SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0536-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS ALMONTE,

Defendant-Appellant.

_______________________

Submitted February 1, 2021 – Decided July 27, 2021

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 16-07-

0112.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David J. Reich, Designated Counsel, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Daniel Finkelstein, Deputy Attorney 

General, 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-0536-18

Following a jury trial, defendant and co-defendant Jorge Oviedo-Difo, 

who was tried in absentia, were convicted of second-degree possession of a 

handgun without a permit, N.J.S.A. 2C:39-5(b) (count one); and two counts of 

fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-

3(f)(1) and 2C:39-3(j) (counts two and three, respectively). Defendant was 

sentenced to an aggregate term of five years' imprisonment with a forty-twomonth period of parole ineligibility. 

The convictions stemmed from a multi-state sting operation conducted by 

the Drug Enforcement Administration (DEA) to identify members of a 

Philadelphia crew that perpetrated home invasions to rob drug dealers. The 

physical items forming the evidential bases for the charges were recovered 

during a consent search of the co-defendant's vehicle conducted at a rest stop on 

the New Jersey Turnpike when the co-defendant and defendant were en route to 

a fabricated home invasion in New York that had been arranged by a confidential 

informant (CI) working for the DEA. 

Defendant now appeals from his convictions raising the following points 

for our consideration:

POINT I[1]

1

 We condensed Point I for clarity. 
3 A-0536-18

THE TRIAL COURT ABDICATED ITS LEGAL 

OBLIGATION TO ACT AS A GATEKEEPER WITH 

RESPECT TO THE INTRODUCTION OF EVIDENCE 

OF OTHER BAD ACTS.

A. The Trial Court Failed To Find Clear 

And Convincing Evidence Other Bad Acts 

Were Committed.

B. The Trial Court Failed To Submit 

Required Jury Instructions Concerning The 

Other Bad Acts Evidence.

C. The Trial Court Failed To Sanitize 

The Other Bad Acts Evidence.

D. The Court Allowed The Jury To Hear 

Substantial Amounts Of Other Patently 

Inadmissible Testimony.

POINT II

THE TRIAL COURT COMMITTED PREJUDICIAL 

ERROR IN DENYING [DEFENDANT'S] MOTION 

TO SEVER AND THEN PERMITTING HIS ABSENT 

CO-DEFENDANT'S POST-ARREST STATEMENT 

TO BE USED TO INCULPATE HIM.

POINT III

A NEW TRIAL IS WARRANTED IN VIEW OF THE 

PREJUDICE CAUSED BY THE PROSECUTOR'S 

MISCONDUCT.

POINT IV
4 A-0536-18

A NEW TRIAL IS WARRANTED IN VIEW OF THE 

CUMULATIVE ERRORS IN THIS CASE (NOT 

RAISED BELOW).

After considering the arguments presented in light of the record and applicable 

law, we affirm.

I.

Following significant motion practice, trial commenced on June 14, 2018. 

We glean these facts from the record of the four-day trial, during which the State 

produced three witnesses, DEA Agent Steven Chapman, the CI, and New Jersey 

State Police Detective Joseph Czech. Agent Chapman testified that during a

sting operation conducted in late 2015 to early 2016, the DEA obtained a phone 

number and a code word to contact a suspected crew operating out of

Philadelphia that robbed drug dealers. Because the identity of the crew members 

was unknown, the DEA gave the phone number to a paid CI to identify the 

members and infiltrate the crew. 

On December 29, 2015, at the behest of the DEA, the CI contacted an 

individual identified as co-defendant Oviedo-Difo at the phone number acquired 

during the investigation. Once the CI confirmed that co-defendant Oviedo-Difo 

was interested in participating in a robbery, the CI arranged a meeting in New 

York to discuss a fabricated robbery of a stash house in the Bronx. The phone 
5 A-0536-18

conversation between the CI and co-defendant Oviedo-Difo to arrange the 

meeting was recorded. According to Chapman, the DEA planned to arrest the 

crew members when they arrived to rob the stash house. 

The CI testified that co-defendant Oviedo-Difo and an individual later 

identified as defendant attended the prearranged meeting in Manhattan. During 

the meeting, the CI informed defendants he had a contact inside an apartment 

containing money and drugs, and that the contact would give them access to the 

apartment for the robbery. The CI told defendants he would call them the day 

before the planned robbery and asked them how they would commit the robbery. 

According to the CI, co-defendant Oviedo-Difo responded that they would bring 

"tape and a ski mask." When the CI specifically asked if they were "coming 

with guns," both defendants responded "[o]f course" as they anticipated that the 

apartment occupant would be armed. The CI suggested that defendants "wear a 

hat and a hoodie" to conceal their identities. 

The New York meeting took place in an SUV parked at a prearranged 

location, lasted approximately twenty minutes, and was secretly recorded by the 

CI, who was seated in the back seat next to defendant and had an unobstructed 

view of defendant. Co-defendant Oviedo-Difo sat in the driver's seat and an 

unidentified male sat in the front passenger seat. The audio recording of the 
6 A-0536-18

meeting was played for the jury during the trial and a transcript was provided as 

an aid. 

