SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5140-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY OLIVER, 

Defendant-Appellant.

____________________________

Submitted October 28, 2019 – Decided

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-04-0352.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Laura B. Lasota, Assistant Deputy Public 

Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, 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NOT FOR PUBLICATION WITHOUT THE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.

February 18, 2020
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After trial with codefendants, Francis Brace and Jahmad Green, defendant 

Gregory Oliver appeals from his conviction by jury and sentence for first-degree 

aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-4(a)(1), as a 

lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), 

N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of seconddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) 

(counts six and twelve); second-degree aggravated assault of Alaysia Chambers, 

N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted 

murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-3(d) (count 

eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b) (count seven). Both victims were shot in an early-morning incident on 

August 31, 2014. The State alleged defendant and his codefendants shot at a 

gold Ford Taurus from which shots were also fired. Burroughs was shot in the 

head and pronounced dead on the sidewalk where he fell. Chambers, who was 

seated in Brace's BMW in which he had earlier picked her up, was also shot in 

the head; she survived her wound. Neither of the victims were the intended 

targets of the shootings.

 On appeal, defendant argues:

POINT I
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THE TRIAL [JUDGE] ERRED IN ADMITTING INTO 

EVIDENCE THE PRIOR RECORDED 

STATEMENTS OF A TESTIFYING WITNESS AS 

SUBSTANTIVE EVIDENCE PURSUANT TO 

N.J.R.E. 803(A)(1) AND N.J.R.E. 803 (C)(5).

POINT II

THE [TRIAL JUDGE] VIOLATED DEFENDANT'S 

RIGHTS TO DUE PROCESS AND A FAIR TRIAL 

BY ADMITTING "EXPERT" BALLISTICS 

TESTIMONY THAT IS CONTRARY TO THE 

CURRENT STATE OF THE SCIENCE AND 

FEDERAL LAW AND IS THEREFORE 

UNRELIABLE AND INADMISSIBLE UNDER 

N.J.R.E. 702.

A. SUBJECTIVE BALLISTICS 

TOOLMARK EVIDENCE IS 

INADMISSIBLE UNDER N.J.R.E. 702 

AS IT IS UNRELIABLE. 

B. ALTERNATIVELY, THIS COURT 

SHOULD REMAND THE MATTER FOR 

A RULE 104 HEARING AS TO THE 

SCIENTIFIC RELIABILITY OF THIS 

EVIDENCE, IF ANY.

POINT III

DEFENDANT WAS DENIED THE RIGHT TO DUE 

PROCESS AND A FAIR TRIAL WHEN THE STATE 

PUBLISHED TO THE JURY A GRUESOME 

PHOTOGRAPH OF THE HOMICIDE VICTIM, 

PARTICULARLY AS THAT EXHIBIT WAS LATER 

RULED INADMISSIBLE UNDER N.J.R.E. 403.

POINT IV
4

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THE SENTENCING COURT APPLIED 

INAPPROPRIATE AGGRAVATING FACTORS 

AND MISAPPLIED STATE V. YARBOUGH,

1

RESULTING IN AN AGGREGATE TWENTYSEVEN[-]YEAR TERM, SUBJECT TO AN EIGHTYFIVE PERCENT PAROLE DISQUALIFIER, THAT IS 

MANIFESTLY EXCESSIVE.

For the reasons we now discuss, we affirm.

I.

The statements that defendant claims were wrongly admitted as 

substantive evidence were taken by Paterson police detectives who twice 

interviewed Jocelyn Suggs. Video recordings of both interviews—the first, four 

days after the shooting and the second on December 3, 2014—were admitted 

into evidence and played for the jury. In the statements, Suggs explained to the 

detectives that a large crowd of people had congregated in the area around a 

parked BMW in which Chambers sat prior to the shooting. Suggs was warned 

there was going to be a shooting. She placed Brace at the scene, at the side of 

the BMW. Someone retrieved a gun from the BMW's interior. The first shots 

were fired from the gold Taurus as it drove by the group gathered near the BMW. 

She observed Brace return fire. Suggs told detectives an individual named 

1

 100 N.J. 627 (1985).
5

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Jahmad was at the scene, and she heard him state that he had a gun. Suggs also 

told detectives that a week or two after the shooting, she heard defendant state 

that he "shot him in the eyeball."

