SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2255-19 

 A-3381-19

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

CHRISTOPHER R. SMALL, 

a/k/a STICKEY SMALL, 

CHRISTOPHER J. SMALL, 

STICKY SMALL, and 

CHRISTOPHER SMALL, 

 Defendant-Appellant. 

____________________________

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

CHRISTOPHER M. VERITY, 

a/k/a CHRISTOPHER VERITY, 

LEONARD C. VERITY, and 

DENNISVIL VERITY, 

 Defendant-Appellant. 

____________________________

NOT FOR PUBLICATION WITHOUT THE 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-2255-19

 Argued October 16, 2023—Decided November 16, 2023 

Before Judges Sabatino, Mawla, and Chase (Judge 

Sabatino concurring).

On appeal from the Superior Court of New Jersey, Law 

Division, Cape May County, Indictment No 19-06-

0291.

Tamar Yael Lerer, Assistant Deputy Public Defender,

argued the cause for appellant Christopher R. Small

(Joseph E. Krakora, Public Defender, attorney; Tamar 

Yael Lerer, of counsel and on the briefs). 

Andrew Robert Burroughs, Designated Counsel, 

argued the cause for appellant Christopher M. Verity 

(Joseph E. Krakora, Public Defender, attorney; Andrew 

Robert Burroughs, on the briefs). 

Gretchen Anderson Pickering, Senior Assistant 

Prosecutor, argued the cause for respondent (Jeffrey H. 

Sutherland, Cape May County Prosecutor, attorney; 

Gretchen Anderson Pickering, of counsel and on the 

briefs). 

PER CURIAM 

 In these back-to-back appeals, defendants Christopher M. Verity and

Christopher R. Small challenge their convictions and sentences for causing a 

drug-induced death and other controlled dangerous substance (CDS) offenses. 

We affirm in part and reverse and remand in part for the reasons expressed in 

this opinion. 
3 A-2255-19

 On October 3, 2018, J.C., a retired nurse, was driving north in Dennis 

Township when she saw a man walking from a van parked on the side of the 

road. She asked the man, whom she identified in court as Verity, whether he 

needed a ride and Verity said he did. J.C. then drove Verity south and dropped 

him off. 

J.C. then drove back north on the same road and passed the van again and 

noticed a man, later identified as Jan McCurdy, slumped over the steering wheel. 

She pulled over, walked to the van, and noticed McCurdy's face was discolored 

and had froth coming out of it. She called 9-1-1 and administered CPR. J.C. 

also noticed another man lying down with his head partially under the driver's 

seat. This individual, later identified as Kevin MacFarlane, was not breathing. 

New Jersey State Trooper Brian McGinn arrived at the scene and did not 

find any drug paraphernalia in the van. EMT John Sharp arrived and 

unsuccessfully attempted to resuscitate MacFarlane who was later pronounced 

dead at the hospital. McCurdy was administered Narcan, revived, and taken to 

the hospital. 

State Police Detective Kenneth Drake was the lead detective. He testified 

he arrived at the scene shortly after MacFarlane was pronounced dead. After 

interviewing J.C., Detective Drake visited Verity's residence and noticed a 
4 A-2255-19

needle, which contained fentanyl, and Verity appeared to be intoxicated. Police 

brought Verity back to State Police barracks for an interview. Detective Drake 

and Trooper Grant Stambaugh conducted the first interview on October 3, 2018, 

which was videoed and played for the jury. 

Having been placed in custody, Verity was properly read his Miranda 

rights, which he promptly waived before he was questioned.1 He stated he called 

McCurdy to ask for a ride to a convenience store to buy cigarettes. When 

McCurdy arrived to pick up Verity, McCurdy had MacFarlane with him. Verity 

did not know MacFarlane. Verity stated as they drove to the convenience store 

McCurdy and MacFarlane appeared to be intoxicated. On the way back from 

the store, McCurdy was driving erratically and had driven through a red light. 

Thereafter, Verity exited the van and walked about 200 feet before J.C. offered 

to give him a ride. Verity denied that drugs were "being done" in the car, 

claimed he did not see MacFarlane and McCurdy doing drugs, and denied selling 

both men drugs. Verity admitted he had a heroin problem and had ingested 

heroin that morning. 

Detective Drake and Trooper Stambaugh told Verity they did not believe 

him. When Detective Drake informed Verity one of the men had survived, 

1

 Miranda v. Arizona, 384 U.S. 436 (1966). 
5 A-2255-19

Verity stated he was told both men were dead. After correcting Verity, Detective 

Drake stated: 

I don't want to have to put words in your mouth about 

what the truth is. 'Cause the truth is . . . you're not 

telling us the truth right now because you're scared and 

I understand that and a normal person would be scared 

of this. We aren't here to get you in trouble for the guy 

that died in the car we are here . . . . 

[Trooper] Stambaugh: We're just trying to find out the 

truth. 

 Detective Drake and Trooper Stambaugh told Verity his story did not 

make any sense and then the detective stated: 

I want to tell you right now you are not really . . . in any 

trouble with us. However, if you keep lying to us and 

we keep uncovering things that you're lying about I'm 

going to make it my priority to make sure you are in 

trouble, but as of right now I'm goin' to tell you right 

now you are not in trouble with us, ok? 

The detective reiterated he had "a pretty good idea why [MacFarlane] died . . . 

because there was a person across the street that saw the interaction" and 

McCurdy was alive and told police his version of the story, which did not align 

with Verity's. 

As the interview progressed, Detective Drake assured Verity he and the 

trooper were not there "to put [Verity] in jail for some dead bodies . . . ." Later, 

Detective Drake said: 
6 A-2255-19

I'm not really here to jam you up . . . . I know you don't 

believe that, we're really not lookin' to put you in jail 

we're looking to figure out why. 

Verity: I'm already in trouble because I have 

paraphernalia shit sittin' out. 

[Trooper] Stambaugh: Right and if you want to keep it 

at that we need to know. 

 There was a break in the interview and, when it resumed, police read 

defendant his Miranda rights again. State Police Detective Desirae Kramer 

joined in the interview and showed Verity security tape from the convenience 

store. Verity recounted his story and stated on the drive back from the store, 

McCurdy was driving but then both McCurdy and MacFarlane began nodding 

off. Verity grabbed the wheel and hit the brakes. When McCurdy awoke, he 

told Verity to get out of the vehicle and Verity complied. Verity denied 

providing drugs to McCurdy and MacFarlane or seeing them use drugs. 

 Police interviewed Verity a second time on the evening of October 3, 

2018. Verity was read his Miranda rights and signed a form acknowledging his 

rights. He then agreed to let the police listen to recordings he made his phone 

of his conversation with McCurdy prior to being picked up to go to the 

convenience store. 
7 A-2255-19

Verity stated McCurdy called Verity that day asking if he could obtain 

heroin. Verity took McCurdy's and MacFarlane's money and bought them each 

"two wax folds" at five dollars per fold and purchased marijuana for himself. 