A few weeks after the meeting, the CI called co-defendant Oviedo-Difo 

and told him that everything was set for the following day. On the day of the 

planned robbery, January 20, 2016, co-defendant Oviedo-Difo told the CI in a 

phone conversation that they were "getting ready to leave." Throughout the day, 

Oviedo-Difo and the CI continued to communicate via telephone and the 

conversations were recorded. 

Defendants traveled from Philadelphia in co-defendant Oviedo-Difo's

vehicle to meet the CI for the robbery in New York. However, while en route,

the car began to overheat, and, at about 4:00 p.m., Oviedo-Difo told the CI that 

he had to pull off at a rest stop on the New Jersey Turnpike. At the request of 

the DEA, members of the New Jersey State Police responded to the Grover 

Cleveland Rest Area and arrested defendants when they observed them approach 

the disabled vehicle described to the officers by the DEA. Although the vehicle 

was not surveilled when it left Philadelphia, the DEA was aware of its location 

through the telephonic communications between the CI and co-defendant 

Oviedo-Difo. 
7 A-0536-18

After obtaining consent from co-defendant Oviedo-Difo, the registered 

owner of the vehicle, Detective Czech testified that he and other unit members

searched the vehicle, beginning at 6:35 p.m. The search uncovered a semiautomatic Smith and Wesson handgun2 loaded with a large capacity magazine 

and hollow-point bullets hidden inside a sock secreted behind the radio in the 

"dashboard center console compartment" of the vehicle. Neither defendant had 

a permit for the gun. Suspected robbery tools consisting of two black ski masks, 

black gloves, duct tape, zip ties, and a black hooded sweatshirt were found on

the backseat. In the rear portion of the vehicle, officers recovered a bag of 

suspected burglary tools consisting of screwdrivers, pliers, socket wrenches, and 

the like. 

After being administered his Miranda3 warnings, co-defendant OviedoDifo gave a statement to police. Detective Czech testified that, in the statement, 

Oviedo-Difo explained that he was giving defendant a ride from Philadelphia to 

New York to meet someone in the music industry when "[his] truck broke 

2

 Subsequent testing confirmed that the gun was operable.

3

 Miranda v. Arizona, 384 U.S. 436 (1966).
8 A-0536-18

down." Oviedo-Difo admitted that other than the hooded sweatshirt,

4 the gloves,

and the ski masks,5 the items found in the back seat and the rear of the vehicle 

belonged to him. When questioned by police, he provided innocuous and 

inconsistent explanations for the presence of the items in the vehicle. OviedoDifo also stated he installed an after-market radio in the compartment where the 

gun was found but denied any knowledge or ownership of the gun.

Defendant testified on his own behalf. He emphatically denied being 

present at the New York meeting, denied that it was his voice on the audio

recording of the meeting, and denied any knowledge of a planned robbery. He 

stated that co-defendant Oviedo-Difo was "an acquaintance" he met "[a]t the 

barbershop" in Philadelphia. Defendant explained that the only reason he was 

in Oviedo-Difo's vehicle when they were arrested was because he needed a ride 

to New York for a business meeting with a client in the music industry and 

defendant's car was unreliable. Defendant stated he had "an entertainment 

company" that "manage[d] artists and musical events." Defendant claimed he 

did not know there was a gun in the car and did not notice the items in the rear

4

 Oviedo-Difo was wearing a black hooded sweatshirt when he was arrested.

5

 Oviedo-Difo described the ski masks as hats that were needed for the frigid 

New York temperature.
9 A-0536-18

of the car when he placed his "jacket"6 there. Defendant expressly denied 

ownership of the ski masks. After he was convicted and sentenced, this appeal 

followed.

II.

A.

In Point I, defendant argues that "[i]n view of the absence of an express 

finding of clear and convincing evidence that [defendant's] voice was on the 

recording or that he ever met or spoke with the informant," as required under 

Rule 404(b),7 it was reversible error for the trial judge "to submit the audio 

recording and the transcript of that recording to the jury" when defendant 

"vehement[ly] dispute[d]" the account. Defendant asserts further that the judge 

erred in failing "to instruct the jury concerning the limited purposes for which 

the other bad acts at issue could be considered" and erred in failing "to sanitize 

6

 The jacket referred to the hooded sweatshirt recovered from the back seat of 

the vehicle.

7

 Under State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a fourprong test to screen for admissibility of other crime evidence under Rule 404(b), 

requiring that the evidence be "relevant to a material issue;" "similar in kind and 

reasonably close in time to the offense charged;" "clear and convincing;" and 

have "probative value" that is "not . . . outweighed by its apparent prejudice." 

