine defendant's entitlement to jail credits,

and remand for the sentencing court to make that determination. 

Defendant's convictions are affirmed. We vacate the court's 

imposition of consecutive sentences and remand for further 

proceedings in accordance with this opinion. We do not retain 

jurisdiction.