SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2807- 20 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. BARRY M. CRUDUP, a/k/a WHITE BOY, and LIVE, Defendant-Appellant.

_______________________

Submitted September 19, 2023

– Decided December 8 , 2023 Before Judges Sumners and Smith. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13

- 06 -0 118. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Timothy Denny, Assistant Deputy Public Defender, of counsel and on the briefs ). Matthew J. Platkin, Attorney General, attorney for respondent (Steven K. Cuttonaro, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2807

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A jury found defendant Barry M. Crudup guilty of we apons offenses

–– ranging from second- to fourth-degrees

–– aris ing from a New Jersey State Police sting operation targeting illegal gun sales. The S tate's case was supported by a sole eyewitness, Tyree Mims

–– a gun dealer turned paid confidential informant (CI)

–– who after sales to defendant was placed in witness prot ection due t o unrelated shooting s. Defendant was sentenced to an aggregate ten-yea r prison term inclusive of two consecutive prison terms, sub ject to a six-year period of parole ineligibility. Defendant appeals, arguing:
POINT I THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT WHEN SHE MADE INCULPATORY STATEMENTS UNSUPPORTED BY THE RECORD IN HER SUMMATION IMPLYING THAT THE DEFENDANT WAS RESPONSIBLE FOR SHOOTING AT THE STATE'S CRITICAL WITNESS, AND BY BOLSTERING THE WITNESS [] 'S CREDIBILITY. (Not Raised Below).
A. THE PROSECUTOR MADE INCULPATORY STATEMENTS THAT WERE UNSUPPORTED BY THE RECORD.
B. THE PROSECUTOR IMPROPERLY BOLSTERED THE MAIN WITNESSES' CREDIBILITY.3 A- 2807

- 20 C. THESE IMPROPER ARGUMENTS, BOTH INDIVIDUALLY AND TOGETHER, DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND NECESSITATE REVERSAL OF HIS CONVICTIONS. POINT II THE TRIAL COURT ERRED WHEN IT SENTENCED [DEFENDANT] TO CONSECUTIVE SENTENCES BECAUSE IT DID NOT CONSIDER THE OVERALL FAIRNESS OF THE SENTENCE. Our decision yields mixed results. We affirm defen dant's conviction as

no unjust result occurred due to the prosecutor's su mmation comments about Mims' shooting s . The jury was instruct ed several times that defendant was neither charged nor involved with the shooting and that Mims' relocation as a CI was not attributable to defendant. We reverse a nd remand because

–– as the State concedes

–– the trial court must explain why it was fair to imp ose consecutive sentences in accordance with State v. T orres, 246 N.J. 246 (2021).
I. We limit our discussion of the record to the facts and statements relevant to this appeal.
A State Police investigation employed Mims to stem illegal gun sales in the Trenton area. As part of his CI arrangement , Mims w as paid $100 for every gun he successfully purchased for the State Police (earning $1,700 over a seven-4 A- 2807

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month period); received money for household necessi ties and phone bills; and was removed from the Sex Offender Internet Registry

. The primary target of the investigation was Gary Sp ears. Defendant, however, got entangled in the investigation by making two sales to Mims. Mims had arranged to buy guns from Michael Gyampo (Nep). The State Police had Mims wear a recording device during the transaction and gave hi m money for the purchase. Mims testified he purchase d a rifle from Nep and defendant, whom he called "White Boy," and gave it to the State Police

. Two months later, Mims set up another buy with defendant. Again, the State Police had Mims wear a recording device and g ave him money for the purchase. Mims testified he bought a handgun from defendant and gave it to the State Police. A subsequent purchase, not involving defendant, res ulted in the seller sho oting at Mims i n a robbery attempt

. After another unsuccessful buy led to Mims being shot at , he was placed in a witness relocation program. The only evidence of defendant selling guns was Mim s' testimony. The State Police did not produce any investigation notes; po licies at the time did not require documentation of text messages or phone con versations. Additionally,5 A- 2807

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the State Police did not test the guns for DNA or fingerprints and did not tak e pictures or video surveillance of the buys. The jury found defendant guilty of all offenses cha rged. After merger, defendant was sentenced to an aggregate ten-year pr ison term, subject to a sixyear period of parole ineligibility, based on conse cutive terms of : (1) five years for second-degree conspiracy to unlawfully possess a weapon, N.J.S.A. 2C:5-2 and N.J.S.A. 2C: 58 -5 ; second-degree unlawful possession of an assaul t firearm, N.J.S.A. 2C:39-5(f); third-degree unlawful possessi on of a weapon, N.J.S.A. 2C:39-5(c)(2); and third-degree unlawful dispositio n of an assault firearm, N.J.S.A. 2C:39-9(g); and (2) five years for second -degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and fourth-degre e unlawful disposition of weapons, N.J.S.A. 2C:39-9(d)