(citations omitted). 
10 A-0536-18

the other bad acts evidence" to redact discussions about the details of the 

planned robbery to "minimize its harmful impact." Defendant also contends he 

was deprived of "a fair trial" by repeated "testimony linking [him] to the alleged 

planned robbery" elicited from the CI and Agent Chapman, which evidence "had 

no probative significance concerning the weapons possession charge[,] . . . was 

patently inadmissible under other well established evidence rules," and 

"embellished and distorted the facts." The State counters that "[e]vidence of the 

robbery was intrinsic" to the charged crimes and therefore admissible. We 

agree.8

"[E]vidence that is intrinsic to the charged crime is exempt from the 

strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct 

that would normally fall under Rule 404(b) because it is not evidence of other

8

 Defendant asserts that because the judge admitted the evidence in question 

under Rule 404(b) on the State's application, the State is now precluded from 

arguing an alternate theory on appeal. However, the general rule promulgated 

in Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), that "appellate 

courts will decline to consider questions or issues not properly presented to the 

trial court when an opportunity for such a presentation is available" does not 

apply "where an issue was raised in the trial court even if argument before the 

trial court was based on a different theory from that advanced in the appellate 

court." Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 

(2020). Moreover, because an appeal is taken from the court's ruling rather than 

reasons for the ruling, we may rely on grounds other than those upon which the 

trial court relied. See State v. Williams, 444 N.J. Super. 603, 617 (App. Div. 

2016).
11 A-0536-18

crimes, wrongs, or acts." State v. Rose, 206 N.J. 141, 177 (2011) (citation and 

quotation marks omitted). 

Thus, evidence that is intrinsic to a charged crime need 

only satisfy the evidence rules relating to relevancy, 

most importantly the Rule 403 balancing test. Thus, 

characterization of evidence as "intrinsic" significantly 

affects the calculus because the principle animating 

Rule 403 is that relevant evidence is admissible unless 

its probative value is substantially outweighed by a 

negative feature of the evidence, whereas Rule 404(b) 

operates from the premise that evidence of other bad 

acts is inadmissible unless proffered for a proper 

purpose. It is therefore more likely that evidence of 

uncharged misconduct will be admitted into evidence if 

it is considered intrinsic to the charged crime and 

subject only to Rule 403 than if it is not considered 

intrinsic evidence and subject to both Rule 404(b) and 

Rule 403.

 

[Id. at 177-78.]

Accord State v. Santamaria, 236 N.J. 390, 410 (2019) ("[I]f evidence is found 

to be intrinsic to the crime at issue, it does not constitute other-acts evidence 

and is subject only to the limits of Rule 403.").

To determine if evidence is "intrinsic," our Supreme Court adopted the 

test articulated in United States v. Green, 617 F.3d 233 (3d Cir. 2010), which 

limits intrinsic evidence to "two narrow categories of evidence." Rose, 206 N.J. 

at 180. 
12 A-0536-18

First, evidence is intrinsic if it "directly proves" the 

charged offense. This gives effect to Rule 404(b)'s 

applicability only to evidence of "other crimes, wrongs, 

or acts." If uncharged misconduct directly proves the 

charged offense, it is not evidence of some "other" 

crime. Second, "uncharged acts performed 

contemporaneously with the charged crime may be 

termed intrinsic if they facilitate the commission of the 

charged crime." 

[Id. at 180 (quoting Green, 617 F.3d at 248-49).]

"[T]he Court predicted that its holding would have little impact upon evidentiary 

rulings" and would not exclude "evidence that is currently admissible as 

background or 'completes the story' evidence under the inextricably intertwined 

test" encompassed in the doctrine of intrinsic evidence. State v. Brockington, 

439 N.J. Super. 311, 327 (App. Div. 2015) (quoting Rose, 206 N.J. at 180).

Here, proof of the planned robbery was intrinsic to proving certain 

statutory elements of the possessory crimes charged. To prove defendant 

possessed the loaded handgun found secreted in co-defendant Oviedo-Difo's

vehicle, the State had to prove defendant knew the gun was in the car. See State 

v. Brown, 80 N.J. 587, 600 (1979) (explaining that proof of "knowledge and 

control" are "essential elements of constructive possession"). Thus, proof of the 

planned robbery provided essential background that was admissible as intrinsic 

evidence under the inextricably intertwined test. "Such evidence, even though 
13 A-0536-18

inconclusive as to all the elements of the charged offenses, is admissible because 

it has probative value as to one or more of the statutory elements the State must 

establish beyond a reasonable doubt." Brockington, 439 N.J. Super. at 328.

Accordingly, the evidence was subject only to a Rule 403 analysis, and 

not a Rule 404(b) analysis as defendant contends. See State v. Skinner, 218 N.J. 