Further to the State's request to introduce the statements, the trial judge 

conducted a hearing to determine whether the statements were admissible under 

N.J.R.E. 803(a)(1). State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), 

aff'd, 121 N.J. 1 (1990); accord State v. Brown, 138 N.J. 481, 539 (1994). 

N.J.R.E. 803(a)(1) provides a hearsay exception for prior inconsistent 

statements of a witness that would have been admissible if made by the declarant 

while testifying. A statement is deemed inconsistent if the witness feigns a lack 

of recollection or recants his or her testimony. State v. Savage, 172 N.J. 374, 

404-05 (2002). If the statement is offered by the party calling the witness, it is 

admissible as substantive evidence if it is "contained in a sound recording or in 

a writing made or signed by the declarant-witness in circumstances establishing 

its reliability[.]" N.J.R.E. 803(a)(1). The party offering the statement has the

burden of proving the reliability of the prior statement by a preponderance of 

the evidence. Gross, 121 N.J. at 7, 15-17. The trial judge's role "is not to 

determine the credibility of the out-of-court statement. Rather it is for the judge 

to determine from the proofs whether the prior statement was made or signed 
6

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under circumstances establishing sufficient reliability that the factfinder may 

fairly consider it as substantive evidence." Gross, 216 N.J. Super. at 110.

Defendant advances several reasons the judge erred in finding the 

statements reliable: Suggs was in custody when she provided her statements to 

police because—during the first interview—she was told she was not free to 

leave until she told detectives what they wanted to hear, and because detectives 

arrived at her place of employment and told her they had a warrant for her arrest 

when they picked her up prior to the second interview; Suggs was pressured and 

coerced by police to give the statements; Suggs testified she was chronically

intoxicated, and high on MDMA and marijuana, when both interviews took 

place; and there was no evidence corroborating Suggs's account of defendant's 

involvement in the shooting, emphasizing Suggs was the sole witness who 

testified to his alleged comment about shooting the victim in the eye, and no 

witnesses observed defendant firing a weapon, nor did any forensic evidence tie 

him to any of the recovered weapons.

We review the evidentiary rulings of the trial court under the abuse of 

discretion standard. State v. Harris, 209 N.J. 431, 439 (2012); State v. Merritt, 

247 N.J. Super. 425, 434 (App. Div. 1991) (applying abuse of discretion 

standard to admission of prior inconsistent statements). We also defer to the 
7

A-5140-16T1

factual findings of the trial judge made after an evidentiary hearing, if those 

findings are supported by sufficient credible evidence in the record. State v. 

Robinson, 200 N.J. 1, 15 (2009). We further extend that deference to the trial

court's "factual findings based on a video recording" in order to ensure trial 

courts that "have ongoing experience and expertise in fulfilling the role of 

factfinder," remain "'the finder of the facts,' in the absence of clear error." State 

v. S.S., 229 N.J. 360, 380-81 (2017) (quoting Fed. R. Civ. P. 52(a) advisory

committee's note to 1985 amendment).

The judge heard testimony from Suggs and one of the detectives who 

conducted both interviews, and he viewed the video statements. Suggs testified: 

she could not remember anything about the events of August 31, 2014, besides 

there was a shooting; she felt pressured when she provided statements to the 

police; her prior statements were not accurate; and she wished to recant both 

statements. Suggs also testified she routinely drank and ingested "mollies" and 

"weed" at the time she provided the statements to police, and that she was high 

during both interviews. Finally, Suggs said she was not aware that either of her 

statements were being recorded.

The trial judge considered Suggs's contentions that she could not recall 

making the statements, the statements were not truthful, and she was under the 
8

A-5140-16T1

influence, but found her "lapse of memory" was feigned.2 Thus, the judge ruled 

the videotaped statements were inconsistent, Savage, 172 N.J. at 404-05, 

meeting the threshold requirements of N.J.R.E. 803(a)(1).

