RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0365-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON MAYS,

Defendant-Appellant.

_______________________

Submitted May 11, 2021 – Decided May 28, 2021

Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Hunterdon County, Indictment No. 17-01-

0032.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Michael J. Williams, Acting Hunterdon County 

Prosecutor, attorney for respondent (Jeffrey L. 

Weinstein, Acting Assistant Prosecutor/Special Deputy 

Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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-0365-18

Defendant was tried before a jury and found guilty on two counts of 

second-degree official misconduct, in violation of N.J.S.A. 2C:30-2(a), seconddegree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(2), and other offenses. 

The trial court sentenced defendant to an aggregate term of sixteen years in 

prison, with ten years of parole ineligibility. Defendant appeals from the 

amended judgment of conviction (JOC) dated September 17, 2018. We affirm

defendant's conviction but remand for resentencing. 

I.

In January 2017, a Hunterdon County grand jury returned an indictment 

charging defendant, a correctional officer at Edna Mahan Correctional Facility 

(EMCF) with: second-degree official misconduct by engaging in sexual conduct 

with A.F., N.J.S.A. 2C:30-2(a) (count one); third-degree criminal coercion of 

A.F., N.J.S.A. 2C:13-5(a)(4) (count two); fourth-degree criminal sexual contact 

with A.F. by touching her intimate body part for the purpose of sexual 

gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count three); 

second-degree official misconduct, by engaging in sexual conduct with B.D., 

N.J.S.A. 2C:30-2(a) (count four); second-degree sexual assault, committing an 

act of sexual penetration with B.D. while she was detained in prison, N.J.S.A. 

2C:14-2(c)(2) (count five); second-degree official misconduct by engaging in 
3 A-0365-18

sexual conduct with M.D., N.J.S.A. 2C:30-2(a) (count six); third-degree 

criminal coercion of M.D., N.J.S.A. 2C:13-5(a)(4) (count seven); fourth-degree 

criminal sexual contact with M.D. by having her touch his intimate body part 

for the purpose of sexual gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-

2(c)(2) (count eight); second-degree official misconduct by engaging in sexual 

conduct with C.L., N.J.S.A. 2C:30-2(a) (count nine); second-degree sexual 

assault upon C.L. while she was detained in prison, N.J.S.A. 2C:14-2(c)(2) 

(count ten); fourth-degree criminal sexual contact with C.L., N.J.S.A. 2C:14-

3(b) and N.J.S.A. 2C:14-2(c)(2) (count eleven); fourth-degree criminal sexual 

contact with C.L., N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count 

twelve); second-degree official misconduct by engaging in sexual conduct with 

J.O., N.J.S.A. 2C:30-2(a) (count thirteen); second-degree sexual assault upon 

J.O. while she was incarcerated, N.J.S.A. 2C:14-2(c)(2) (count fourteen); and 

second-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) (count 

fifteen).1

 

By order entered on March 27, 2018, the trial judge limited defendant's 

cross-examination of the alleged victims. The order stated that cross1

 We use initials to identify the alleged victims of the sexual offenses. See R.

1:38-3(c)(12). 
4 A-0365-18

examination was limited to the facts of the inmates' indictable convictions, the 

dates of the offenses, the degrees of the offenses, the names of the offenses, and 

the sentences imposed. Defendant was prohibited from cross-examining the 

inmate witnesses as to the underlying facts of the convictions, and the 

underlying reasons for any violation of probation. 

We briefly summarize the evidence presented at trial. EMCF is the State's 

only all-female correctional facility. EMCF houses up to 600 inmates and 

employs about 340 corrections officers, eighty percent of whom are male. 

Defendant began working there in March 2005. 

To qualify for this position, defendant was required to pass a civil service 

test, undergo a background check, and meet certain physical fitness 

requirements. Defendant met these requirements and participated in training at 

the Correctional Staff Training Academy (CSTA) in Sea Girt. CSTA provides 

training in various areas including firearms, physical fitness, the New Jersey 

criminal code, and ethics. Participants are instructed to avoid undue familiarity 

with inmates.

When defendant began his employment at EMCF, he was given an 

orientation list. Defendant acknowledged receipt of this list in writing. The list

included the prohibition against undue familiarity with inmates and stated that 
5 A-0365-18

employees should not share personal information with inmates, or have any 

personal relationships with them, including sexual contact. Defendant also had 

training pursuant to the federal Prison Rape Elimination Act of 2003 (PREA), 

34 U.S.C. §§ 30301-09, which also covered prohibitions on sexual conduct 

between inmates and corrections officers. 