Verity purchased the drugs from "his guy" who, according to Verity, was upset 

Verity had come with two other individuals. Verity used McCurdy's phone to 

contact the seller because his phone had died. 

A day later, Detective Drake obtained surveillance footage showing 

Verity, McCurdy, and MacFarlane arriving at the seller's location, a motel, in a 

vehicle matching the one MacFarlane and McCurdy were later found in. The 

video showed Verity leaving the vehicle and then returning. Small was the 

seller. He was arrested on October 5, 2018. After conducting a search incident 

to Small's arrest, blue wax folds, a scale, and baggies were found in his motel 

room. 

 Police interviewed Verity a third time on October 22, 2018, and showed 

him the surveillance video. He was read his Miranda rights on this date and 

signed an acknowledgment. He confirmed he was the one who exited the vehicle 

to meet the seller. Verity stated he believed the two wax folds he obtained for 

McCurdy and MacFarlane contained heroin. At one point, Verity asked the 

officers, "[h]ow many more deaths have you guys had?" Detective Drake replied 
8 A-2255-19

"[a]fter this one, there was one that night, but there hasn't been any since really." 

Verity responded, "So, I helped take out the killer." He offered to help police 

"catch more people." 

 A Cape May grand jury indicted Small and Verity with first-degree druginduced death, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-9(a), (counts one and 

two); third-degree distribution of fentanyl, less than one ounce, N.J.S.A. 2C:35-

5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (counts three and four); third-degree 

conspiracy to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(5) 

and N.J.S.A. 2C:5-2(a)(1) (count five). Verity was also indicted on two counts 

of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (counts six 

and seven). 

 Verity moved to suppress his statements to the police.2 Detective Drake 

testified at the hearing Verity never invoked his right to remain silent or 

requested an attorney. The detective testified Verity was being questioned as 

part of the investigation of the overdose death and "at the time, he wasn't 

charged" regarding the death. He was seeking information from Verity about 

the incident and to gauge the level of his involvement because he was in the 

2

 At the suppression hearing, defense counsel clarified he was seeking to 

suppress the October 3, 2018 statement. 
9 A-2255-19

vehicle. Detective Drake explained he told Verity he was not in trouble because 

he believed the seller was responsible and Verity "was a witness more than 

anything else." The detective stated he was not lying to Verity when he assured 

him both times that he was not in trouble. According to Detective Drake, it was 

not until after the initial interview when he listened to the conversations 

recorded on Verity's phone that he realized Verity played a larger role. 

 The motion judge denied Verity's suppression motion because he found 

Detective Drake's testimony credible. The judge noted police did not charge 

Verity until over a month after the initial interview. He concluded police did 

not mislead Verity into a confession. 

 Defendants were tried together. The State presented the testimony of 

fourteen witnesses, including: J.C.; McCurdy; Trooper Stambaugh; Detectives 

Drake and Kramer; Ralph Gagliano, an expert forensic toxicologist; and Dr. 

Frederick DiCarlo, an expert forensic pathologist. Verity and Small each 

testified in their own defense. 

 J.C. described her encounter with Verity and later discovery of McCurdy 

and MacFarlane in the vehicle. Detective Drake recounted the investigation and 

testified as an expert in drug lingo. He explained heroin and fentanyl are 

typically sold in wax folds commonly known as bags. Verity's phone-recorded 
10 A-2255-19

conversations were admitted into evidence, and he was heard asking for two 

"whole ones" and for "diesel." Detective Drake explained "whole ones" meant 

ten folds of heroin. 

 Verity's defense counsel cross-examined Detective Drake regarding the 

assurances he gave Verity during the interview. The following colloquy ensued: 

[Defense counsel:] When you are dealing with a 

defendant in police headquarters is there any police 

obligation that you be truthful to them? 

[Detective Drake:] Absolutely not. 

[Defense counsel:] When . . . Verity is looking for 

reassurances that everything was okay, is that a normal 

practice to go along with that? 

[Detective Drake:] It is a normal practice. It's a tactic 

to get the truth out of the person that you're 

interviewing. 

 Detective Kramer testified regarding her role in the investigation. On 

direct, she explained that during investigations, police lie to defendants to find 

out the truth. During cross-examination the following colloquy ensued: 

[Defense counsel:] Now, when you talked to [Verity], 

he wasn't forthcoming at first, was he? 

[Detective Kramer:] He was not. 

[Defense counsel:] . . . [W]hen you were questioning 

him and when Detective Drake is in there with you, 

were you two being truthful with him at that time? 
11 A-2255-19

[Detective Kramer:] At which point? 

[Defense counsel:] Any part of the video. Were you 

being truthful or was everything you were saying a lie? 

[Detective Kramer:] I was being truthful. 

. . . . 

[Defense counsel:] So when Detective Drake was 

telling [Verity] that he wasn't in trouble, that was the 

truth, correct? 

[Detective Kramer:] That was not. No. 

[Defense counsel:] That was a lie? 

[Detective Kramer:] That part was, yes. 

 Gagliano testified MacFarlane's blood had 11.2 micrograms of fentanyl 

per liter and an alcohol level of 0.023 percent. He explained anything above 3.0 

micrograms per liter of fentanyl is considered fatal and the alcohol level was 

minimal. 

 Dr. DiCarlo testified he did not perform the autopsy but wrote a report 

based on the toxicology and autopsy reports. He concluded the cause of 

MacFarlane's death was acute intoxication due to the toxic effects of fentanyl 

and alcohol. The presence of fentanyl was at a high lethal level. Heroin was 

not reported, and it would have been detected in the toxicology report if 

MacFarlane had been a regular heroin user. 
12 A-2255-19

 McCurdy testified he and MacFarlane wanted to buy drugs. He called 

Verity, a co-worker of his, who had told him he could assist him if he ever 

needed to buy drugs. McCurdy told Verity they were "looking for some weed 

and some cocaine, primarily weed." Verity told McCurdy to pick him up at his 

house and he would get them drugs. After McCurdy and MacFarlane picked up 

Verity in McCurdy's vehicle they traveled to the motel. After leaving the motel, 

McCurdy snorted what he believed to be cocaine when the van reached a stop 

sign. The next thing he remembered he was waking up in the hospital. 

 Verity testified McCurdy called him asking if he could buy some heroin. 

He told McCurdy to pick him up at his home and McCurdy, MacFarlane, and 

Verity drove to the motel to pick up drugs. McCurdy and MacFarlane gave 

Verity money and they each bought two bags of heroin and Verity bought 

marijuana for himself. During cross-examination, Verity explained he paid for 

the marijuana with his money but received two "free bags" of heroin based on 

the money McCurdy and MacFarlane had given him. As they headed back 

towards Verity's home, all three men snorted the heroin. When Verity noticed 

McCurdy failed to proceed through a green light and was nodding off, he pushed 

the gas pedal with his hand and steered the vehicle to the side of the road. Not 
13 A-2255-19

wanting to get into trouble, Verity exited the van and was driven home by J.C. 