496, 517 n.5 (2014) (observing that "details that . . . dovetail with the facts of 

the case" constitute direct proof of the charged offense, which "should be 

analyzed for relevance under [Rule] 401 and evaluated under [Rule] 403's 

standard for prejudice, and not the standard for prejudice under a Cofield

analysis" (citing Rose, 206 N.J. at 177-78)). Because the evidence here is 

clearly relevant to material facts at issue in the determination of defendant's guilt 

of the charged offenses, "the question is whether the evidence should be 

excluded because 'its probative value is substantially outweighed by the risk of 

. . . undue prejudice.'" Brockington, 439 N.J. Super. at 333 (quoting Rule 403).

"The mere possibility that evidence could be prejudicial does not justify 

its exclusion." State v. Long, 173 N.J. 138, 164 (2002) (quoting State v. Morton, 

155 N.J. 383, 453-54 (1998)). "Even when evidence is 'highly damaging' to a 

defendant's case, 'this cannot by itself be a reason to exclude otherwise 

admissible and probative evidence.'" Brockington, 439 N.J. Super. at 333 
14 A-0536-18

(quoting State v. Frost, 242 N.J. Super. 601, 620-21 (App. Div. 1990)). 

"Evidence claimed to be unduly prejudicial is excluded only when its 'probative 

value is so significantly outweighed by [its] inherently inflammatory potential 

as to have a probable capacity to divert the minds of the jurors from a reasonable 

and fair evaluation' of the issues in the case." Long, 173 N.J. at 163-64 (quoting 

State v. Koskovich, 168 N.J. 448, 486 (2001)).

Here, neither the CI's testimony detailing the New York planning meeting 

nor the CI's identification of defendant as a participant at the meeting was so 

inherently inflammatory as to have a probable capacity to divert the minds of 

the jurors from a reasonable and fair evaluation of the issues in the case. Instead, 

the testimony was essential to the jury's fair evaluation of the issues in dispute. 

The jury was free to accept the testimony as proof of defendant's knowledge of 

the planned robbery and attendant possession of the gun needed to commit the 

crime or reject it as inadequate particularly in light of defendant's denials. We 

therefore conclude that the probative value of the evidence was not outweighed, 

let alone, significantly outweighed, by undue prejudice and sanitization was not 

required. We also reject defendant's argument and reach the same conclusion 

with respect to the testimony of Agent Chapman concerning the DEA's plan to 

arrest defendants when they arrived to commit the robbery, which plan was 
15 A-0536-18

thwarted by co-defendant Oviedo-Difo's vehicle breaking down before they 

arrived. 

As a participant in the New York planning meeting, with personal 

knowledge of what transpired, the CI provided the necessary foundation for the 

admission of the audio recording and transcript. See N.J.R.E. 602 (permitting a

witness to testify to a matter about which "the witness has personal knowledge");

see also N.J.R.E. 901 ("To satisfy the requirement of authenticating or 

identifying an item of evidence, the proponent must present evidence sufficient 

to support a finding that the item is what its proponent claims."). "The proponent 

of the evidence is only required to make a prima facie showing of authenticity." 

State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999). "Once a prima facie 

showing is made, . . . the ultimate question of authenticity of the evidence is left 

to the jury." Ibid.

Moreover, as a participant in the conversation, the CI was permitted to 

opine on the meaning of the discussions. See N.J.R.E. 701 (permitting "the 

witness' testimony in the form of opinions or inferences" when it "is rationally 

based on the witness' perception" and "will assist in understanding the witness' 

testimony"). Further, hearsay statements the CI attributed to defendants were 

admissible as statements offered against a party. See N.J.R.E. 803(b)(5) 
16 A-0536-18

(exempting from exclusion as hearsay a statement "offered against a partyopponent" that was "made at the time the party-opponent and the declarant were 

participating in a plan to commit a crime . . . and the statement was made in 

furtherance of that plan"); see also Mays, 321 N.J. Super. at 629 ("Since the 

telephone call was properly authenticated, the content of the conversation, albeit 

hearsay, was admissible as a statement offered against a party, the defendant." 

(citing N.J.R.E. 803(b))). Because we are satisfied that the evidence was 

admissible as intrinsic evidence and complied with all evidentiary requirements,

it was "exempt from the strictures of Rule 404(b)" and did not require a limiting 

instruction. Rose, 206 N.J. at 177.

B.

In Point II, defendant argues the judge erred in denying his pre-trial 

motion to sever his trial from co-defendant Oviedo-Difo, who "had absconded 

from the country" and "was not expected to return." Defendant continues that 

"[e]ven if one were to overlook this error, there was no justification for the court 

allowing the use of Oviedo-Difo's post-arrest statement to inculpate 

[defendant]."

Two or more defendants may be charged and tried 

jointly "if they are alleged to have participated in the 

same act or transaction" constituting the offense. 

Indeed, under those circumstances, a joint trial is 
17 A-0536-18

"preferable" because it serves judicial economy, avoids 

inconsistent verdicts, and allows for a "more accurate 

assessment of relative culpability." 

[State v. Weaver, 219 N.J. 131, 148 (2014) (quoting 

State v. Brown, 118 N.J. 595, 605 (1990)); see R. 3:7-

1 (indictment); R. 3:15-1 (trial).]