Lieutenant Hector Smith, the shift commander at EMCF, described the 

layout of the facility, which has several cottages, including Alpha and Bravo 

cottage ("A" and "B" cottage, respectively). Smith explained that there are no 

security cameras in "A" and "B" cottage, and there are no cameras in the inmates' 

cells. In "A" cottage, there is a beauty room and an ice room. Corrections 

officers are required to keep track of the number of inmates by regularly 

performing counts. 

Smith also described the inmate disciplinary process. He said officers 

have the discretion to issue oral warnings or written charges to inmates for minor 

or "spot" infractions. More serious violations of the prison rules, including 

fighting and assaults, are written on a blue sheet. These violations may result 

in placement away from the general prison population. 

Inmates are provided with the facility's code of conduct, which precludes, 

among other things, inmates from having personal relationships with corrections 
6 A-0365-18

officers, including sexual contact. Inmates are required to report violations of 

this policy. If an inmate reports sexual contact by a corrections officer, the 

inmate is removed from her area and taken for a medical assessment. The inmate 

is placed in protective custody while the allegation is investigated. An inmate 

who falsely reports undue familiarity with an officer is subject to discipline. 

A.F. testified that she had been incarcerated at EMCF on two occasions 

for drug offenses, shoplifting, and violations of the conditions of the intensive 

supervision program. She knew defendant as an officer while she was housed 

in "A" cottage. She said defendant began to tell her she was pretty, and then 

asked to see the intimate parts of her body during counts. 

According to A.F., defendant's actions became physical when he caught 

her stealing food from the kitchen. He pointed to the "blue sheet" and asked 

what she was going to do for him. She was concerned a disciplinary violation 

would result in the loss of privileges and delay her release. Defendant told her 

to be undressed when he arrived for count. She complied. On another occasion, 

defendant arrived in her cell. She said he licked her neck and touched her 

breasts. 

B.D. testified that in July 2016, she was an inmate at EMCF, where she 

was serving a sentence for burglary. She has prior convictions for fraud, 
7 A-0365-18

weapons, forgery, and possession of a controlled dangerous substance (CDS). 

She also has been sentenced to probation. B.D. said she was housed in "A" 

cottage at EMCF, and defendant was one of the corrections officers assigned to 

the cottage. She thought defendant was a "nice looking man" and "persistently" 

"came onto" him by flirting with him and trying to "look cute." 

B.D. testified that around July 4, 2016, defendant showed her a condom 

and suggested that they go to the beauty room together during an inmate count. 

B.D. said she wanted to remain in her room, but defendant was afraid they would 

get caught and she agreed to go to the beauty room. Once there, they had sexual 

intercourse. According to B.D., defendant bent her over a chair and entered her 

from behind while she looked out the window to see if anyone was coming. 

They were interrupted when B.D. saw a Sergeant outside walking toward the 

front of the building. B.D. quickly pulled up her pants and ran to her room, and 

defendant returned to his office. 

Approximately three months later, B.D. met with detectives from the 

prosecutor's office. She initially denied having sexual relations with defendant 

because she was frightened, and she did not want defendant or herself to get in 

trouble. Later that same day, B.D. revealed that she had sexual intercourse with 
8 A-0365-18

defendant once. She said she did not reveal more because she wanted to keep 

things "short" and did not want to get involved. 

After she learned she would have to testify at trial in this case, B.D. told 

the prosecutors she also had performed oral sex on defendant in the officers'

bathroom after he came in her room for count. B.D. said that she approached

defendant when he came into her room for a count. He told her, "not here," and 

they went into the bathroom, where she performed oral sex on defendant. 

Thereafter, defendant quickly left the bathroom. He handed B.D. some 

napkins and told her to make it look as if she was cleaning. She also told 

prosecutors that on another occasion in July 2016, she removed her clothes and 

sat naked on her bed, at defendant's request. B.D. described defendant's penis, 

indicating that it was lighter colored at the tip and darker toward his body. She 

was shown a photograph of the defendant's penis and testified that it looked like 

defendant's genitals. 

C.L. testified that from March through August 2016, she was incarcerated 

at EMCF. She was serving a four-year sentence for attempting to obtain a CDS 

by fraud and possession of a CDS. She was housed in "A" cottage for a few 

months, and she saw defendant a couple of times per week during the morning 

or afternoon. 
9 A-0365-18

She said she first became uncomfortable when defendant began making 

certain comments to her, such as "hey sexy." She stated that she did not report 

the comments because she did not want to get in trouble. She also believed her 

word would not be believed over the word of a corrections officer. 

C.L. further testified that at times, while she was in her cell early in the 

morning during inmate count, defendant would touch her on her buttocks and 

vagina. She also complied with defendant's request that she touch his penis over 

his clothes. C.L. stated that she did so because she did not want defendant to 

become angry, and she was coming up for parole in August 2016. 