Verity's video statements to police were played for the jury. 

 Small testified he was a long-time friend of Verity. He stated Verity 

called him to purchase marijuana. He denied selling heroin or fentanyl to Verity 

and claimed Verity "pulled out two . . . white bags" while he was in Small's 

room. After Small's arrest, a search of his room yielded multiple empty blue 

wax folds and a black scale; no drugs were found. The State adduced cellphone 

records showing multiple calls from Verity to Small on the day of MacFarlane's 

death. 

The jury convicted Small on counts one, three, and five. The trial judge 

denied Small's motion for judgment notwithstanding the verdict, which argued 

the State failed to prove he knowingly and purposely distributed fentanyl. Small 

was sentenced to twenty years' imprisonment on count one and a consecutive 

five-year term on count three. Count five was merged into count one. 

Verity was convicted on counts two, five, six, and seven, and acquitted on 

count four. He was sentenced to a ten-year term on count two, a concurrent 

three-year term on count five, and three-year terms on counts six and seven, 

which were concurrent to each other but consecutive to count two. Verity 

received an aggregate sentence of thirteen years, with eight-and-one-half years 
14 A-2255-19

of parole ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2(d)(7). 

 Verity moved for a judgment of acquittal and alternatively for a new trial. 

He argued because the State failed to prove he intended to distribute fentanyl he 

could not be liable for causing MacFarlane's drug-induced death. The trial judge 

denied the motion. 

 On appeal, Verity raises the following points: 

POINT I AS DEFENDANT WAS MISLED AS TO 

THE CONSEQUENCES OF PROVIDING A 

STATEMENT, THE WAIVER OF HIS MIRANDA 

RIGHTS WAS NOT VOLUNTARILY, 

KNOWINGLY, AND INTELLIGENTLY MADE. 

POINT II THE TRIAL COURT DENIED 

DEFENDANT HIS CONFRONTATION RIGHTS 

WHEN IT ALLOWED ANOTHER EXPERT TO 

TESTIFY IN PLACE OF THE FORENSIC 

PATHOLOGIST WHO HAD PERFORMED THE 

ORIGINAL AUTOPSY WHEN THAT 

PATHOLOGIST WAS LESS THAN [SIXTY] MILES 

AWAY AND AVAILABLE TO TESTIFY. 

POINT III THE TRIAL COURT COMMITTED 

PLAIN ERROR BY PROVIDING THE JURY WITH 

CONFUSING AND FAULTY JURY CHARGES. (Not 

Raised Below). 

POINT IV THE TRIAL COURT ERRED WHEN IT 

ALLOWED A STATE WITNESS TO TESTIFY TO 

THE CONTENTS OF AN ALLEGED LETTER 
15 A-2255-19

WRITTEN BY . . . SMALL TO THE PROSECUTOR'S 

OFFICE WITHOUT PROPER AUTHENTICATION. 

POINT V THE TRIAL COURT ERRED WHEN IT 

OVERRULED DEFENDANT'S OBJECTION WHERE 

THE STATE WAS ALLOWED TO IMPROPERLY 

QUESTION HIM ABOUT THE LEGAL MEANING 

OF SHARING AND DISTRIBUTION. 

POINT VI THE TRIAL COURT'S INTERRUPTION 

OF TRIAL COUNSEL'S CLOSING REMARKS WITH 

AN ERRONEOUS INSTRUCTION TO THE JURY 

AND ITS FAILURE TO PROVIDE A TIMELY 

CURATIVE INSTRUCTION WAS PREJUDICIAL. 

POINT VII AS THE ILLOGICAL AND 

IRRATIONAL VERDICT WAS THE PRODUCT OF 

CONFUSING AND ERRONEOUS JURY 

INSTRUCTIONS, A NEW TRIAL IS REQUIRED. 

(Partially Raised Below). 

POINT VIII AS THE TRIAL COURT ITSELF 

ACKNOWLEDGED THAT DEFENDANT WAS 

SHARING THE SUPPOSED HEROIN WITH HIS 

FRIENDS, IT ERRED WHEN IT FAILED TO SUA 

SPONTE INSTRUCT THE JURY ON "SHARING." 

(Not Raised Below). 

POINT IX THE TRIAL COURT ERRED WHEN IT 

DID NOT SUA SPONTE INSTRUCT THE JURY ON 

MISTAKE OF FACT. (Not Raised Below). 

POINT X AS THE STATE FAILED TO PRESENT 

ANY EVIDENCE BEYOND A SIMPLE 

AGREEMENT TO BUY/SELL DRUGS BETWEEN 

DEFENDANTS, A JUDGMENT OF ACQUITTAL 

MUST BE ENTERED ON CONSPIRACY TO 

DISTRIBUTE CDS. (Not Raised Below). 
16 A-2255-19

POINT XI THE TRIAL COURT'S CUMULATIVE 

ERRORS DENIED DEFENDANT A FAIR TRIAL. 

(Not Raised Below). 

POINT XII THE PROSECUTOR'S EXHORTATION 

THAT THE JURY MUST CONVICT DEFENDANT 

DENIED HIM A FAIR TRIAL. (Not Raised Below). 

POINT XIII TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO ASK THE TRIAL 

COURT TO INSTRUCT THE JURY ON MISTAKE 

OF FACT. (Not Raised Below). 

POINT XIV THE SENTENCE IMPOSED WAS 

MANIFESTLY EXCESSIVE. (Partially Raised 

Below). 

Small raises the following points on his appeal: 

POINT I THE INSTRUCTION ON STRICTLIABILITY FOR DRUG-INDUCED DEATH WAS 

FATALLY FLAWED, REQUIRING REVERSAL OF 

THAT CONVICTION. (Not Raised Below). 

POINT II THE ADMISSION OF THE CODEFENDANT'S NUMEROUS PRIOR CONSISTENT 

STATEMENTS AND OTHER HEARSAY 

INCULPATING DEFENDANT WAS IMPROPER 

AND REQUIRES REVERSAL. (Partially Raised 

Below). 

POINT III INTRODUCTION OF EVIDENCE OF 

OTHER BAD ACTS AND DEFENDANT'S PRIOR 

CONVICTIONS WITHOUT ANY INSTRUCTION 

NECESSITATES REVERSAL OF DEFENDANT'S 

CONVICTIONS. (Partially Raised Below). 
17 A-2255-19

POINT IV REPEATED PROSECUTORIAL 

MISCONDUCT REQUIRES REVERSAL OF 

DEFENDANT'S CONVICTIONS. (Not Raised 

below). 

POINT V EVEN IF ANY ONE OF THE 

COMPLAINED-OF ERRORS WOULD BE 

INSUFFICIENT TO WARRANT REVERSAL, THE 

CUMULATIVE EFFECT OF THOSE ERRORS WAS 

TO DENY DEFENDANT DUE PROCESS AND A 

FAIR TRIAL. (Not Raised Below). 