However, "[i]f, for any reason, it appears that a defendant . . . is prejudiced 

by the joint trial, the trial court may sever." Id. at 148-49 (citing R. 3:15-2(b)). 

"The decision to sever is within the trial court's discretion, and it will be reversed 

only if it constitutes an abuse of discretion." Id. at 149. "[I]n deciding whether 

to grant a severance the trial court must balance the possible prejudice to the 

defendant against the government's interest in judicial economy and must 

consider the ways in which it can lessen the prejudice by other means. . . ." State 

v. Morant, 241 N.J. Super. 121, 134 (App. Div. 1990) (quoting State v. Barrett, 

220 N.J. Super. 308, 311 (Law Div. 1987)). "[I]f by proper instructions and 

charges to the jury the separate status of codefendants can be maintained, the 

'danger by association' which inheres in all joint trials is effectively overcome." 

Ibid.

Here, defendant argues the joint trial unduly prejudiced his right to a fair 

trial because of co-defendant Oviedo-Difo's absence from the trial and the 

State's use of Oviedo-Difo's "statement to [defendant's] detriment." Without 
18 A-0536-18

question, severance is appropriate where a joint trial would deprive a defendant 

of his right to a fair trial. State v. Sanchez, 143 N.J. 273, 282 (1996). However, 

in State v. Melendez, 129 N.J. 48, 50 (1992), the Court held that the trial court 

did not abuse its discretion in denying the motion for severance where the codefendant "failed to return to court the day after the State had rested its case." 

Likewise, here, we discern no abuse of discretion in the judge's denial of 

severance based on co-defendant Oviedo-Difo's absence from the trial. 

The use of co-defendant Oviedo-Difo's statement against defendant during 

the trial is more problematic. "We recognize that the United States Supreme 

Court permits use of a co-defendant's statement that does not directly 

incriminate another defendant as long as all references to the defendant are 

removed." Weaver, 219 N.J. at 159 (citing Richardson v. Marsh, 481 U.S. 200, 

211 n.5 (1987)). Further, in State v. Broxton, 49 N.J. 373, 377 (1967), the Court 

found no error in trying defendants jointly where "nothing in any confession . . . 

on its face or because of some collateral circumstance identified any other 

defendant as one of the culprits." See also State v. Mayberry, 52 N.J. 413, 421 

(1968) (finding severance was not warranted where only basis for severance 

motion was that some evidence would be admissible only as to one codefendant).
19 A-0536-18

Here, it is undisputed that co-defendant Oviedo-Difo's statement made 

references to defendant. However, those references did not incriminate 

defendant but exculpated him. Indeed, during summations, defense counsel 

stated "frankly, Oviedo[-]Difo exculpates my client, exonerates him with respect 

to any guns." Notably, co-defendant Oviedo-Difo admitted that other than the 

jacket, ski masks, and gloves, the items found in the rear of the vehicle were his 

possessions. The fact that Oviedo-Difo gave conflicting accounts of why he had 

certain items in the car neither implicated nor incriminated defendant. 

Significantly, by confirming that he was giving defendant a ride to New York 

for a business meeting, Oviedo-Difo's statement was consistent with and 

corroborated defendant's testimony. For that reason, while it was error to use 

Oviedo-Difo's statement at the joint trial without eliminating all references to 

defendant, the error was harmless. See State v. Haskell, 100 N.J. 469, 479 

(1985) ("From time to time, cases may arise where the admission of a codefendant's statement in a joint trial constitutes harmless error."); State v. Carter, 

54 N.J. 436, 442-46 (1969) (finding that error, if any, was harmless in allowing 

testimony of oral non-inculpatory statement of defendants at their joint trial).
20 A-0536-18

C.

In Point III, defendant argues that "the various instances of prosecutorial 

misconduct which occurred in th[e] case" individually and cumulatively 

"deprived [him] of his constitutional right to a fair trial." Specifically, defendant 

asserts that comments made by the prosecutor in opening and closing statements 

as well as during cross-examination of defendant require reversal of his 

convictions. 

"[P]rosecutorial misconduct can be a ground for reversal where the 

prosecutor's misconduct was so egregious that it deprived the defendant of a fair 

trial." State v. Frost, 158 N.J. 76, 83 (1999). "In determining whether a 

prosecutor's misconduct was sufficiently egregious, an appellate court 'must take 

into account the tenor of the trial and the degree of responsiveness of both 

counsel and the court to improprieties when they occurred.'" Ibid. (quoting State 

v. Marshall, 123 N.J. 1, 153 (1991)). "Specifically, an appellate court must 

consider (1) whether defense counsel made timely and proper objections to the 

improper remarks; (2) whether the remarks were withdrawn promptly; and (3) 

whether the court ordered the remarks stricken from the record and instructed 

the jury to disregard them." Ibid.
21 A-0536-18

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

will not be deemed prejudicial." Ibid. "The failure to object suggests that

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

were made." Id. at 84. "The failure to object also deprives the court of an 

opportunity to take curative action." Ibid. Because defense counsel did not 

object to many instances now claimed on appeal to constitute prosecutorial 

misconduct, "defendant must demonstrate plain error to prevail." State v. 