The trial judge, in determining whether the statements were given "in 

circumstances establishing its reliability," N.J.R.E. 803(a)(1)(A), reviewed each 

of the fifteen factors enumerated in Gross, 216 N.J. Super. at 109-10:

(1) the declarant's connection to and interest in the 

matter reported in the out-of-court statement, (2) the 

person or persons to whom the statement was given, (3) 

the place and occasion for giving the statement, (4) 

whether the declarant was then in custody or otherwise 

the target of investigation, (5) the physical and mental 

condition of the declarant at the time, (6) the presence 

or absence of other persons, (7) whether the declarant 

incriminated himself or sought to exculpate himself by 

his statement, (8) the extent to which the writing is in 

the declarant's hand, (9) the presence or absence, and 

the nature of, any interrogation, (10) whether the 

offered sound recording or writing contains the 

entirety, or only a portion or a summary, of the 

communication, (11) the presence or absence of any 

motive to fabricate, (12) the presence or absence of any 

express or implicit pressures, inducements or coercion 

for the making of the statement, (13) whether the 

anticipated use of the statement was apparent or made 

known to the declarant, (14) the inherent believability 

or lack of believability of the statement and (15) the 

presence or absence of corroborating evidence.

2

 Besides the judge's independent finding, defendant's counsel conceded "[i]t 

does appear [Suggs] was feigning."
9

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The judge found: as to factor one, Suggs was present at the scene of the 

shooting, "recognized and in court . . . identified the three defendants," and knew 

Chambers; as to factors two, three and six, the statements were given to two 

detectives in interview rooms "with regard to an investigation relating to the 

death of . . . Burroughs and the attempted murder of . . . Chambers[.]" The judge 

found those factors supported the statements' reliability.

The judge carefully considered whether Suggs was in custody or a target 

of the investigation, the fourth factor, noting the warrant for her arrest stemming 

from unpaid fines. The judge found Suggs was never handcuffed, Suggs "clearly 

indicated she didn't feel that she was a target or a suspect," and she was released 

after the statements. The judge observed Suggs's demeanor and responses to 

questioning during the interview and found, although she perceived she was in 

a "pressured environment," the totality of the circumstances "weighed in favor 

of . . . reliability" as to this factor.

The judge's observations of the video also informed his decision that, 

contrary to Suggs's testimony that she was under the influence during the 

statements, "[s]he appeared to be very attentive[,] . . . drew diagrams[,] [and 

m]ade appropriate corrections[.]" Her description of events and even her facial 

gestures also led the judge to determine that Suggs "had a good grasp of what[
10 A-5140-16T1

was] going on" during the interviews. He determined factor five favored the 

statements' reliability.

The judge did not find factor seven applicable because Suggs neither 

incriminated nor sought to exculpate herself. He also found, in connection with 

the eighth and tenth factors, although the statements were not written in her 

hand, Suggs was clearly depicted on the videos, and except for a ten or twelve 

minute gap "where it was very hard, difficult for the [judge] to figure out what 

was being said,"3the balance of the sound recording was admissible.

The judge devoted considerable attention to factor nine, ultimately finding 

the factor favored a finding of reliability. The judge found Suggs clearly did 

not want to be interviewed by the detectives. Reiterating that his review of the 

videos revealed

the nature of these interviews was tense, was pressured, 

but did not amount to a full[-]fledged, what I consider 

to be an interrogation that may have caused the will of 

this witness to be broken to a point where she was 

giving information or providing information to the 

detectives under stress or under such a duress that I 

would call it . . . an involuntary statement.

As to the related factor twelve, the judge repeated his prior finding that 

the circumstances were pressured. He also considered defendant's contention 

3

 The judge ruled that portion of the statement was inadmissible.
11 A-5140-16T1

that police offered Suggs $20 if she did not sleep well after telling detectives the 

truth. During an exchange with one of the detectives, after Suggs told the 

detective she had not been sleeping well, the detective told her: "And that's what 

I'm trying to tell you, if you tell us exactly what happened, I guarantee you 

tonight you['ll] sleep. If not, I'll give you [$]20. She'll probably lie to me, like[,

']I didn't sleep well.['] No, but I'm serious. You'll sleep well." That record 

evidences that the detective did not offer money in exchange for a statement but 

offered a bet—rhetorically, or in jest—that she would feel better if she aided 

their investigation by disclosing what she witnessed.

The judge also considered defendant's contention, mirroring his present 

argument, that the detectives told Suggs "she was not free to leave" and "[h]er

ability to leave was contingent on telling the police what they wanted to hear." 

In finding Suggs's statements were voluntary, the judge determined

even [if] the detective's statement may be characterized 

as that she was not permitted to go home unless she 

provided statements that they were looking for, that 

statement, if we follow the detective's statement, was 

you can go home and we can all go home.