POINT VI BECAUSE NO EVIDENCE WAS 

PRESENTED BEYOND A SIMPLE AGREEMENT 

TO BUY DRUGS, A JUDGMENT OF ACQUITTAL 

MUST BE ENTERED ON CONSPIRACY TO 

DISTRIBUTE DRUGS. (Not Raised Below). 

POINT VII THE TRIAL COURT MADE A NUMBER 

OF ERRORS IN FINDING AND WEIGHING 

AGGRAVATING AND MITIGATING FACTORS 

AND INAPPROPRIATELY RAN TWO COUNTS 

CONSECUTIVELY, RESULTING IN AN 

EXCESSIVE SENTENCE. 

I.

 Verity argues the judge erred in finding his Miranda rights waiver prior to 

the initial statement was voluntary, knowing, and intelligent. He asserts the 

police repeatedly told him he was not in trouble and was only going to be 

charged with possession of CDS, which negated the waiver. 

 To admit a statement obtained during a custodial interrogation "the State 

must 'prove beyond a reasonable doubt that the suspect's waiver was knowing, 
18 A-2255-19

intelligent, and voluntary in light of all the circumstances.'" State v. Tillery, 238 

N.J. 293, 316 (2019) (quoting State v. Presha, 163 N.J. 304, 313 (2000)). The 

court considers factors including the defendant's "age, education, intelligence, 

previous encounters with law enforcement, advice received about [their] 

constitutional rights, the length of detention, the period of time between 

administration of the warnings and the volunteered statement, and whether the 

questioning was repeated and prolonged in nature or involved physical or mental 

abuse." State v. Timmendequas, 161 N.J. 515, 614 (1999). 

A waiver of a defendant's Miranda rights must not be the product of police 

coercion but instead must be knowing, intelligent and voluntary based on "the 

totality of the circumstances surrounding the custodial interrogation . . . ." State 

v. A.M., 237 N.J. 384, 398 (2019). The evidence must establish beyond a 

reasonable doubt the statement was given voluntarily and not because the 

defendant's will was overborne. State v. Knight, 183 N.J. 449, 462 (2005). 

 Generally, on appellate review, a trial court's factual findings on a motion 

to suppress a defendant's statement to the police will be upheld when they are 

supported by sufficient credible evidence in the record. State v. S.S., 229 N.J. 

360, 374 (2017). We do not disturb the motion court's factual findings unless 

those findings are so clearly mistaken as to demand intervention in the interests 
19 A-2255-19

of justice. Ibid. However, we owe no deference to the motion court's 

conclusions of law, which are reviewed de novo. A.M., 237 N.J. at 396. 

 New Jersey affords interrogees additional rights beyond those guaranteed 

by the United States Constitution. State v. Diaz, 470 N.J. Super. 495, 514 (App. 

Div.), leave to appeal denied, 251 N.J. 8 (2022). Thus, for a waiver of rights to 

be knowing and intelligent, police must inform an interrogee that a criminal 

complaint has been filed or an arrest warrant issued, State v. A.G.D., 178 N.J. 

56, 68-69 (2003), and the nature and seriousness of the charges that have been 

filed. State v. Vincenty, 237 N.J. 122, 134 (2019). 

 Nonetheless, during a custodial interrogation, an officer may use trickery 

or deceit regarding the investigation without violating a defendant's right against 

self-incrimination. State v. Patton, 362 N.J. Super. 16, 29-31 (App. Div. 2003). 

Misrepresentations by police officers alone are usually insufficient to justify a 

determination of involuntariness or lack of knowledge unless the 

misrepresentation induced the confession. State v. Cooper, 151 N.J. 326, 355 

(1997). See also State v. Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011) 

(no violation where the police's use of trickery "did not result in defendant 

making a statement he would not have otherwise made voluntarily."). In State 

v. Manning, 165 N.J. Super. 19, 30-31 (App. Div. 1978), we upheld the 
20 A-2255-19

admission of a confession given after the police had lied by telling the defendant 

that a co-suspect had already confessed to the crime and implicated him. See 

also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (holding confession was 

voluntary where police lied to the defendant that his co-defendant had 

implicated him in the crime). 

 Furthermore, our Supreme Court has held police are not required to inform 

a person of his suspect status in addition to his Miranda warnings. State v. 

Nyhammer, 197 N.J. 383, 406 (2009). Rather, "the failure to be told of one's 

suspect status . . . would be only one of many factors to be considered in the 

totality of the circumstances." Id. at 407. Miranda does not require that the 

police "supply a suspect with a flow of information to help him calibrate his 

self-interest in deciding whether to speak" or to remain silent because the 

additional information "could affect only the wisdom of a Miranda waiver, not 

its essentially voluntary and knowing nature." Ibid. (quoting Colorado v. 

Spring, 479 U.S. 564, 576-77 (1987)). Therefore, a valid waiver does not 

require that the person in custody be informed of all information that could be 

useful in making the decision to remain silent or to speak. Ibid. 

 Diaz involved a prosecution for drug-induced death where the defendant 

argued his custodial statements to the police should have been suppressed 
21 A-2255-19

because the police deliberately did not inform him about the overdose death. 

470 N.J. Super. at 502. We held the police misled the defendant as to his "true 

status" when they gave a "deliberately vague and incomplete answer to his 

question as to the reason why he was taken into custody." Id. at 518. This 

"investigative stratagem" was intended to withhold information concerning the 

overdose death until after the defendant admitted that he had sold heroin to the 

decedent the day before. Ibid. "The reasonably likely if not intended effect of 

that artifice was to lead defendant—at the critical moment he waived his Fifth 

Amendment rights—to believe that he had been arrested for a less serious 

offense than strict liability homicide." Id. at 518-19. We added: 

 It is one thing for police to withhold information. 

It is another thing entirely for them to provide an

explanation that creates or reinforces a false impression 

as to the seriousness of the sentence that a defendant is 

facing. Any such deception or trickery as to the true 

reason a defendant is taken into custody . . . is an 

important circumstance to be considered as part of the 

totality of circumstances when determining whether the 

State has proved beyond a reasonable doubt that the

defendant made a knowing and voluntary waiver of the 

right against self-incrimination. 

[Id. at 519.] 

 We concluded: 

the detectives were following a deliberate investigative 

strategy to withhold information about the overdose
22 A-2255-19

death from defendant until after he admitted that he sold 

heroin to [a witness] the day before. . . . The 

interrogation strategy was designed to keep defendant 

from realizing that he faced possible prosecution for 

homicide . . . until after he had waived his right against 

self-incrimination and made incriminating admissions 

that would support a homicide prosecution. 

[Id. at 522.] 

 Recently, our Supreme Court affirmed the suppression of a defendant's 

pre-Miranda statements where he was clearly in police custody and assured he 

was not in trouble. State v. Bullock, 253 N.J. 512, 538-39 (2023). The Court 

held the Miranda rights the officer read the defendant were deficient and the 

officer undermined those rights by telling defendant he was not in trouble. Id. 

at 539. The Court noted the circumstances clearly showed "defendant was in 

some peril" because he made statements about harming others. Ibid. Therefore, 

"[t]elling defendant that he was 'not in trouble' was an affirmative 

misrepresentation[,]" which under the totality of the circumstances invalidated 

"any waiver and agreement to speak to police . . . ." Ibid. 