Timmendequas, 161 N.J. 515, 576 (1999). "Plain error is 'error possessing a 

clear capacity to bring about an unjust result and which substantially prejudiced 

the defendant's fundamental right to have the jury fairly evaluate the merits of 

his defense.'" Id. at 576-77 (quoting State v. Irving, 114 N.J. 427, 444 (1989)).

First, defendant argues the prosecutor "provided the jury with inaccurate 

facts about [defendant] . . . during . . . opening statement" by telling "the jury 

they would hear from Agent Chapman that [defendant] was a known burglary

ring suspect in a pending criminal investigation." During opening statement, 

the prosecutor said, "Agent Chapman will tell you that he was investigating a 

burglary ring of which [co-defendant Oviedo-Difo] and [defendant] were 

suspected of being members." At trial, Agent Chapman testified that when they 

began the investigation, they did not know the identity of the crew members. 
22 A-0536-18

However, as a result of the investigation, the identities of the crew members 

were ascertained. Because defendant did not object, we review the remark under 

the plain error standard of review. See R. 2:10-2 ("[T]the appellate court may, 

in the interests of justice, notice plain error not brought to the attention of the 

trial . . . court.").

"A prosecutor's opening statement 'should provide an outline or roadmap 

of the State's case' . . . ." State v. Land, 435 N.J. Super. 249, 269 (App. Div. 

2014) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004)). 

"A prosecutor in [his or] her opening statement may state only those facts that 

[he or] she intends to prove in good faith. [He or s]he also may argue all 

inferences that properly may be drawn from those facts." Timmendequas, 161 

N.J. at 577. "As all damaging evidence is inherently prejudicial, the court 

affords the prosecutor considerable leeway in making [his or] her opening."

Ibid. "However, the court must patrol the boundaries of propriety to ensure that 

defendant's right to a fair trial is not compromised." Ibid.

Applying these principles, we conclude that the statement was a fair 

comment on the evidence actually produced at trial. Moreover, because the 

judge clearly advised the jury that "opening statement[s were] not evidence," 

and "[w]e presume that the jury followed the court's specific admonitions 
23 A-0536-18

regarding the role of opening statements," id. at 578, we find no plain error and 

no evidence that the prosecutor's statement substantially prejudiced defendant's 

right to a fair trial. 

Next, defendant argues that in summations, the prosecutor "improperly 

vouch[ed] for his own witness" by telling the jury that the CI was "a reliable 

witness." Defendant further asserts the prosecutor made improper "[r]eferences 

to the absence" of "a motive [to lie]" by asking the jury "[w]hat reason would 

[the CI] have to lie" and by telling the jury that "if [the CI] told a lie he could 

be prosecuted" and "would have jeopardized the stream of payment he received 

as a paid informant." Additionally, defendant asserts the prosecutor 

"overstepped his bounds in maligning [defendant]" by telling the jury that 

defendant was "lying . . . because he doesn't want you to convict him." Once 

again, defendant failed to object to any of these comments.

"Prosecutors are afforded considerable leeway in closing arguments as 

long as their comments are reasonably related to the scope of the evidence 

presented." Frost, 158 N.J. at 82. "In other words, as long as the prosecutor 

'stays within the evidence and the legitimate inferences therefrom,' [t]here is no 

error." State v. McNeil-Thomas, 238 N.J. 256, 275 (2019) (alteration in 

original) (first quoting State v. R.B., 183 N.J. 308, 330 (2005); and then quoting 
24 A-0536-18

State v. Carter, 91 N.J. 86, 125 (1982)). However, certain comments that deviate 

from these well-established principles are not permissible.

In that regard, while prosecutors are typically barred from arguing that a 

witness had no motive to lie, see R.B., 183 N.J. at 331-32, it is well-settled that 

the State "may argue that a witness is credible, so long as the prosecutor does 

not personally vouch for the witness or refer to matters outside the record as 

support for the witness's credibility." Walden, 370 N.J. Super. at 560. Further, 

"[w]hile a prosecutor has the right to call to the jury's attention discrepancies in 

a defendant's testimony and then argue that the defendant was not truthful, a 

prosecutor cannot express a personal opinion regarding the credibility of a 

defendant's testimony. . . ." State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 

1997). Additionally, "[i]t is well settled that when a defendant takes the witness 

stand in a criminal case, he puts his character in issue and it is proper for the 

State . . . to call attention to his interest in the result." State v. Sinclair, 57 N.J. 

56, 65 (1970). 

Our task is "to consider the 'fair import' of the State's summation in its 

entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. 