C.L. stated that eventually, defendant told her he wanted to meet her in 

the beauty room during inmate counts when no one else was around. She 

testified that defendant was adamant about being in the beauty room because 

that room had a window which faces toward the main entrance of the building 

and he could see if anyone was coming. 

C.L. testified that at some point, she went with defendant to the beauty 

room. Defendant had a condom. She pulled down her pants and underwear and 

they had sexual intercourse. They stopped because someone was approaching

the outside entrance. C.L. ran back to her cell. She told three of her close 

friends, inmates J.D., A.F., and C.G., about the incident. 
10 A-0365-18

Later, C.L. was released to a halfway house. Law enforcement officers 

visited her there and questioned her about defendant. She testified that initially, 

she did not mention having sexual intercourse with defendant because she was 

afraid she would be sent back to prison. However, the investigators returned 

approximately one week later, and she told them she had not been completely 

truthful. She said that she and defendant had sexual intercourse. 

M.D. testified that she was incarcerated at EMCF for two years because 

of her conviction for theft and possession of a CDS. She had been sentenced to 

probation, but she violated probation and was sentenced to a term of 

incarceration, which she served at EMCF. M.D. acknowledged that she had 

prior convictions for possession of a CDS, criminal trespass, shoplifting, and 

theft. 

M.D. testified that in 2016, she had been housed in "A" cottage, where 

defendant worked on Sundays and Mondays. She explained that in July or 

August 2016, defendant became flirtatious and expressed an interest in having 

sex with her. She said defendant would ask to see her naked when she got out 

of the shower, and he would pull her covers off when she was sleeping. 

M.D. further testified that on one occasion, defendant came to her cell and 

had her stroke his penis. At another time, defendant asked her to remove her 
11 A-0365-18

panties. She complied because she felt she did not have any choice in the matter. 

She said the tip of defendant's penis was lightly colored and the bottom part was 

darker in color. She was shown the photographs of defendant's penis. She said 

the penis shown in the photos was consistent with her recollection. 

M.D. also stated that about one week later, defendant called her into his 

office and said he was not going to do her any special favors such as smuggling 

in items from outside the prison or overlooking disciplinary infractions. She 

asked defendant why he would risk ruining his career by engaging in sexual 

activity with inmates when he could have sex outside the prison. 

According to M.D., defendant acknowledged that risk and indicated he 

could go to jail or face a lawsuit. M.D. said defendant continued to tell her that 

he wanted to see her vagina and ask her to "go on all fours." She testified that

she did not initially report these incidents because she was afraid it would delay 

her release date. 

J.O. testified that she had been an inmate at EMCF since July 2009. She 

had been convicted of aggravated manslaughter, possession of a weapon for an 

unlawful purpose, and other offenses. She had been sentenced to twenty-five 

years of incarceration and required to serve eighty-five percent of her sentence
12 A-0365-18

before becoming eligible for parole. She also had a prior conviction for 

possession of a CDS. 

J.O. stated that defendant began to flirt with her by making comments 

about her body. She said she welcomed his attention. She testified that in April

2016, she and defendant went to the ice room at "A" cottage, while another 

inmate acted as a lookout. J.O. said she performed oral sex upon defendant. She 

described his penis as large and circumcised. She stated that defendant's penis

was hooked-shaped, like a banana. 

J.O. stated that during this incident, defendant began to curse at her for 

her choice of a lookout. According to defendant, that inmate had a reputation 

for being a "snitch." J.O. stated that after she finished performing oral sex upon 

defendant, she and defendant left the room separately. She returned to her cell. 

The inmate who had acted as the lookout also testified and corroborated parts of 

J.O.'s testimony. 

Defendant testified on his own behalf. He denied having any sexual 

contact with the five inmates who testified against him. He said they had all 

fabricated the allegations as retaliation because he had disciplined them. He 

stated that he caught M.D. with food she was not allowed to have, and she was 

angry because he made her discard it. Defendant admitted he never "wrote up" 
13 A-0365-18

the accusers, but insisted they were out to get him. He claimed he heard them 

say they were going to "get" him. 

Defendant's girlfriend testified for the defense. She was asked to describe 

defendant's penis. She said it was not shaped like a banana and did not have a 

hook-like shape. She acknowledged that the tip was lighter in color than the 

bottom part. She was shown photographs and said they accurately depicted 

defendant's penis and its overall coloration. 

Defendant also presented testimony from an inmate, who said she saw 

several inmates, including A.F. and M.D., crushing and snorting pills at EMCF. 