If we take those statements together, it does not 

imply that you're not going home unless you do what 

I'm asking you to do.
12 A-5140-16T1

We see no reason to disturb the judge's evidence-based findings. The 

context of the conversation does not support defendant's contention she was 

coerced and pressured. It is evident from the record the detectives believed

Suggs was reluctant and withholding information, and they wanted to prolong 

the interview until she was forthcoming with a complete and truthful account of 

what she witnessed. When the detective told her she could not leave, he 

explained:

Jocelyn, we're close, but not that close. We've got to 

go to, to the bottom of it. You've got to tell us what 

went down, so we can finish this, so you can go home 

and we can go home. All we're doing is trying to catch 

somebody. . . . You saw what happened. You're 

basically telling us – most of the stuff you're telling 

them is stuff that you're hearing from the people that 

she told, saying this happened . . . that happened. You 

don't need that because you were there. You saw what 

happened.

. . . .

As I told you, in five minutes you could have told 

us, if you went straight to the point what happened, five 

minutes this conversation would be over. [I]f you

would have told us exactly how everything went down 

when you were there and when you saw what happened.

The detectives did not pressure Suggs to say anything particular, only to tell the 

truth. And the interview's length was "about three hours"; Suggs was not kept 

for an inordinate amount of time after that exchange.
13 A-5140-16T1

Although the judge's decision regarding factor eleven seems to have 

conflated Suggs's motive to fabricate during the interview with her motive 

during the evidentiary hearing, the judge did find "there is no presence of a 

motive to fabricate other than her express desire not to be involved, not to 

testify[.]" As confirmed by the judge's analysis of factor fifteen, that finding 

applied to Suggs's mindset during the interview and during the evidentiary 

hearing, supporting the judge's conclusion that Suggs had no motive to fabricate,

and the factor favored a finding of reliability.

The judge found Suggs did not know she was being videotaped and 

accorded "medium weight in considering the reliability" under factor thirteen. 

He also left "the inherent believability or lack of believability of the statements" 

under factor fourteen to the jury, but found the statements reliable under this 

factor in compliance with our holding in Gross that the trial judge's role "is not 

to determine the credibility of the out-of-court statement," but "to determine 

from the proofs whether the prior statement was made or signed under 

circumstances establishing sufficient reliability that the factfinder may fairly 

consider it as substantive evidence." 216 N.J. Super. at 110.

As to the fifteenth factor, the judge, in addition to finding Suggs's 

reluctance to testify was corroborated, determined he was not presented with 
14 A-5140-16T1

sufficient evidence "to rule either in favor or against the reliability" of the 

statements. The State argues Suggs's statements are corroborated by evidence 

that: defendant's ex-girlfriend, Shadayia McCrae, gave a statement to police 

indicating she saw defendant on Sixth Street prior to the shooting, in the "[e]arly 

morning hours" of August 31, 2014, at which time he was carrying "a big grayish 

colored gun"; police also lifted defendant's fingerprints from the trunk of the 

BMW; Burroughs's injury was a gunshot wound that penetrated his eye; and 

Jahmad Green's fingerprints were found on a magazine that was linked by 

ballistics evidence to the shootings. Inasmuch as the judge did not find these 

facts from the evidence, we will not consider them.

Although not directly addressed in the judge's analysis, we are not 

persuaded by defendant's arguments that Suggs's custody was evidenced by the 

arrest warrant about which the detectives told her when they picked her up in a 

police vehicle from her place of employment before the second interview, and 

that the detective's offer to have letters submitted to her employer, and other 

offers of assistance with employment, coerced her statement, rendering it 

unreliable. The second statement was only about fifty minutes in length and 

Suggs was not held after it concluded. And there is no evidence the offers of 

work-related assistance were an attempt to coerce Suggs's statement. Indeed, 
15 A-5140-16T1

she did not accept the offer. As the trial judge commented after viewing the 

videos, "although I do not condone everything that . . . occurred in that interview 

room, do they amount . . . to such an environment where all of the statements 

that this witness made would be deemed involuntary? I don't reach that 

conclusion."

"[A] trial court's evidentiary rulings are 'entitled to deference absent a 

showing of an abuse of discretion[.]'" Harris, 209 N.J. at 439 (alteration in 

original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Accordingly, the 

trial court's decision to admit evidence should only be overturned if it was "made 

without a rational explanation, inexplicably departed from established policies, 

or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 

561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization 

Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Our review of the record fails to 

provide us with any reason to disturb the trial judge's factual findings, analyses 

of the Gross factors, or conclusion that Suggs's statements were admissible as 

substantive evidence under N.J.R.E. 803(a)(1).