Wakefield, 190 N.J. 397, 457 (2007)). When reviewing a prosecutor's 

summation, we consider "the context in which the challenged portions were 
25 A-0536-18

made, including determining whether the remarks were a measured response to 

defendant's summation made in an attempt to 'right the scale.'" State v. Murray, 

338 N.J. Super. 80, 88 (App. Div. 2001) (quoting State v. Engel, 249 N.J. Super. 

336, 379 (App. Div. 1991)).

Here, we are satisfied there was no misconduct "so egregious that it 

deprived the defendant of a fair trial." Jackson, 211 N.J. at 409 (quoting Frost, 

158 N.J. at 83). During the trial, defense counsel attempted to undermine the 

credibility of the CI by extensively cross-examining both Agent Chapman and 

the CI about the CI's criminal record, the fact that the CI avoided imprisonment 

by working for the DEA as an informant, the large payments the CI received 

while working for the DEA, the monetary incentive for the CI to dupe targets to 

enhance his payments, and the role and responsibilities of an informant. During 

summations, defense counsel continued this line of defense by assiduously 

attacking the credibility of the CI, pointing out to the jury that he was "a felon" 

who was "paid very generously" by the DEA and who "lie[d] so much that [he 

didn't] know the truth from a lie anymore." Counsel stated that although "[the 

prosecutor] may think his witnesses were truthful," in fact, the CI whose "word 

[was] the [government's] key evidence" was not "truthful." 
26 A-0536-18

We view the challenged comments regarding the CI's credibility and 

reliability as "a measured response to defendant's summation." Murray, 338 N.J. 

Super. at 88 (citation omitted). Indeed, the prosecutor responded during 

summation that the CI had a monetary incentive not to lie. "A prosecutor is not 

forced to idly sit as a defense attorney attacks the credibility of the State's 

witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 

(App. Div. 2000). See State v. Johnson, 287 N.J. Super. 247, 266 (App. Div. 

1996) ("A prosecutor may respond to an issue or argument raised by defense 

counsel.").

Regarding the prosecutor's comment that defendant was lying because he 

did not want to be convicted, immediately preceding those remarks, the 

prosecutor stated:

So, when you're evaluating the testimony of the 

witnesses who testified in this case, think about who's 

got a reason to lie to you. [The CI] has every reason in 

the world to tell you the truth because if he lies once 

this great source of income dries up for him. 

[Defendant], on the other hand, doesn't want to be 

convicted of the crimes with which he's charged. He 

doesn't want to acknowledge that he was with [codefendant Oviedo-Difo]. He doesn't want to 

acknowledge that they planned this crime together. He 

doesn't want to acknowledge that he knew this gun was 

there. If he admits that[,] you're going to convict him. 

He has every motive in the world to lie and his 
27 A-0536-18

testimony just in one short morning was wildly 

inconsistent from one question to the next.

Because the prosecutor did not express a personal opinion regarding 

defendant's credibility but relied on evidence presented during the trial and the 

legitimate inferences therefrom, the comments were permissible "within the 

context of the trial as a whole." McNeil-Thomas, 238 N.J. at 276 (quoting State 

v. Feaster, 156 N.J. 1, 64 (1998)). Moreover, "[t]he failure to object suggests 

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

they were made," Frost, 158 N.J. at 84, and the judge clearly advised the jury 

that "summations" were "not evidence and should not be treated as evidence."

Next, defendant argues that "[t]he prosecutor's cross-examination 

regarding [defendant's] prior employment and non-payment of income taxes was 

likewise improper." According to defendant, "[t]he overall message the 

prosecutor sought to convey in pursuing this line of attack was to highlight 

[defendant's] lack of business income" to "suggest that [defendant's] financial 

status gave him an incentive to rob." Defendant asserts the "impropriety" was 
28 A-0536-18

"compounded" by the "prosecutor's unsolicited remark," "That's a nice watch," 

to "insinuate[e defendant] was a criminal because of the watch he wore."9

"[I]t is generally improper to use a defendant's poverty to establish a 

criminal motive." State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978). 

Undoubtedly a lack of money is logically connected 

with a crime involving financial gain. The trouble is 

that it would prove too much against too many. As said 

in 2 Wigmore, Evidence (3d ed. 1940), § 392, p. 341: 

"The lack of money by A might be relevant 

enough to show the probability of A's 

desiring to commit a crime in order to 

obtain money. But the practical result of 

such a doctrine would be to put a poor 

person under so much unfair suspicion and 

at such a relative disadvantage that for 

reasons of fairness this argument has 

seldom been countenanced as evidence of 

the graver crimes, particularly of 

violence."

[State v. Mathis, 47 N.J. 455, 471-72 (1966).]