The inmate also testified that she heard A.F. tell M.D. she was going to "set"

defendant "up" because he caught her several times with food that she had 

stolen. 

Another inmate testified that there were no disciplinary problems at "A" 

cottage until B.D., M.D., and C.L. arrived there and began crushing and snorting 

pills. The inmate said she heard B.D., M.D., and C.L. angrily state they were 

going to "get" defendant. She told defendant what she heard and warned him to 

be careful. 

The jury found defendant guilty on counts four (official misconduct by 

engaging in sexual conduct with B.D.); five (sexual assault upon B.D.); nine 
14 A-0365-18

(official misconduct by engaging in sexual conduct with C.L.); twelve (sexual 

contact with C.L.); and fifteen (engaging in a pattern of official misconduct). 

The jury found defendant not guilty of the other charges. Thereafter, the judge 

denied defendant's motion for a directed verdict or, in the alternative, a new trial. 

At sentencing, the judge merged count five with count four, and count 

twelve with count nine. On counts four and nine, the judge sentenced defendant 

to eight-year terms of incarceration, each with a five-year period of parole 

ineligibility. The judge required defendant to serve the sentences consecutively. 

The judge also sentenced defendant to a concurrent eight-year term of 

incarceration on count fifteen. The judge entered the JOC dated August 6, 2018, 

and an amended JOC dated September 17, 2018. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS DENIED THE RIGHT TO A 

FAIR TRIAL DUE TO PREJUDICIAL JOINDER; 

THE TRIAL COURT SHOULD HAVE SUA SPONTE

ORDERED A SEVERANCE OF THE COUNTS 

ALLEGED AS TO THE SEPARATE VICTIMS. (Not 

Raised Below).

(a) Prong 1 – The evidence was not relevant to a 

material issue.

(b) Prong 4 – The State would have failed to 

establish that the probative value of the evidence 

is not outweighed by its apparent prejudice.
15 A-0365-18

POINT II

THE DEFENDANT WAS DENIED THE RIGHT TO 

A FAIR TRIAL DUE TO THE COURT'S DENIAL OF 

DEFENDANT'S RIGHT TO PRESENT RELEVANT 

EVIDENCE DESIGNED TO ATTACK THE 

CREDIBILITY OF THE WITNESSES.

POINT III

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTIONS FOR JUDGMENTS OF 

ACQUITTAL [NOTWITHSTANDING THE 

VERDICT] OR NEW TRIAL.

POINT IV

THE SENTENCE OF EIGHT YEARS IN PRISON, 

[WITH] FIVE YEARS [OF] PAROLE 

INELIGIBILITY ON COUNTS 4 AND 9, 

RESULTING IN SIXTEEN YEARS IN PRISON 

WITH TEN YEARS OF PAROLE INELIGIBLITY 

WAS EXCESSIVE BECAUSE THE COURT ERRED 

IN APPLYING AGGRAVATING SENTENCING 

FACTORS ONE AND TWO. 

 II.

As noted, defendant argues that the trial court erred by failing to sever sua 

sponte the counts pertaining to the different alleged victims. He contends he 

was denied a fair trial by the joinder of the counts for trial. 

A. Invited Error.

We note initially the State contends that defendant's failure to seek 

severance of the counts involving the five separate alleged victims was 

apparently part of the defense strategy. The State notes that, at trial, defendant 
16 A-0365-18

claimed that the alleged victims had conspired against him in retaliation for his 

disciplinary actions. According to the State, the joint trial of the charges 

involving the five alleged victims furthered the defense strategy of showing that 

they engaged in a conspiracy to frame him. The State therefore argues that 

defendant's argument regarding severance should be barred under the invited 

error doctrine. 

"Under that settled principle of law, trial errors that 'were induced, 

encouraged or acquiesced in or consented to by defense counsel ordinarily are 

not a basis for reversal on appeal. . . .'" State v. Bailey, 231 N.J. 474, 490 (2018) 

(alteration in original) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). "In 

other words, if a party has 'invited' the error, he [or she] is barred from raising 

an objection for the first time on appeal." A.R., 213 N.J. at 561 (citing N.J. Div. 

of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 342 (2010)). "The doctrine 

prevents litigants from 'playing fast and loose' with, or otherwise manipulating, 

the judicial process." Bailey, 231 N.J. at 490 (quoting State v. Jenkins, 178 N.J. 

347, 359 (2004)). 

Here, defense counsel did not file a motion for severance of the counts 

involving the separate alleged victims and did not object to the joinder of the 

charges. However, defense counsel did not expressly seek a joint trial on all 
17 A-0365-18

charges in the indictment. Furthermore, there is nothing in the record indicating 

that defense counsel wanted joinder of the charges as a matter of strategy. 