 At the outset, Miranda rights were read to Verity before any questioning 

occurred. And there is no assertion the Miranda rights were lacking. Moreover, 

police did not give Verity a deliberately vague and incomplete answer to a 

question of why he was taken into custody. He was under arrest because of the 
23 A-2255-19

drug paraphernalia in his residence. Nor did they withhold information about 

the fact they were investigating a drug overdose death. In fact, they corrected 

Verity's misapprehension that both McCurdy and MacFarlane had died. 

Therefore, Diaz and Bullock are distinguishable. 

 In State v. Puryear, the interrogating officer told the defendant that "[t]he 

only thing you can possibly do here is help yourself out. You cannot get yourself 

in any more trouble than you're already in. You can only help yourself out here." 

441 N.J. Super. 280, 288 (App. Div. 2015). We held the officer's comment 

neutralized the Miranda warnings that had been given and, as a result, the 

defendant's ensuing statement was held to be inadmissible. Id. at 298-99. We 

concluded the comment was not a "permissible interrogation technique." Id. at 

298. See also State in the Int. of A.S., 203 N.J. 131, 151 (2010) (improper to 

tell suspect that answering questions "would actually benefit her").

 Here, the officers did not tell Verity that he could not get himself in any 

more trouble and could only help himself if he spoke to them. The officers told 

Verity he was not in "trouble" as to the overdose death. This was true at the 

time, there is nothing in the record to indicate that at the time of the initial 

interview, Verity was under investigation for purchasing the drugs consumed by 

MacFarlane. Detective Kramer joined the interview later. Therefore, her 
24 A-2255-19

statement that police lied to defendant had no bearing on the portion of 

defendant's statement involving Detective Drake and Trooper Stambaugh. 

Verity made the most crucial inculpatory statements during his second and third 

interviews, both under Miranda, which occurred well after the initial interview. 

Therefore, Puryear is distinguishable. 

 Verity cites State v. L.H., 239 N.J. 22 (2019). There, the defendant was 

in custody on suspicion of sexual assault. Id. at 28. During the interrogation, 

the police officers repeatedly promised the defendant counseling and told him 

that he would not go to jail if he cooperated. Ibid. They also told him that "the 

truth would set him free." Ibid. The defendant eventually provided 

incriminating statements. Ibid. In affirming the suppression of the statements, 

the Court noted although officers have "leeway to tell some lies during an 

interrogation," certain lies "may have the capacity to overbear a suspect's will 

and to render a confession involuntary[,]" such as false promises of leniency. 

Id. at 44-45. Telling Verity that he was not a suspect in the overdose death did 

not have the potential to subvert his will in the manner in the manner L.H.'s will 

was subverted by the promise that he would not go to jail if he cooperated. 

The totality of the circumstances show there was a valid Miranda warning, 

an ongoing investigation, and facts that were not misrepresented by police. 
25 A-2255-19

These circumstances and the fact Verity does not on appeal challenge any of the 

other factors in Timmendequas, 161 N.J. at 614, do not convince us his will was 

overborne. For these reasons, his statements were properly admitted. 

II. 

"[P]roper jury instructions are essential to a fair trial," and "'erroneous 

instructions on material points are presumed to' possess the capacity to unfairly 

prejudice the defendant." State v. McKinney, 223 N.J. 475, 495 (2015) (quoting 

State v. Bunch, 180 N.J. 534, 541-42 (2004)). When a defendant fails to object 

to the instruction at trial, Rule 1:7-2 provides that a showing of plain error must 

be made. "[P]lain error requires demonstration of '[l]egal impropriety in the 

charge prejudicially affecting the substantial rights of the defendant sufficiently 

grievous to justify notice by the reviewing court and to convince the court that 

of itself the error possessed a clear capacity to bring about an unjust result.'" 

State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (quoting 

State v. Jordan, 147 N.J. 409, 422 (1997)). 

Where a defendant raises error in a jury instruction on appeal, the charge 

must be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). We do not 

consider just the allegedly erroneous portion. Ibid. All that is necessary is that 
26 A-2255-19

the overall instruction be accurate. State v. Thompson, 59 N.J. 396, 411 (1971); 

Borowicz v. Hood, 87 N.J. Super. 418, 423 (App. Div. 1965). 

We review inconsistencies in jury verdicts to determine whether "there 

exists a sufficient evidential basis in the record to support the charge on which 

the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). "We accept 

inconsistent verdicts in our criminal justice system, understanding that jury 

verdicts may result from lenity, compromise, or even mistake." State v. 

Goodwin, 224 N.J. 102, 116 (2016) (citing Banko, 182 N.J. at 53). Our review 

determines only "whether the evidence in the record was sufficient to support a 

conviction on any count on which the jury found the defendant guilty." Ibid. 

(quoting State v. Muhammad, 182 N.J. 551, 578 (2005)). 

Inconsistent jury verdicts are permissible so long as they remain supported 

by evidence within the record. Banko, 182 N.J. at 46. Courts should not 

speculate as to the reasons why a jury reaches a particular verdict. Id. at 54-55. 

However, where "inconsistent verdicts preclude the establishment of an element 

of the offense," such verdicts may be invalid. State v. Peterson, 181 N.J. Super. 

261, 267 (App. Div. 1981). When considering whether a verdict is 

impermissibly inconsistent, "it is appropriate to consider the evidence in the 

light most favorable to the prosecution and to determine whether a rational trier 
27 A-2255-19

of fact could have found each element of the offense beyond a reasonable 

doubt." Id. at 267-68 (citing Jackson v. Virginia, 443 U.S. 307, 317-19 (1979)). 

A.

 Small argues the trial judge erred by instructing the jury it could convict 

him and Verity for drug-induced death if they found either defendant had 

knowingly or purposely sold the fentanyl that killed MacFarlane. Verity raises 

the same argument and further asserts the faulty instruction lowered the State's 

burden of proof. 

 N.J.S.A. 2C:35-9(a) provides: 

Any person who manufactures, distributes or dispenses 

. . . any other controlled dangerous substance classified 

in Schedules I or II, or any controlled substance analog 

thereof, in violation of subsection [(a)] of N.J.S.[A.] 

2C:35-5, is strictly liable for a death which results from 

the injection, inhalation or ingestion of that substance, 

and is guilty of a crime of the first degree. 

 Our Supreme Court has explained "[n]o criminal intent to cause death is 

required to establish culpability. A defendant may be found guilty under 

N.J.S.A. 2C:35-9 even if he 'has absolutely no idea that [death] may occur.'" 

State v. Ferguson, 238 N.J. 78, 95 (2019) (alteration in original) (quoting State 

v. Maldonado, 137 N.J. 536, 547 (1994)). 