Here, during direct examination, defendant testified the only reason he 

was in co-defendant Oviedo-Difo's vehicle was because Oviedo-Difo was giving 

9

 The State acknowledges that the "watch" comment "was not ideal." However, 

the judge sustained defense counsel's objection, explaining "[s]omeone could 

have a nice watch because it's a gift." We agree that the comment was 

objectionable, but it was fleeting and isolated. "[A] 'fleeting and isolated' 

remark is not grounds for reversal." State v. Gorthy, 226 N.J. 516, 540 (2016) 

(quoting State v. Watson, 224 N.J. Super. 354, 362 (App. Div. 1988)).
29 A-0536-18

him a ride to New York for a business meeting "with a new artist." Defendant 

testified that he had a production company with "a music studio" and an "office" 

located in Philadelphia and that he made trips to New York "[o]nce or twice a 

week." According to defendant, his clients were "new artists that have dreams." 

He stated that operating the company was his full-time job and he had been in 

the music business for "[a]round [twelve] to [fifteen] years." 

On cross-examination, the prosecutor inquired whether defendant filed a 

tax return for his company to which defendant responded that he did not because 

"the company [was] not generating any income." When the prosecutor asked 

whether defendant was "breaking the law" by not filing a tax return for the 

company, defense counsel objected. The judge sustained the objection and 

instructed the jury to "disregard th[e] comment." In response to the prosecutor's 

additional questions about the company, defendant testified that he started the 

company in 2016 but the company had not made any money to date. He stated 

that prior to starting the company, he worked for a trucking company "for about 

eight or ten years" but did not recall whether he ever filed a tax return in 

connection with that job.

We are convinced that the prosecutor's questions about defendant's 

employment history and non-payment of taxes were not intended to elicit 
30 A-0536-18

evidence of impecuniosity on the part of defendant to prove motive or 

willingness to commit a crime but to impugn defendant's credibility by 

undermining his claim that he was traveling to New York for a business meeting

rather than to commit the planned robbery. Defendant squarely put his 

employment at issue during his direct examination. The cross-examination was 

pertinent to challenge defendant's credibility as well as his substantive testimony 

about his claimed business. See Feaster, 184 N.J. at 248 (explaining "[o]ne of 

the essential purposes of cross-examination is to test the reliability of testimony 

given on direct-examination").

Contrary to defendant's suggestion, the cross-examination was not an 

impermissible collateral attack on defendant's credibility founded on an 

extraneous issue. See, e.g., State v. Scott, 229 N.J. 469, 495 (2017) (Albin, J., 

concurring) (explaining "a defendant, on trial for aggravated assault, cannot be 

asked whether he misstated his income on his tax returns" as a means of 

challenging credibility). In any event, the questioning "was not an influential 

factor leading to conviction in this case." State v. Copeland, 94 N.J. Super. 196, 

202 (App. Div. 1967). To hold otherwise, "we would have to assume that the 

jury concluded that defendant[] committed the crime for lack of money, even 

though at no point in the trial did anyone suggest either expressly or by 
31 A-0536-18

necessary implication that such a view was tenable." Id. at 203. We therefore 

find no prejudicial error. See R. 2:10-2.

Equally unavailing is defendant's challenge to the prosecutor's crossexamination regarding defendant undergoing throat surgery one week after 

defense counsel received the audio recording of the New York meeting with the 

CI. Defendant ardently testified on direct examination that he did not attend the 

New York meeting and that it was not his voice on the audio recording. In 

response to the prosecutor's questions on cross-examination, defendant admitted 

having "an operation for a cyst . . . in [his] throat" but did not "remember when 

[he] had th[e] operation" or "when th[e] recording was given to [his] attorney." 

Defendant argues the questioning "violated the rules of permissible conduct" 

because "there was no evidence in the record regarding either of the two dates 

referred to by the prosecutor" and no "evidence that the operation changed 

[defendant's] voice" as "insinuated" by the prosecutor during summations. 

Although a prosecutor is precluded from asking "questions about topics 

for which []he had no basis in truth," "[c]ross-examination relating to a witness's 

credibility need not be based on evidence adduced at trial." State v. Martini, 

131 N.J. 176, 255 (1993). See State v. Rose, 112 N.J. 454, 500 (1988) 

(explaining that a question in cross-examination is improper where "no facts 
32 A-0536-18

concerning the event on which the question was based were in evidence and the 

prosecutor made no proffer indicating his ability to prove the occurrence"). 

Here, there was no objection to the line of questioning, leading us to conclude 

that the prosecutor had adequate grounds to question defendant about the throat 

surgery and its timing, and defense counsel did not deem the questioning 

prejudicial. In any event, in the absence of an objection, we are satisfied that 

whatever error may have occurred in permitting this line of cross-examination, 

it was not clearly capable of producing an unjust result. See R. 2:10-2.

D.

Finally, in Point IV, defendant argues the cumulative errors "deprived 

[him] of his fundamental right to a fair trial." "We have recognized in the past 

that even when an individual error or series of errors does not rise to reversible 

error, when considered in combination, their cumulative effect can cast 

sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 

440, 473 (2008). However, here, because we conclude there were no reversible 

errors either alone or combined, defendant's cumulative error argument must 

also fail.

Affirmed.