The record shows that defense counsel did, in fact, claim that the alleged 

victims conspired to frame defendant. Counsel may have pursued that defense 

because the charges were joined in the indictment and he believed a severance 

motion would not be successful. This is not the sort of "gamesmanship-driven

scenario to which the invited error doctrine is traditionally applied." Ibid.

Therefore, we will address defendant's argument that the trial court should 

have, on its own motion, severed the counts involving the five alleged victims. 

B. Joinder of the Charges for Trial. 

Rule 3:7-6 permits the State to charge multiple offenses in the same 

indictment in a separate count for each offense. Under the rule, joinder is 

permissible if the offenses "are of the same or similar character or are based on 

the same act or transaction or on [two] or more acts or transactions connected 

together or constituting parts of a common scheme or plan." Ibid.

Rule 3:7-6 further provides that "[r]elief from prejudicial joinder shall be 

afforded as provided by [Rule] 3:15-2." Rule 3:15-2(b) states that if "it appears 

that a defendant . . . is prejudiced by a permissible or mandatory joinder of 

offenses or of defendants in an indictment or accusation the court may order an 
18 A-0365-18

election or separate trials of counts, grant a severance of defendants, or direct 

other appropriate relief." 

Joinder of offenses is favored but interests in economy and efficiency do 

not override a defendant's right to a fair trial. State v. Sterling, 215 N.J. 65, 72-

73 (2013). The test for determining prejudice is "whether, assuming the charges 

were tried separately, evidence of the offenses sought to be severed would be 

admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." Id. at 

73 (alteration in original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341 

(1996)).

Evidence of other crimes, wrongs, or acts "may be admitted . . . as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident when such matters are relevant to a material issue in 

dispute." N.J.R.E. 404(b)(2). Such evidence is admissible if it is relevant to 

prove a fact genuinely in dispute "and the evidence is necessary as proof of the 

disputed issue." State v. Darby, 174 N.J. 509, 518 (2002) (quoting State v. 

Hernandez, 170 N.J. 106, 118-19 (2001)).

Furthermore, "[i]f the evidence would be admissible at both trials, then 

the trial court may consolidate the charges because 'a defendant will not suffer 

any more prejudice in a joint trial than he would in separate trials.'" Chenique-
19 A-0365-18

Puey, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. 

Div. 1983)). N.J.R.E. 404(b)(1) provides, however, that "evidence of other 

crimes, wrongs, or acts is not admissible to prove a person's disposition in order 

to show that on a particular occasion the person acted in conformity with such 

disposition."

In State v. Cofield, the Court adopted a four-part test to determine the 

admissibility of other-crimes evidence:

1. [t]he evidence of the other crime must be admissible 

as relevant to a material issue;

2. [it] must be similar in kind and reasonably close in 

time to the offense charged;

3. [t]he evidence of the other crime must be clear and 

convincing; and

4. [t]he probative value of the evidence must not be 

outweighed by its apparent prejudice.

[127 N.J. 328, 338 (1992).]

"Trial courts must apply that test on a case-by-case basis 'in order to avoid the 

over-use of extrinsic evidence of other crimes or wrongs.'" State v. Green, 236 

N.J. 71, 82 (2018) (quoting Cofield, 127 N.J. at 338). 

On appeal, defendant argues that the evidence of the offenses sought to be 

severed did not meet the first prong of the Cofield test. He asserts the evidence 
20 A-0365-18

was not material to any issue in dispute because he had denied committing any 

of the alleged sexual offenses. Defendant also argues that the evidence was not 

necessary to show he had a motive to engage in the alleged sexual conduct. He 

contends that motive would have been established by proof he committed the 

alleged conduct. 

Here, the other crimes evidence was relevant to prove that defendant had 

engaged in similar acts with each of the alleged victims under similar 

circumstances. The evidence also was relevant to show that defendant had the 

opportunity to engage in sexual activity in the inmates' cells or other rooms 

where he would not be seen. Thus, the evidence satisfied the first prong under 

Cofield. 

Defendant further argues that the other crimes evidence did not satisfy the 

fourth Cofield factor. He asserts that any probative value the evidence might 

have had was substantially outweighed by its undue prejudice. He contends the 

State offered the evidence solely to show that he had a propensity to commit 

sexual offenses. He asserts the evidence distracted the jurors and led them to 

forego an independent analysis of the evidence as it pertained to the charges 

against each individual victim. We disagree. 
21 A-0365-18

Admission of evidence of other crimes or wrongs "requires an inquiry 

distinct from the familiar balancing required under N.J.R.E. 403: the trial court 

must determine only whether the probative value of such evidence is outweighed 

by its potential for undue prejudice, not whether it is substantially outweighed 

by that potential as in the application of Rule 403." Id. at 83 (internal citations 

omitted) (citing State v. Barden, 195 N.J. 375, 389 (2008)). "[I]f other less 

prejudicial evidence may be presented to establish the same issue, the balance 

in the weighing process will tip in favor of exclusion." Id. at 84 (alteration in 

original) (quoting State v. Rose, 206 N.J. 141, 161 (2011)). 