We do not agree with the trial judge that the statements were also 

admissible under N.J.R.E. 803(c)(5). As a threshold, the statement must concern 

"a matter about which the witness is unable to testify fully and accurately 
16 A-5140-16T1

because of insufficient present recollection[.]" N.J.R.E. 803(c)(5). The trial 

judge found Suggs feigned her inability to recall; hence the statement did not 

meet the threshold requirement.

II.

Defendant also argues a detective's expert testimony, presented in the 

State's case-in-chief, was inadmissible under N.J.R.E. 702 because ballistics 

evidence based on tool mark analysis is insufficiently reliable. Defendant bases 

this argument on three reports—two published by the National Research Council 

(NRC), and one by the President's Council of Advisors on Science and 

Technology (PCAST)—as well as several federal opinions. In the alternative, 

defendant suggests this court remand for a plenary hearing to determine whether 

the challenged tool mark evidence meets the Daubert4standard of reliability.

The State's expert testified about his analysis of guns, shell casings and 

projectiles recovered during the shooting investigation and as to tool mark 

analysis: the method he used to match the 9mm shell casings to the two 

handguns that were recovered, and to identify the thirteen .45 caliber shell 

casings as being fired from the same weapon, which was not recovered. 

Specifically, the expert, after analyzing both recovered firearms, as well as the 

4

 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
17 A-5140-16T1

shell casings and projectiles collected from the crime scenes, concluded all 

thirteen .45 caliber shell casings were fired from the same firearm, the two 

recovered projectiles could fit into a .45 caliber Glock firearm, six of the 9mm 

casings recovered were fired from the Glock recovered from the scene, and the 

remaining two casings found were fired from the recovered Springfield XD 

handgun.

All three defense counsel stipulated to the detective's qualifications. None 

of defendants' counsel objected to the testimony, nor did they challenge the 

expert's methods or findings through cross-examination. As such, the trial 

record is devoid of any argument, findings or analysis that are usually raised in 

a pretrial motion challenging an expert's methodology, hampering our review. 

See State v. Witt, 223 N.J. 409, 419 (2015) (noting parties must raise an issue 

before the trial court to allow an appellate court to review it); Toll Bros., Inc. v. 

Twp. of W. Windsor, 173 N.J. 502, 539 (2002) (noting courts should be 

"reluctant to review matters . . . in any case where a record had not been fully 

developed by the parties in the trial courts").

In State v.McGuire, 419 N.J. Super. 88, 129 (App. Div. 2011), when

considering the defendant's argument "made for the first time on appeal that tool 
18 A-5140-16T1

mark analysis as a discipline is not scientifically reliable," we determined that 

we did

not have a factual record to evaluate thoroughly 

defendant's new argument that expert tool mark 

analysis should not be admitted at all in our courts. The 

trial court is not expected "to investigate sua sponte the 

extent to which the scientific community holds in 

esteem the particular analytical writing or research that 

the proponent of testimony advances as foundational to 

an expert opinion." Hisenaj v. Kuehner, 194 N.J. 6, 16

(2008). If a party opposes expert testimony on the 

ground that the field has not obtained general 

acceptance, that party should raise that issue at trial.

Ibid.

We reach that same conclusion here.

[I]t is a well-settled principle that our 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 unless the questions so raised 

on appeal go to the jurisdiction of the trial court or 

concern matters of great public interest.

[Robinson, 200 N.J. at 20 (quoting Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973)).]

Because defendant did not object to the expert's testimony at trial, the 

State was deprived of an opportunity to counter the arguments defendant now 

advances in his merits brief by proffering testimonial and other evidence. We 

do not have a developed record of tested theories regarding tool mark 

identification. And we heed our Supreme Court's caution against reviewing 
19 A-5140-16T1

"material not part of the evidentiary record and argument that went beyond that 

which was advanced before the trial court" in order to determine if the trial court 

erred in admitting expert testimony. Hisenaj, 194 N.J. at 25.

Further, in McGuire, we upheld the admissibility of tool mark analysis 

evidence in the context of markings on plastic garbage bags. 419 N.J. Super. at 

127-33. We see no reason to change that stance or to deviate from the Court's 

clear holding that the Frye5standard—the same standard we considered in 

McGuire—is the prevailing standard to be applied in criminal cases. In re 

Accutane Litig., 234 N.J. 340, 399 (2018).

