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. 13-06-0118.

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2807-20

A jury found defendant Barry M. Crudup guilty of weapons offenses––

ranging from second- to fourth-degrees––arising from a New Jersey State Police 

sting operation targeting illegal gun sales. The State'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 protection due to 

unrelated shootings. Defendant was sentenced to an aggregate ten-year prison 

term inclusive of two consecutive prison terms, subject 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 defendant's conviction as 

no unjust result occurred due to the prosecutor's summation comments about 

Mims' shootings. The jury was instructed 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 and remand because––as the 

State concedes––the trial court must explain why it was fair to impose 

consecutive sentences in accordance with State v. Torres, 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 was paid $100 for every 

gun he successfully purchased for the State Police (earning $1,700 over a seven-
4 A-2807-20

month period); received money for household necessities and phone bills; and 

was removed from the Sex Offender Internet Registry. 

The primary target of the investigation was Gary Spears. 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 him 

money for the purchase. Mims testified he purchased 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 gave 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, resulted in the seller 

shooting at Mims in 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 Mims' testimony. The 

State Police did not produce any investigation notes; policies at the time did not 

require documentation of text messages or phone conversations. Additionally, 
5 A-2807-20

the State Police did not test the guns for DNA or fingerprints and did not take 

pictures or video surveillance of the buys. 

The jury found defendant guilty of all offenses charged. After merger, 

defendant was sentenced to an aggregate ten-year prison term, subject to a sixyear period of parole ineligibility, based on consecutive 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 assault firearm, 

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

2C:39-5(c)(2); and third-degree unlawful disposition 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-degree unlawful disposition of 

weapons, N.J.S.A. 2C:39-9(d). In addition, defendant was sentenced to a 

concurrent term of eighteen months for fourth-degree possession of a prohibited 

weapon, N.J.S.A. 2C:39-3(d), and fourth-degree disposition of a prohibited 

weapon, N.J.S.A. 2C:39-9(e). 

II. 

Defendant asserts his rights to due process and a fair 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 misconduct––summation 
6 A-2807-20

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' testimony 

identifying defendant as a gun dealer and explained the lack of any forensic or 

documentary evidence of defendant's possession of guns or sale to Mims of 

guns. The prosecutor argued: 

You can't sit there and take a video. That would be 

great, but it's not reality. It can’t happen in these 

cases. It would compromise the investigation and as 

you're very well aware, Mr. Mims risked getting 

shot. He was shot at twice. He was shot at twice in this 

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." State 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 had to establish the remarks 

constituted plain error, State v. Feal, 194 N.J. 293, 312 (2008), meaning they 

were not "clearly capable of producing an unjust result," R. 2:10-2.
7 A-2807-20

The trial judge instructed the jury on five different occasions that 

defendant was neither charged nor associated with the 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] defendant'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 indication 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 comments cannot serve as 

"the equivalent of testimony by the prosecutor"). In his merits brief, defendant 

admits the shootings were brought up by his cross-examination of Mims to show 

his continuing financial interest in cooperating with State 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 about attempting to kill Mims," 
8 A-2807-20

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' allegations that defendant sold 

him guns on two separate occasions. 

The prosecutor's summation 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 witness to the transactions. The 

buys were audio recorded, which confirmed Mims' testimony that defendant sold 

him the guns. The summation accordingly relied on facts in evidence. 

B. Mims' Credibility 

Defendant argues the prosecutor's comments about Mims' shootings 

improperly bolstered Mims' credibility to the jury and warrants reversal of his 

conviction. Because none of the comments were objected to, we review them 

under the lens of plain error. Feal, 194 N.J. at 312. 

The prosecutor reinforced Mims' testimony that defendant was the person 

who sold him guns, saying this accusation was consistent before and after the 

shootings. Defendant asserts the prosecutor invited the jury to speculate about 

what would have happened to Mims if it had been known he was a CI buying 

guns. The prosecutor stated: "People didn't even know he was buying guns for 
9 A-2807-20

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 the buys. 

The prosecutor also argued Mims told the truth about buying guns from 

defendant a second time because "Gary Spears didn’t show up . . . He could have 

bought the gun from anyone. . . . There's absolutely no reason for [Mims] to say 

it's [defendant]. He said it was [defendant] because [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 State's argument that Mims "had 

'no reason' to lie about who sold the guns completely overlooks" the financial 

incentives provided to Mims. 

Defendant further cites the prosecutor's improper bolstering by the 

comment on Mims' testimony that it was defendant speaking on the recordings 

of the buys. The prosecutor asserted: "These recordings are not 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 recordings." 
10 A-2807-20

As a general principle, it is improper for a prosecutor 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 credibility 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 Court has consistently 

condemned conduct that invades the exclusive province of the jury to resolve 

factual disputes, assess credibility and decide whether the State’s evidence 

establishes guilt."). But a prosecutor "[is] afforded 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 doing 

so, a prosecutor "[is] expected to make vigorous and forceful . . . argument to 

the jury." Id. 

Here, the prosecutor's unobjected-to remarks do not warrant reversal of 

defendant's conviction. The prosecutor's bolstering of Mims' credibility was in 

direct response to defendant's attempt to impeach Mims' 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), this was 

appropriate and expected; the State rebutted defendant's impeachment attempt 
11 A-2807-20

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 bolstering remarks were not clearly capable of producing an unjust 

result. So, there is no reason to upset the jury's verdict. 

III. 

In the event his conviction is not vacated, defendant contends a remand 

for a full resentencing is required because, in imposing two five-year 

consecutive sentences, the trial judge failed to comply with State v. Yarbough, 

100 N.J. 627 (1985), and Torres. We disagree regarding 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 [Yarbough]" was inadequate. The judge stated: 

The first transaction was a part of a conspiracy with 

Gyampo, while the second sale was conducted solely 

by defendant. Further, the transactions involve two 

different guns, one a loaded assault rifle, the other a 

defaced handgun, and it was sold over two months 

apart. The transactions constitute separate instances of 

criminal conduct, rather than [a] single period of 

abhorrent behavior and the convictions for which the 

sentences are to be included, are numerous. 

While not comprehensive, we conclude the judge's reasoning for imposing 

consecutive sentences was adequate. See State v. Miller, 205 N.J. 109, 129 
12 A-2807-20

(2011) (holding a remand is required when the trial judge fails state its reasons 

for imposing consecutive sentences). 

 After defendant was sentenced, our Supreme Court decided Torres, 

holding: "An explicit statement, explaining the overall fairness of a sentence 

imposed on a defendant for multiple offenses in a single proceeding . . . is 

essential to a proper Yarbough sentencing assessment." 246 N.J. at 268. We 

might assume that by imposing the minimum five-year consecutive sentence on 

second-degree offenses (defendant incorrectly asserts the maximum sentence 

was imposed), the judge was implicitly considering the overall fairness of the 

sentence imposed. The judge, however, did not explicitly state the overall 

fairness of a sentence per Torres. Hence, as the State concedes, we vacate 

defendant's consecutive sentences and remand for the 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 consecutive sentences. See Torres, 

246 N.J. at 271. We have no issue with the judge's consideration of the 
13 A-2807-20

sentencing factors or explanation for imposing consecutive 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 sentencing 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 merit 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.