In sum, the elements required to prove a violation 

of the strict-liability drug-induced death statute are (1) 
28 A-2255-19

the defendant "distributed" a [CDS]; (2) the defendant 

did so knowingly or purposely; (3) the victim used the 

substance distributed by the defendant; and (4) the

victim died as a result of the use of the substance

distributed by the defendant, "and the death was not too 

remote in its occurrence or too dependent upon the 

conduct of another person." Model Jury Charges 

(Criminal), "Strict Liability for Drug[-]Induced Deaths 

(N.J.S.A. 2C:35-9)" (approved Sept. 1997). 

[Id. at 95-96.] 

 The trial judge instructed the jury on the drug-induced death counts, as 

follows: 

Any person who distributes any other controlled 

dangerous substance classified as Schedule I or II is 

strictly liable for a death which results from the 

injection, inhalation or ingestion of that substance, and 

is guilty of a crime. The statute, read together with the 

indictment, identifies the elements which the State must 

prove beyond a reasonable doubt to establish the guilt 

of the defendants on these counts of the indictment. 

 The elements are that, [(1)], one or both of the 

defendants distributed fentanyl, which is classified as a 

Schedule II drug, [(2)], one or both of the defendants 

acted knowingly or purposely in distributing the 

fentanyl, [(3)], . . . [MacFarlane] inhaled or ingested 

fentanyl distributed by one or both of the defendants, 

and [(4)], . . . [MacFarlane] died as a result of inhaling 

or ingesting the fentanyl distributed by one or both of 

the defendants. That is, the defendant's act of 

distributing the fentanyl caused . . . [MacFarlane's] 

death. 

[(Emphasis added).] 
29 A-2255-19

 Though trial counsel did not object to the charge, we are convinced the 

jury instruction was clearly capable of producing an unjust result because the 

repeated use of the "one or both" language meant Small could have been 

convicted based solely on the jury finding Verity guilty of the charge and vice 

versa. Therefore, the jury was deprived of a means of considering and 

articulating the individual guilt of each defendant, namely who distributed the 

fentanyl and whether they did so knowingly or purposely. The model instruction 

for drug-induced death does not provide guidance on how it should be adapted 

for a seller-to-seller co-defendant, as is the case here. Model Jury Charges 

(Criminal), "Strict Liability for Drug-Induced Deaths (N.J.S.A. 2C:35-9)" 

(approved Sept. 1997). Unfortunately, the modified charge the court improvised 

here, containing the "one or both" language, provided the jury with an erroneous 

framework for analysis. 

 We acknowledge the jury verdict sheet did not lump defendants together 

regarding the strict liability offense. Further, we do not ignore the fact the judge 

later instructed the jury as follows: 

Each offense and each defendant in this 

indictment should be considered by you separately. 

The fact that you may find a particular defendant guilty 

or not guilty of a particular crime should not control 

your verdict as to any other offense charged against that 
30 A-2255-19

defendant, and it should not control your verdict as to 

the charges against any other defendant. 

However, we are unconvinced this instruction, which came at the end of the 

instructions for other offenses in addition to the strict liability offense, reversed 

the effect of the problematic and repeated use of the "one or both" in the strict 

liability instruction. Indeed, "[g]eneral jury instructions may not always 

sufficiently impart to a jury its responsibilities and limitations." Jordan, 147 

N.J. at 428. 

Defendants are entitled to a new trial solely on this ground. For these 

reasons, defendants' convictions on the strict liability offenses are reversed. 

B.

 Small argues the conspiracy to distribute CDS conviction should be 

reversed because the evidence showed there was only an agreement to purchase 

CDS. He asserts the judge should have instructed the jury to consider whether 

he was engaged in a conspiracy or a simple buy-sell transaction. Verity raises 

a similar argument on his appeal. 

 "[A] simple agreement to buy drugs is insufficient to establish a 

conspiracy between the seller and the buyer." State v. Roldan, 314 N.J. Super. 

173, 182 (App. Div. 1998). "However, when the evidence shows that two or 

more parties have entered into an agreement to engage in concerted criminal 
31 A-2255-19

activity which goes beyond the kind of simple agreement inevitably incident to 

the sale of contraband . . . the participants may be found guilty of conspiracy." 

Id. at 182-83. "The amount of drugs involved in a transaction also may give rise 

to an inference that each of the participants had to have been aware 'he was "a 

part of a venture which extended beyond his individual participation."'" Id. at 

183 (quoting United States v. Prieskorn, 658 F.2d 631, 635 (8th Cir. 1981)). 

The activity may take the form of a "chain conspiracy[,]" which involves 

individuals in addition to the buyer and seller. Id. at 181. "Under the chain 

analysis, the government need not prove a direct connection between all the 

conspirators." Id. at 182 (quoting United States v. Tarantino, 846 F.2d 1384, 

1392 (D.C. Cir. 1988)). 

 The trial judge read the jury the following instruction regarding 

conspiracy: 

 In order for you to find defendant guilty of the 

crime of conspiracy, the State must prove beyond a 

reasonable doubt the following elements, [(1)], that the 

defendant agreed with another person or persons that 

they or one or more of them would engage in conduct

which constitutes a crime, [(2)], that the defendant's 

purpose was to promote or facilitate the commission of 

the crime of distribution of a [CDS]. 

Here, the agreement to buy drugs did not simply involve the two 

defendants. Verity sought out Small to purchase drugs not just for himself, but 
32 A-2255-19

also for MacFarlane and McCurdy. Moreover, there is evidence that Verity, in 

effect, was compensated for his services to McCurdy and MacFarlane and "[o]ff 

of what [he] charged there was extra bags" of heroin for him. The amount of 

the drugs sold, and that Verity stated he had separately purchased both heroin 

and marijuana from Small, supports the conclusion Small knew there were 

others involved in the transaction beyond Verity. Further, Small knew Verity 

had come to the motel with other individuals because Small was unhappy about 

it. The evidence established a chain conspiracy and did not support a simple 

buy-sell transaction. The conspiracy charge was accurate. 

C.

Verity claims the trial judge erred by not sua sponte charging the jury that 

it could find he was sharing the CDS with MacFarlane and McCurdy rather than 

engaging in distribution. And since distribution is an element of N.J.S.A. 2C:35-

9, Verity maintains his conviction for that offense should be reversed. Verity 

also contends the court erred by not sua sponte instructing the jury on the 

defense of mistake of fact pursuant to N.J.S.A. 2C:2-4(a) to the strict liability 

and the conspiracy charges because he believed he had purchased heroin when 

in fact the drug was fentanyl. He asserts trial counsel was ineffective for not 

requesting a curative instruction on the mistake of fact. 
33 A-2255-19

 "[I]f the parties do not request a lesser-included-offense charge, reviewing 

courts 'apply a higher standard, requiring the unrequested charge to be "clearly 

indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting 

State v. Alexander, 233 N.J. 132, 143 (2018)); see also State v. Denofa, 187 N.J. 