We thus reject defendant's entreaty to reverse defendant's conviction 

based on the admission of the expert's testimony, and his demand that the matter 

be remanded for a plenary hearing on the scientific reliability of that evidence.

III.

Defendant next contends he was denied a fair trial because a color crime 

scene photograph depicting Burroughs lying dead in a pool of blood was twice 

shown to the jury, and because the prosecutor later told the jury in summation

that Burroughs "died in a halo, a bloody halo of his own blood." The photo, 

5

 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
20 A-5140-16T1

which apparently was shown on a screen visible to the jury, was identified by 

two officers who each testified that it depicted Burroughs as they found him at 

the scene. None of the defense counsel objected when the photo was displayed 

to the jury during each officer's testimony. Only when the State moved the photo 

into evidence with numerous other exhibits, did all three defense counsel object. 

The trial judge ruled the photo inadmissible because the prejudice it engendered 

outweighed its probative value.

Defendant argues the display of the photo was unduly prejudicial and 

deprived defendant of a fair trial because it served no purpose other than to 

inflame the jury's passions. Defendant further contends this error was 

compounded by the prosecutor's apparent reference during summation to the 

bloody image depicted in the photograph. According to defendant, these errors 

were especially prejudicial because of the alleged dearth of evidence, other than

the testimony of Suggs, supporting his conviction.

Because no objection was made to the display of the photo, we will not 

reverse unless the error was "clearly capable of producing an unjust result," R.

2:10-2; that is, unless there is a "reasonable doubt as to whether the error led the 

jury to a result it otherwise might not have reached," State v. Macon, 57 N.J. 

325, 336 (1971). We do not perceive that to be the case.
21 A-5140-16T1

The record reveals the photo was briefly displayed during each officer's 

testimony before the prosecutor moved on to another exhibit. The first officer 

testified the photo depicted "the male that we found on the corner who was shot"; 

and confirmed that the condition of the man in the photo was as the officer found

him. When the second officer was shown the photo, he was asked, "Is this what 

Mr. Burroughs looked like when you arrived at the scene?" He simply 

responded affirmatively.

During an in-chambers colloquy among counsel and the judge prior to the 

redirect examination of the first officer, the judge commented, "[w]ith regard to 

the pictures that were published, . . . my . . . assumption that . . . if I didn't hear 

any objection, which means you're fine with them. And do me a favor. If there 

are pictures that are going to be published . . . just make sure you guys are all in 

agreement." The prosecutor responded that he spoke to defense counsel about 

the photographs in advance and "told them if you're going to have any objection 

to publish[ing] them[,] . . . let me know."

We also discern that in the judge's final jury charge, when discussing "the 

evidence that [the jury] may consider in judging the facts of this case," he told 

the jury that the term "evidence" included "any exhibits that have been admitted 

into evidence," and that "any exhibit that has not been admitted into evidence 
22 A-5140-16T1

cannot be given to you in the jury room even though it may have been marked 

for identification. Only those items admitted into evidence can be given to you." 

The jury is presumed to have followed that instruction. See State v. Loftin, 146 

N.J. 295, 390 (1996) ("That the jury will follow the instructions given is 

presumed.").

Under those circumstances, the brief display of the photo, albeit twice, 

was not clearly capable of causing an unjust result, leading the jury to an 

outcome it might not have otherwise reached.

Further, the prosecutor's remarks were untethered to the photograph. 

Although defendant ascribes the prosecutor's description to the photo, the 

prosecutor did not mention it. We also note the prosecutor's statement could 

have been fair comment on the first officer's testimony that, upon arrival at the 

crime scene, he "saw a male down on the sidewalk bleeding heavily." He 

described the victim's condition as "laying face up on the sidewalk bleeding 

from his head." "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. Frost, 158 N.J. 76, 82 (1999). "Generally, if no 

objection was made to the improper remarks, the remarks will not be deemed

prejudicial." Id. at 83.
23 A-5140-16T1

We, therefore, find meritless defendant's contention that he was deprived 

of a fair trial because the photo was twice displayed.

IV.

Defendant was sentenced to a twenty-year prison term, subject to an 

eighty-five percent period of parole ineligibility pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of 

aggravated manslaughter; a seven-year concurrent term for unlawful possession 

of a weapon; and a consecutive seven-year sentence, also subject to a NERA 

parole ineligibility period, for aggravated assault.