Here, the balance weighed in favor of admission of the evidence of the 

other alleged crimes. As noted, the evidence was relevant to show that defendant 

had the opportunity to engage in such activity with inmates and it was feasible 

for him to do so while he was working. The evidence was prejudicial to the 

defense, but not unduly so, and there was no less prejudicial evidence to 

establish these facts. 

Moreover, the judge instructed the jury that defendant had been charged 

with various offenses involving five separate victims. The judge told the jury it

must consider the allegations regarding these victims separately. The judge 

stated:
22 A-0365-18

You should not consider any of the proofs that were 

presented during this trial to prove defendant guilty of 

the counts against one of the victims as proof against 

the other victim as they must be considered separately. 

You may not conclude that just because you find 

defendant committed the offenses against one of the 

victims that he must be guilty of committing the 

offenses against the other victim. The State must 

separately prove beyond a reasonable doubt the 

offenses alleged against each independent victim. And 

therefore you must consider the offense against each 

victim separately and independently. 

We must assume the jury followed the judge's instruction. State v. Burns, 

192 N.J. 312, 335 (2007). As noted previously, the jury found defendant guilty 

only on the counts involving two of the alleged victims and found defendant not 

guilty on ten counts involving the other three inmates. The jury's verdict 

indicates that the jury followed the court's instructions and considered the 

charges as to each alleged victim separately. 

III.

Defendant next argues he was denied the right to a fair trial because the 

trial judge precluded him from presenting relevant evidence challenging the 

credibility of the five alleged victims who testified against him. He argues that 

the judge should have permitted him to introduce evidence that these witnesses

had violated prison rules by using and distributing drugs, which he claims was 
23 A-0365-18

relevant to show that the victims fabricated the allegations to avoid disciplinary 

actions. Defendant further argues that the judge erred by precluding him from 

challenging the credibility of the alleged victims by questioning them about their 

criminal records. 

A trial court's evidentiary ruling is reviewed under an abuse of discretion 

standard. State v. Prall, 231 N.J. 567, 580 (2018) (citing Estate of Hanges v. 

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). An appellate court

will not set aside an evidentiary ruling unless it appears that the trial court made 

a "clear error of judgment." Ibid. (quoting State v. J.A.C., 210 N.J. 281, 295 

(2012)).

At the time of the trial of this case, N.J.R.E. 608 precluded the use of 

specific instances of conduct to challenge the credibility of a witness. State v. 

Scott, 229 N.J. 469, 481 (2017). The rule "bar[red] not only the use of extrinsic 

evidence but also cross-examination into specific instances of misconduct." Id.

at 488 (Rabner, C.J., concurring).2

2

 N.J.R.E. 608 was amended effective July 2020 in response to the Court's 

decision in Scott. See Biunno, Weissbard, & Zegas, Current N.J. Rules of 

Evidence, cmt. on N.J.R.E. 608 (2021). We apply the version of the rule in 

effect when the case was tried. 
24 A-0365-18

The rule "permit[ted] evidence in the form of opinion, reputation, or a 

prior criminal conviction to attack a witness's credibility by establishing the 

witness's character for untruthfulness." State v. Guenther, 181 N.J. 129, 140 

(2004). However, "in limited circumstances and under very strict controls a 

defendant has the right to show that a victim-witness has made a prior false 

criminal accusation for the purpose of challenging that witness's credibility." 

Id. at 154. 

In this case, the judge granted the State's motion to limit crossexamination of the victim-witnesses. The judge noted that the State was not 

seeking to prevent admission of the alleged victims' prior convictions, but rather, 

to limit the defenses from questioning these witnesses on the conduct that 

resulted in their convictions. 

The judge stated that N.J.R.E. 609 only permits evidence of prior 

indictable offenses that are the subject of valid convictions, but not juvenile or 

disorderly persons matters. The judge also stated that while a violation of 

probation cannot be used to impeach a witness, the sentence imposed may be 

used to impeach the witness pursuant to State v. Jenkins, 299 N.J. Super. 61, 75 

(App. Div. 1997). 
25 A-0365-18

The judge then conducted a N.J.R.E. 403 analysis and found that, as so 

limited, the alleged victims' prior convictions were relevant, probative, and not 

unduly prejudicial to the State. The judge noted that evidence the alleged 

victims were incarcerated at EMCF or another correctional facility due to a 

criminal conviction would necessarily be brought out at trial. 