24, 42 (2006); N.J.S.A. 2C:1-8(e). 

The "clearly indicated" standard does not require trial 

courts either to "scour the statutes to determine if there 

are some uncharged offenses of which the defendant 

may be guilty," . . . or "to meticulously sift through the 

entire record . . . to see if some combination of facts 

and inferences might rationally sustain' a lesser 

charge" . . . . Instead, the evidence supporting a lesserincluded charge must "jump[] off the page" to trigger a 

trial court's duty to sua sponte instruct a jury on that 

charge. 

[Alexander, 233 N.J. at 143 (third and fifth alterations 

in original) (citations omitted).] 

i.

 Where "'two individuals simultaneously and jointly acquire possession of 

a drug for their own use, intending only to share it together,' they have not 

committed distribution" under N.J.S.A. 2C:35-5. State v. Morrison, 188 N.J. 2, 

18 (2006). The record does not clearly indicate Verity, MacFarlane, and 

McCurdy simultaneously and jointly acquired the CDS. At best, the record 

shows Verity acted as a middleman between Small and McCurdy and 
34 A-2255-19

MacFarlane. When McCurdy inquired about procuring the drugs, Verity said he 

could contact "his guy." He then went to Small's room, purchased the drugs 

with McCurdy and MacFarlane's money, which was separate from his own, and 

charged a commission by retaining two bags of heroin that the 

McCurdy/MacFarlane money funded. 

ii. 

 Under N.J.S.A. 2C:2-4(a), "ignorance or mistake as to a matter of fact" is 

a defense if the defendant "reasonably arrived at the conclusion underlying the 

mistake" and either the mistake "negatives the culpable mental state required to 

establish the offense," or "[t]he law provides that the state of mind established 

by such ignorance or mistake constitutes a defense." 

 In State v. Edwards, 257 N.J. Super. 1, 3-4 (App. Div. 1992), the 

defendant argued the trial judge should have sua sponte charged the jury on 

mistake of fact because she believed that she was in possession of hashish when 

it turned out the CDS was cocaine. We found no plain error because the nature 

of the CDS was not an element of the offense. Id. at 4. "In such circumstances 

the State must prove that the defendant knew that she possessed a [CDS]. It 

does not have to prove that a defendant knew precisely what [CDS] was 

possessed." Ibid. 
35 A-2255-19

 Here, heroin and fentanyl are Schedule I and II drugs. N.J.S.A. 24:21-5 

and -6. Any person who distributes a Schedule I or II drug may be held liable 

for a drug-induced death under N.J.S.A. 2C:35-9(a). Therefore, it did not matter 

whether Verity thought he had purchased heroin or fentanyl. The same is true 

for conspiracy to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-

5(b)(5) and N.J.S.A. 2C:5-2(a)(1). The trial judge did not err. 

iii.

Claims attacking trial counsel's assistance "are particularly suited for postconviction review because they often cannot reasonably be raised in a prior 

proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have 

expressed a general policy against entertaining ineffective-assistance-of-counsel 

claims on direct appeal because such claims involve allegations and evidence 

that lie outside the trial record." Ibid. 

Verity's claims of ineffective assistance of trial counsel implicate 

potential strategic decisions by counsel about whether to seek an instruction on 

mistake of fact. We cannot assess this claim on appeal because the record is not 

"adequately developed" to help us understand why counsel did not seek an 

instruction. State v. Castagna, 187 N.J. 293, 313 (2006) (citing State v. Allah, 

170 N.J. 269, 285 (2002)). Although we express no view on the merits, this 
36 A-2255-19

claim is better reserved for a petition for post-conviction relief. 

III. 

 Verity argues he is entitled to a new trial because his acquittal for thirddegree distribution of fentanyl and conviction on the first-degree causing a druginduced death are fatally inconsistent. He maintains the judge erred in not 

granting his motion for a judgment of acquittal on this basis. 

Although we have reversed Verity's strict liability conviction, we address 

this argument for the sake of completeness. In denying Verity's motion for a 

judgment notwithstanding the verdict, the judge agreed Verity "is correct that 

there is at face value a logical inconsistency with respect to the jury's verdict." 

However, the judge found there was sufficient evidence to support each charge. 

With respect to the distribution predicate of the drug-induced death count, the 

judge concluded: 

The narrative which develops herein indicates that the 

victims wanted . . . Verity to provide CDS to them, and 

[he] provided CDS to them. This evidence provides the 

inference that . . . Verity did possess CDS and intended 

to provide the victims with the CDS (a "distribution 

event"). Accordingly, construing this evidence in the 

light most favorable to the State, there was sufficient 

evidence to support a finding, beyond a reasonable 

doubt, of the factual predicate of possession (with

intent to distribute) and [the] distribution at issue. 
37 A-2255-19

 In reviewing a post-trial motion for a judgment of acquittal or a motion 

for a new trial, the motion judge may consider all the evidence presented, direct 

or circumstantial, giving the State the benefit of all the favorable evidence and 

all the favorable inferences drawn from the evidence, and then determine 

whether the jury could find guilt beyond a reasonable doubt. State v. Williams, 

218 N.J. 576, 594 (2014). A motion for a new trial based on the weight of the 

evidence may be granted in the interests of justice if the evidence "clearly and 

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

R. 3:20-1. 

We review such rulings de novo, applying the same standard as the trial 

judge to determine if a judgment of acquittal was warranted. Williams, 218 N.J. 

at 593-94; State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006). However, 

we defer to the trial court's credibility determinations and its "feel of the case." 

State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002). 

 Inconsistent verdicts are permissible so long as the evidence is sufficient 

to establish guilt on the convicted offense. Banko, 182 N.J. at 53-55. Such 

verdicts may be the result of compromise or jury nullification, which is beyond 

the power of a court to prevent. Id. at 54. Thus, "even verdicts that acquit on a 

predicate offense while convicting on the compound offense" need not 
38 A-2255-19

"necessarily be interpreted as a windfall" to the prosecution. Ibid. (quoting 

United States v. Powell, 469 U.S. 57, 65 (1984)). Each count should be treated 

as if it were a separate indictment. Id. at 53. 

 There was ample evidence presented to support the drug-induced death 

conviction. As we noted, there was testimony that: Verity purchased a Schedule 

I or Schedule II drug from Small; gave the drug to MacFarlane; and MacFarlane 

ingested the drug. Why the jury acquitted Verity on the distribution count is not 

an issue we need address because the acquittal was not fatal to the charge, which 

resulted in a conviction. State v. Grey, 147 N.J. 4, 11 (1996). 

IV. 