The trial judge applied aggravating factors one, three, six and nine, 

N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), to all counts, and applied aggravating 

factor two, N.J.S.A. 2C:44-1(a)(2), separately, to the aggravated assault charge.6

The court attributed "medium weight" to aggravating factor one, "[t]he 

nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), noting the 

shots were fired at a moving target—the Taurus—in the dark in a residential 

neighborhood, where numerous young people congregated. The judge also 

6

 Although the judge included aggravating factor five in the order for 

commitment, his oral sentencing decision makes clear that he did not intend its 

application. "[W]here there is a conflict between the oral sentence and the 

written commitment, the former will control if clearly stated and adequately 

shown[.]" State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).
24 A-5140-16T1

noted: "the higher the degree of the crime," in this case, the first- and the 

second- degree, "the greater the . . . public need for protection [of the public],

and the more the need for deterrence [of others]." The judge concluded: "[t]he 

senseless nature of the shootings and the fact that . . . defendant fled the scene

. . . leads this [c]ourt to find that the aggravated manslaughter and the aggravated 

assault were committed in a depraved manner."

With respect to the aggravated assault of Chambers, the court attributed 

"somewhat low weight" to aggravating factor two, "[t]he gravity and seriousness 

of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), due to the severity of 

the injury she suffered.

The judge gave "medium weight" to aggravating factor three, "[t]he risk 

that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), 

recognizing defendant had accumulated a criminal record consisting of two prior 

arrests, two municipal court convictions, fifteen juvenile "incidents," and a 

separate pending homicide charge. The judge also considered defendant's 

numerous probation violations, his lack of employment history, and his 

demeanor when questions were addressed to him. Regarding the latter point, 

the judge commented:

[W]hen comments were addressed to him, it is my – I'm 

not a doctor, [defendant]. But you were unable to take 
25 A-5140-16T1

those comments and respond to them in a way that I 

would consider would have been appropriate. Instead, 

you were too quick to respond. I understand sometimes 

there are circumstances that are beyond you, but that to 

me is a risk that you may have to consider heartily 

because – work on it while you are going to be 

incarcerated because this is something that could get 

you involved in a number of instances whether in or 

out.

The judge noted various witnesses mentioned defendant's affiliation with a local 

street gang;

7 but acknowledged: "I do not have any independent or substantial 

evidence as to the extent of [defendant's] involvement in that particular group." 

Accordingly, the judge gave "minimum to low weight" to defendant's gang 

affiliation in his analysis of aggravating factor three.

Defendant argues the judge, in analyzing aggravating factor one, 

improperly relied on the degree of the crimes, and double-counted recklessness, 

which is an element of aggravated manslaughter; and improperly relied on the 

fact defendant fled the scene which, according to defendant, is commonplace 

and not especially heinous, cruel, or depraved. Defendant further argues the 

crimes were not especially cruel, insofar as defendant did not intentionally 

inflict pain or suffering upon the victims. Regarding factor two, defendant 

7

 A pretrial ruling barred the prosecutor from mentioning defendant's gang 

affiliation at trial.
26 A-5140-16T1

contends the sentencing court again impermissibly double-counted because the 

severity of the injury constitutes an element of aggravated assault and already 

factored into the grading of the charge. Defendant also argues the sentencing 

judge improperly relied on his perception of defendant's responses to the court, 

as well as on unsubstantiated allegations of gang involvement, when weighing 

aggravating factor three. Specifically, defendant notes the sentencing court 

conceded the lack of independent or substantial evidence of defendant's gang 

affiliation. Consequently, defendant argues there was no credible evidence on 

which to base those findings.

Applying a deferential standard of review to the judge's sentencing

determination, we find no error in the judge's identification and balance of the 

"aggravating and mitigating factors that are supported by competent credible 

evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State 

v. Lawless, 214 N.J. 594, 606 (2013)).

Recognizing the judge's application of aggravating factor one "must be 

based on factors other than the death of the victim and the circumstances 

essential to support a finding that the defendant has acted with extreme 

indifference to human life," State v. Fuentes, 217 N.J. 57, 76 (2014), we 

conclude the judge properly analyzed facts that went beyond the essential 
27 A-5140-16T1

elements of the crime. Multiple shots were fired in the dark at a moving target 

in a residential neighborhood in an area populated by numerous bystanders. This 

combination of facts transcends the requisite basis for reckless indifference and 

buttresses the application of aggravating factor one. Defendant placed 

numerous people at risk of bodily injury or death by wantonly and repeatedly 

firing. See Lawless, 214 N.J. at 609-10 ("[C]ourts applying aggravating factor 

one focus on the gravity of the defendant's conduct, considering both its impact 

on its immediate victim and the overall circumstances surrounding the criminal 

event.").