The judge also noted that Guenther applied in limited circumstances

where the witness made a prior false accusation similar in nature to the crime 

with which defendant had been charged. The judge stated that except for that

limited exception, the evidence rules did not permit the admission of specific 

instances of prior bad conduct for the purpose of challenging the credibility of 

a witness. 

The judge therefore found the evidence rules only permit proof of the

convictions themselves, not the specific underlying acts that resulted in the 

convictions, to be admitted for the purpose of challenging the credibility of the 

witnesses. The judge found that to delve into those details would be unduly

prejudicial to the State, confuse the jury, and effectively create minitrials.

We are convinced the judge's decision was consistent with the evidence 

rules in effect at the time this matter was tried. The judge correctly found that

a witness's prior convictions could be used to challenge the credibility of the 
26 A-0365-18

witness, but the defense could not inquire into the facts underlying those 

convictions.

We note that the judge allowed defense counsel to claim the alleged 

victims had conspired against him in retaliation for taking disciplinary actions 

against them. The judge also permitted defendant to assert that the alleged 

victims' claims were an attempt to preempt the imposition of disciplinary 

sanctions. In addition, the judge instructed the jury that:

[C.L.] smoked cigarettes and met with [J.D.] in her 

room in violation of [EMCF] rules. The defense also 

introduced evidence that [A.F.], [B.D.] and [M.D.] 

smoked cigarettes, used drugs and traded pills in 

violation of [EMCF] rules. The evidence has been 

offered to show bias by these witnesses against the 

defendant. You should consider this evidence along 

with all the other evidence in the case in determining 

whether or not the state has proven beyond a reasonable 

doubt that defendant is the person who committed the 

crimes alleged in the indictment.

Thus, the record does not support defendant's contention that the trial 

judge denied him of his right to a fair trial by limiting him from presenting

evidence regarding the alleged victims' other crimes and bad acts. The record 

shows the judge considered the evidence, excluded cumulative or inadmissible 

evidence, and allowed the defense to present relevant evidence pertaining to the 

defense's claim that the witnesses had conspired and fabricated the claims 
27 A-0365-18

against defendant. The judge's decision to limit cross-examination of the inmate 

witnesses was not a mistaken exercise of discretion. 

IV. 

Defendant also argues that the trial judge erred in denying his motion for 

a judgment of acquittal, or in the alternative, for a new trial. He argues that the 

State's evidence was insufficient to support the jury's verdict. 

Defendant asserts that the State relied almost entirely upon the testimony 

and credibility of the alleged victims. He contends there was no corroborating 

evidence to support their claims, and there was no physical evidence to support 

the allegations. He argues that the convictions represent a miscarriage of justice. 

Rule 3:20-1 provides that the trial court may grant a motion for a new trial 

"in the interest of justice. . . . unless, having given due regard to the opportunity 

of the jury to pass upon the credibility of the witnesses, it clearly and 

convincingly appears that there was a manifest denial of justice under the law." 

The decision is committed to the sound discretion of the trial judge, and an 

appellate court "should interfere with the exercise of that discretion only when 

'a clear abuse has been shown.'" State v. Van Ness, 450 N.J. Super. 470, 495-

96 (App. Div. 2017) (quoting State v. Brooks, 366 N.J. Super. 447, 454 (App. 

Div. 2004)).
28 A-0365-18

On appeal, our review "is limited to a determination of whether the trial 

court could reasonably have reached the findings it made based on 'sufficient 

credible evidence . . . in the record.'" Id. at 496 (alteration in original) (quoting 

Brooks, 366 N.J. Super. at 454). We must defer to the trial judge's "feel for the 

case" because the judge "had the opportunity to 'observe and hear the witnesses 

as they testified.'" Ibid. (quoting Brooks, 366 N.J. Super. at 454).

We reject defendant's argument that the judge erred by denying his motion 

for a judgment of acquittal or a new trial. We affirm the denial of defendant's 

motion substantially for the reasons stated by the trial judge in her written 

opinion addressing that motion. 

In the opinion, the judge carefully reviewed the evidence pertaining to 

counts four, five, nine, twelve, and fifteen, and noted the elements of each 

offense. The judge applied the correct standard for ruling on a motion under 

Rule 3:20-1 for judgment notwithstanding the verdict or for a new trial. 