. In addition, defendant was sentenced to a concurrent term of eighteen month s for fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(d), and fourth-degree disp osition of a prohibited weapon, N.J.S.A. 2C:39-9(e).
II

. De fendant asserts his rights to due process and a fai r trial under U.S. Const. amends. VI, XIV and N.J. Const. art. I, ¶¶ 1 , 10 were violated , warranting reversal of his conviction due to prosecutorial mis conduct

–– summation6 A- 2807

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comments : (1) implying

–– without factual support

–– defendant was involved in the Mims' shooting ; and (2) improperly buttressing Mims' credibility. We disagree. A. Shooting Testimony During summation, the prosecutor emphasized Mims' t estimony identifying defendant as a gun dealer and explained the lack of any forensic or documentary evidence of defendant's possession of guns or sa le to Mims of
guns . The prosecutor argued:

You can't sit there and take a video. That would b e great, but it's not reality. It can’t happen in these cases. It would compromise the investigation and a s you 're very well aware, Mr. Mims risked getting shot. He was shot at twice. He was shot at twice in th is case. Defense counsel did not object. The prosecutor's remarks were not "'clearly and unmistakably improper,' and [did not] substantially prejudice [] defendant's fundamental right to have a jury fairly evaluate the merits of his defense." S tate v. Smith, 167 N.J. 158, 181- 82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). And given the absence of an objection, defendant ha d to establish the remarks constituted plain error, State v. Feal, 194 N.J. 29 3, 312 (2008), meaning they were not "clearly capable of producing an unjust re sult, " R. 2:10

- 2.7 A- 2807

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The trial judge instructed the jury on five differe nt occasions that defendant was neither charged nor associated with t he shootings, and that Mims' relocation could not

— and should not

— be attributed to defendant. See Timmendequas, 161 N.J. at 575 (concluding there was no reversible error when jurors did not rely "on their suspicions of [the] d efendant's prior convictions in reaching their decisions"). The substance of the instructions was firm, clear, and effective. See State v. Vallejo, 198 N.J

. 122 , 134 (2009). We assume the jury followed the instructions, State v. Loftin, 146 N.J. 295, 367 ( 1996) (citation omitted), and defendant has not provided any indica tion to the contrary. The prosecutor did not argue facts not in evidence. See State v. Farrell , 61 N.J. 99, 102-03 (1972) (warning that summation c omments cannot serve as "the equivalent of testimony by the prosecutor"). In his merits brief, defendant admits the shootings were brought up by his cross-e xamination of Mims to show his continuing financial interest in cooperating with S tate Police. So, in presenting the shootings to the jury, defendant has no basis to argue the prosecutor could not refer to them during summation

. See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001). The prosecutor's comments did not "transform[] the case against [defendant] from one about selling guns to one abou t attempting to kill Mims, "8 A- 2807

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as defendant argues. Defendant correctly maintains there was no evidence he was aware Mims was a CI and retaliated by shooting Mims . The record , however, shows the trial was focused on Mims' alleg ations that defendant sold him guns on two separate occasions. The prosecutor's summatio n regarding the shootings were fair comment

on how dangerous the gun buys were, and therefore they could not be videotaped, leaving Mims as the State's sole witnes s to the transactions. The buys were audio recorded, which confirmed Mims' tes timony that defendant sold him the guns

. The summation accordingly relied on facts in evidence. B. Mims' Credibility Defendant argues the prosecutor's comments about Mi ms' shooting s improperly bolster ed Mims' credibility to the jury and warrants reversa l of his conviction. Because none of the comments were obje cted to , we re view them under the lens of plain error. Feal, 194 N.J. at 3 12. The prosecutor reinforced Mims' testimony that defenda nt was the person who sold him guns, saying this accusation was consi stent before and after the shootings . Defendant asserts the prosecutor invited the jur y to speculate about what would have happened to Mims if it had been kno wn he was a CI buying
guns . The prosecutor stated: "People didn't even know he was buying guns for9 A- 2807

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the State Police[,] and he still got shot at. Can you imagine what would have happened if he told them?" Defendant, citing State v. W.L., 278 N.J. Super. 295, 301 (App. Div. 1995), argues the prosecutor's unsupported comments had the "capacity to unfairly bolster the State's case and lead the jury to convict," especially since Mims was the only eyewitness to th e buys

. The prosecutor also argued Mims told the truth abou t buying guns from defendant a second time because "Gary Spears didn’t show up . . . He could have bought the gun from anyone. . . . There's absolute ly no reason for [Mims] to say it's [defendant]. He said it was [defendant] becau se [defendant], White Boy, showed up." The prosecutor further contended Mims' compensation was not contingent on who sold him a gun and there was "no reason for him to say that it was defendant." According to defendant, the Sta te's argument that Mims "had 'no reason' to lie about who sold the guns complete ly overlooks" the financial incentives provided to Mims. Defendant further cites the prosecutor's improper b olstering by the comment on Mims' testimony that it was defendant sp eaking on the recor dings of the buys