We also reject defendant's argument that the judge impermissibly relied

on the grading of the crimes in applying factor one. The judge simply quoted

the relevant case law that framed his analysis:

[T]he paramount reason that is provided that the [c]ourt

focused on is the severity of the crimes is to ensure the 

protection of the pub[l]ic and the deterrence to others.

Thus, the higher the degree of the crime, the greater the 

. . . public need for protection, and the more the need 

for deterrence.

See Fuentes, 217 N.J. at 74 (quoting State v. Megargel, 143 N.J. 484, 500 

(1996)) ("[T]he paramount reason we focus on the severity of the crime is to 

assure the protection of the public and the deterrence of others. The higher the 
28 A-5140-16T1

degree of the crime, the greater the public need for protection and the more need 

for deterrence.").

Finally, in applying aggravating factor one, the sentencing judge properly 

considered that defendant fled the scene. Although criminal defendants may 

routinely flee the scene of their crimes, in this case it is noteworthy defendant 

fled without rendering or calling for aid, leaving Chambers, his codefendant's 

girlfriend and unintended victim, struggling for life. The judge did not err in 

according "medium weight" to factor one.

We determine the remainder of defendant's sentencing arguments to be 

without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). 

We briefly note the low weight the judge attributed to aggravating factor two 

was warranted by the severity of Chambers's injuries that more than surpassed 

the statutory element of "serious bodily injury." N.J.S.A. 2C:11-1(b) (defining 

serious bodily injury as an injury "which creates a substantial risk of death or 

which causes serious, permanent disfigurement, or protracted loss or impairment 

of the function of any bodily member or organ"); see also State v. Mara, 253 

N.J. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries, which exceed 

the statutory minimum for the offense, may be considered as aggravating."). 

And, although the judge credited the testimony of several witnesses in finding 
29 A-5140-16T1

defendant's gang affiliation, see State v. Smith, 262 N.J. Super. 487, 530 (App. 

Div. 1993) ("sentencing judges may consider material that otherwise would not 

be admissible at trial, as long as it is relevant and trustworthy"), the judge 

attributed only "minimum to low weight" to that affiliation because there was 

no evidence establishing the extent of his involvement. Moreover, defendant's 

lengthy record alone warranted the "medium weight" the judge attributed to 

aggravating factor three.

Finally, the judge properly applied the Yarbough8factors in imposing a 

consecutive sentence for the aggravated assault of Chambers. As the judge 

8

 In Yarbough, 100 N.J. at 644, the Court delineated factors upon which a 

sentencing court should focus in determining whether a sentence should run 

concurrent or consecutive:

(a) the crimes and their objectives were predominantly 

independent of each other;

(b) the crimes involved separate acts of violence or 

threats of violence;

(c) the crimes were committed at different times or 

separate places, rather than being committed so closely 

in time and place as to indicate a single period of 

aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be 

imposed are numerous.
30 A-5140-16T1

noted, Burroughs and Chambers were in "two separate locations" when they 

were shot; Chambers was seated inside the BMW, and Burroughs was shot "on 

the sidewalk some ways away." Accordingly, the judge concluded, "[t]o issue 

concurrent sentences as the defense is proposing would not adequately take into 

account the [distinct] nature of the two harms inflicted by this defendant."

"[A] trial court has the discretion to impose consecutive sentences in cases 

where . . . the only factor supporting consecutive sentencing is multiple victims." 

State v. Molina, 168 N.J. 436, 442 (2001). "Although that principle resonates 

most clearly in cases in which a perpetrator intentionally targets multiple victims

. . . it also applies to cases in which, as here, the defendant does not intend to 

harm multiple victims but it is foreseeable that his or her reckless conduct will 

result in multiple victims." State v. Carey, 168 N.J. 413, 429 (2001).

We perceive no violation of the sentencing guidelines; the aggravating 

and mitigating factors found by the judge were based upon credible evidence in 

the record; and the sentence imposed for these multiple crimes is not "clearly 

unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70 

(quoting State v. Roth, 95 N.J. 334, 365 (1984)).

Affirmed.