The judge found that the State had presented sufficient evidence to support 

the jury's finding that defendant committed the offenses beyond a reasonable 

doubt. The record supports the judge's analysis and conclusion. Defendant's 

contention that the State presented insufficient evidence to support the jury's 

verdict lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2). 
29 A-0365-18

 V.

Defendant also argues that his sentence is excessive. He contends the 

judge erred in her findings on the aggravating and mitigating factors. He also 

contends the judge improperly imposed the same sentences for the offenses 

involving B.D. and C.L. 

Here, the judge found the following aggravating factors applied to counts 

four, five, nine, and twelve: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant 

will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter 

defendant and others from violating the law). In addition, the judge found that 

the following additional aggravating factors applied to counts nine and twelve, 

which involved defendant's sexual activity with C.L.: one, N.J.S.A. 2C:44-

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

1(a)(2) (gravity and seriousness of the harm to the victim).

The judge noted that, based on her testimony at trial, C.L. was particularly 

vulnerable and incapable of exercising normal mental or physical resistance. 

She had been approaching her release date and feared her release would be 

delayed if she did not yield to defendant's sexual advances. The judge also noted 

that C.L. was young, had an extensive history of drug abuse, and was new to the 

prison system, which defendant was probably aware of.
30 A-0365-18

The judge explained that while aggravating factors one and two applied 

to C.L., they did not apply to B.D. The judge noted that defendant also had

preyed upon B.D.'s vulnerabilities. However, B.D. had more experience in the 

prison system than C.L, and she did not have the same problems as C.L. 

The judge further found mitigating factor seven applied. N.J.S.A. 2C:44-

1(b)(7) (defendant has no history of criminal delinquency or activity). The judge 

found that no other mitigating factors applied. The judge concluded that the 

aggravating factors substantially outweighed the mitigating factors and that a 

substantial period of incarceration was necessary.

The judge also reviewed the factors for consecutive and concurrent 

sentences pursuant to State v. Yarbough, 100 N.J. 627 (1985), and determined 

that consecutive sentences should be imposed as to defendant's official 

misconduct because there were separate victims of these offenses, and the 

crimes occurred at separate times. 

On appeal, defendant argues that the judge erred by imposing the same 

sentences on counts four and nine, even though the judge found aggravating 

factors one and two applied to C.L., but not B.D. He contends the judge failed 

to differentiate between B.D. and C.L., the facts underlying the offenses, or how 

the aggravating factors applied to one offense and not the other. 
31 A-0365-18

Defendant further argues that the offenses were not committed in a 

particularly heinous, cruel, or depraved manner. He asserts there was nothing 

about the nature of the offenses that would warrant imposition of a sentence 

above the statutory minimum of five years for a second-degree offense. N.J.S.A. 

2C:44-1(a)(1). 

These contentions have no support in the record. As noted above, the 

judge thoroughly explained why aggravating factors one and two applied to the 

offenses involving C.L. and why these aggravating factors did not apply to the 

offenses involving B.D. Moreover, the judge fully explained why she was 

imposing the same sentence on counts four and nine. 

We reject defendant's contention that the judge abused her discretion by 

imposing an eight-year term of incarceration, each with five years of parole 

ineligibility, on counts four and nine. We also reject defendant's contention that 

the judge erred by treating elements of the offenses as aggravating factors for 

sentencing. 

Defendant asserts that aggravating factors one and two are subsumed 

within his conviction for official misconduct as to C.L. The judge properly 

considered both the nature and circumstances of the offense, and the gravity and 

seriousness of the harm to the victim in determining the sentence that should be 
32 A-0365-18

imposed on count nine. This was not impermissible double-counting of the 

elements of the offense, as defendant claims. 

We are constrained, however, to remand for resentencing. While this 

appeal was pending, our Supreme Court issued its opinion in State v. Torres, 

N.J. , (2021), and addressed the standards for imposing consecutive 

sentences. The Court stated that Yarbough requires the trial court to place on 

the record a statement of reasons for imposing consecutive sentences, which 

should address the overall fairness of the sentence. Id. at (slip op. at 26) 

(quoting State v. Miller, 108 N.J. 112, 122 (1987)). 

The Court held that "[a]n explicit statement, explaining the overall 

fairness of a sentence imposed on a defendant for multiple offenses in a single 

proceeding or in multiple sentencing proceedings, is essential to a proper 

Yarbough sentencing assessment." Id. at (slip op. at 27) (citing Miller, 108 

N.J. at 122). As noted, in this case, the trial court imposed consecutive 

sentences. We therefore remand for resentencing in light of Torres. 

Affirmed in part, reversed in part, and remanded for resentencing in 

accordance with this opinion. We do not retain jurisdiction.