. The prosecutor asserted: "These recordings are no t going to lie to you. And you don’t have to take Mr. Mims ' word as to who was on those recordings. You can take the word of the recording s."10 A- 2807

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As a general principle, it is improper for a prosec utor to convey their personal opinion to a jury. State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993) (citations omitted) , aff'd, 136 N.J. 299 (1994). Thus, a prosecutor's personal opinion in summation bolstering the credib ility of a witness may constitute error. See Farrell, 61 N.J. at 105; see also State v. Rivera, 437 N.J. Super. 434, 449 (App. Div. 2014) ("Our Supreme Cour t has consistently condemned conduct that invades the exclusive provin ce of the jury to resolve factual disputes, assess credibility and decide whe ther the State’s evidence establishes guilt."). But a prosecutor "[is] affor ded considerable leeway" in summation " if

their comments are reasonably related to the scope of the evidence before the jury. " State v. Harris, 141 N.J. 525, 559 (1995). In doi ng

so , a prosecutor "[is] expected to make vigorous and fo rceful . . . argument to the jury." Id. Here, the prosecutor 's unobjected- to remarks do not warrant reversal of defendant's conviction. The prosecutor's bolster ing of Mims' credibility was in direct response to defendant's attempt to impeach M ims' testimony by questioning the financial incentives he received as a CI and calling Mims manipulative. As pronounced in State v. Frost , 158 N.J. 76, 82 (1999) , th is was appropriate and expected; the State rebutted defend ant's impeachment attempt11 A- 2807

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to persuade the jury that Mims' testimony was credible . Faced with opposing views of Mims' credibility, the jury sided with the State's version. The prosecutor's bol stering remarks were not clearly capable of produci ng an unjust result. So , there is no reason to upset the jury's verdict.
III. In the event his conviction is not vacated, defenda nt contends a remand for a full resentencing is required because, in imp osing two five-year consecutive sentence s, the trial judge failed to comply with State v. Yar bough , 100 N.J. 627 (1985), and Torres. We disagree regar ding Yarbough but agree as
to a limited remand to comply with Torres

. Defendant argues the judge 's oral decision " ma [ king ] a fleeting reference
to [Yarbo ugh ]" was inadequate. The judge stated:

The first transaction was a part of a conspiracy wi th Gyampo, while the second sale was conducted solely by defendant. Further, the transactions involve tw o different guns, one a loaded assault rifle, the oth er a defaced handgun, and it was sold over two months apart. The transactions constitute separate instan ces of criminal conduct, rather than [a] single period of abhorrent behavior and the convictions for which th e sentences are to be included, are numerous. While not comprehensive, we conclude the judge's re ason ing for imposing consecutive sentences was adequate. See State v. M iller, 205 N.J. 109, 12912 A- 2807

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(2011) (holding a remand is required when the trial judge fails state its reasons for imposing consecutive sentences). After defendant was sentenc ed , our Supreme Court decided Torres , holding: "An explicit statement, explaining the overall fai rness of a sentence imposed on a defendant for multiple offenses in a s ingle proceeding . . . is essential to a proper Yarbough sentencing assessmen t." 246 N.J. at 268. We might assume that by imposing the minimum five-year consecutive sentence on second-degree offenses (defendant incorrectly asser ts the maxim um sentence was imposed) , the judge was implicitly considering the overall fa irness of the sentence imposed. The judge, however, did not expl icitly state the overall fairness of a sentence per Torres. Hence, as the State concedes, we vacate defendant's consecutive sentences and remand for th e judge to comply with
Torres

. As for the scope of the remand, defendant argues it should be a full resentencing, wherein the judge would "view [ him ] as he stands before the court on that day." State v. Randolph, 210 N.J. 330, 354 (2012). Torres does not, as defendant contends, require a full resentencing. The judge's sole error was not explaining the overall fairness of imposing consecu tive sentences. See Torres , 246 N.J. at 271. We have no issue with the judge's consideration of the13 A- 2807

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sentencing factors or explanation for imposing cons ecutive sentences. See id. at 272. On remand, the judge should only determine whether the overall fairness of the consecutive sentences. See Randolph, 210 N. J. at 354 (concluding the trial court should not conduct a full resentencing on remand where it is ordered to correct "a plainly technical error" or where an appellate court issues " a directive to the judge to view the particular sente ncing issue from the vantage point of the original sentencing"). We take no position as to whether the court should impose consecutive sentences. To the extent that we have not addressed defendant' s remaining arguments, we conclude that they lack sufficient me rit to warrant discussion in a written opinion. R. 2:11 -3(e)(2 ). Affirmed as to defendant's convictions and reversed and remanded for resentencing. We do not retain jurisdiction.