 Verity argues the trial judge violated his right of confrontation by 

allowing DiCarlo to testify as an expert witness instead of the pathologist who 

performed the autopsy of MacFarlane. He claims the judge erred by permitting 

testimony regarding a letter Small had sent to the prosecutor about a meeting 

with Verity without proper authentication. Further, Verity argues the 

prosecutor's repeated questioning of Verity regarding his understanding of the 

terms "sharing" and "distribution" of CDS despite the judge's admonition 

otherwise was improper. Verity asserts the judge should have stricken the entire 

line of questioning. 
39 A-2255-19

Small maintains he was denied a fair trial because the judge permitted the 

State to introduce prior consistent statements to bolster Verity's testimony that 

Small had sold him drugs even though there had been no challenge to Verity's 

testimony as fabricated. Further, the court erroneously admitted Verity's phone 

calls during Small's cross-examination. Small argues the judge improperly 

admitted prior bad act evidence and failed to give a limiting instruction when 

evidence of his prior convictions was introduced. 

 We review a trial judge's decision to admit or exclude evidence for an 

abuse of discretion. State v. Terrell, 452 N.J. Super. 226, 248 (App. Div. 2016). 

Considerable latitude is afforded the trial judge's evidentiary determinations. 

State v. Kuropchak, 221 N.J. 368, 385 (2015). The admission of expert 

testimony also rests in the sound discretion of the trial judge and will not be 

reversed absent a clear abuse of that discretion. State v. Free, 351 N.J. Super. 

203, 221 (App. Div. 2002). 

A.

 At trial, Verity objected to DiCarlo's testimony on confrontation grounds 

because the forensic pathologist who performed the autopsy was available and 

the State could have her testify. However, the prosecutor asserted the 

pathologist who prepared the report was now out of state and claimed that 
40 A-2255-19

witness was beyond the State's subpoena power. The judge ruled DiCarlo could 

testify because he had "engaged in a sufficient independent analysis of [the] 

evidence" to support his conclusions. We discern no error. 

 In State v. Roach, 219 N.J. 58, 79-80 (2014), the Court rejected a 

Confrontation Clause argument holding a co-worker of an analyst who 

performed DNA testing in the case could testify in their colleague's stead. The 

Court conditioned the testimony on whether the witness was "a truly 

independent and qualified reviewer of the underlying data and report" and did 

not "merely parrot the findings of another." Id. at 79. The testimony was 

deemed admissible because the witness explained how she used her scientific 

expertise and knowledge to independently review the DNA data generated by 

the unavailable analyst. Id. at 81, 83. 

 In State v. Bass, the Court held an assistant medical examiner could not 

testify regarding an autopsy report prepared by a fellow medical examiner who 

had died where the assistant had only reviewed the autopsy report and agreed 

with its conclusions regarding the manner of death. 224 N.J. 285, 317-18 

(2016). The Court held the State could not ask whether the examiner agreed 

with the autopsy report because this improperly "parrot[ed]" the report and 

violated the defendant's confrontation rights. Id. at 318-19. 
41 A-2255-19

 Here, Dr. DiCarlo prepared his own report based on his independent 

review of the initial autopsy report and Gagliano's toxicology report. This 

satisfied the concerns raised in Roach and Bass and the judge did not abuse his 

discretion. 

B.

 The State called a Cape May Prosecutor's Office detective who testified 

that on September 6, 2019, his office received a letter from Small dated 

September 4, 2019, in which Small stated he met with Verity on "the day in 

question." Prior to and after the testimony defendants objected based on lack of 

authentication. Small's attorney then cross-examined the witness as to how he 

knew the letter came from Small. The witness replied the letter had Small's 

name at the bottom. Small's attorney also inquired whether the letter indicated 

the time Small and Verity met. The witness said it did not. 

 Under N.J.R.E. 901, to satisfy "the requirement of authenticating or 

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

to support a finding that the item is what its proponent claims." This rule does 

not require "absolute certainty or conclusive proof." State v. Mays, 321 N.J. 

Super. 619, 628 (App. Div. 1999). Courts generally play the role of screener, 

leaving to the jury a more intense review of the evidence. Konop v. Rosen, 425 
42 A-2255-19

N.J. Super. 391, 411 (App. Div. 2012). 

 There is no indication the letter was admitted into evidence. Regardless, 

some of its contents were revealed to the jury at a point in time where it was not 

clear Small would testify because the State had not rested. However, neither the 

testimony nor the failure to authenticate the letter constituted reversible error 

because we are unconvinced the limited information revealed in this instance, 

as compared to the totality of the evidence presented, was clearly capable of an 

unjust result. 

C.

 During cross-examination, the prosecutor asked Verity whether he 

understood the difference between possession and distribution. Verity said that 

he did not, and his counsel objected on grounds the State was asking Verity legal 

questions. The judge permitted the prosecutor to rephrase the question and 

Verity answered that to "possess something it would be in your pocket," and to 

distribute something would be trying to make a profit from the pocket's contents. 

When the prosecutor asked whether handing one of his detectives a cough 

drop constituted sharing, defense counsel renewed his objection. The prosecutor 

then asked Verity whether during his interviews he had ever used the word 

sharing. Verity responded he did not use the word at that time and trial was the 
43 A-2255-19

first time he referred to sharing. When defense counsel objected, the prosecutor 

withdrew the question, and the judge told the jury to disregard the question. The 

judge denied defense counsel's request to strike the entire line of questioning. 

 The trial judge controls the scope of cross-examination. N.J.R.E. 611(b). 

We typically will not interfere with a judge's authority to control the scope of 

cross-examination unless clear error and prejudice are shown. Gaikwad, 349 

N.J. Super. at 87. 

 Verity claims this line of cross-examination denied him a fair trial because 

the judge permitted the State to ask legal questions and Verity was a fact witness. 

Although the questioning was irrelevant to Verity's role as a witness, it was not 

plain error because it did not clearly lead to an unjust result. The jury acquitted 

Verity of distribution. 

D.

 During cross-examination, Verity testified Small had been his drug 

supplier. He also said he was not sure the story he told police that, during the 

drive back from purchasing the drugs, McCurdy suddenly started "acting weird" 

was true and a replay of his interview would refresh his memory. 

The State argued because Verity's testimony had satisfied Small's right to 

confrontation, it intended to play portions of Verity's statements that implicated 
44 A-2255-19

Small, which had previously redacted Small's name. The trial judge asked 

defense counsel whether they had an objection to the State introducing the nonredacted videos and both did not. Small now challenges the admission of this 

evidence. 

Under the doctrine of invited error, alleged trial errors that were 

acquiesced in or consented to by defense counsel ordinarily are not a basis for 

reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974). 

For these reasons, we discern no reversible error on this issue. 

E.

 During Small's cross-examination, the State wanted to play a recorded 

conversation between Small and Verity that took place on September 24, 2018, 

to refresh Small's memory. Small objected because there was no evidence 

showing where the call originated. The judge permitted the State to refresh 

Small's memory and noted the conversation was already in evidence in written 

form. 

The State played the recording and the jury heard Verity ask Small if he 

had any "ice cream." Verity also said he would "take a Big Boy." Detective 

Drake had already explained these were both drug references. Small claimed 

the recordings did not refresh his recollection. 
45 A-2255-19

 Small argues this evidence was inadmissible hearsay used to improperly 

bolster the State's theory of his culpability. We are unpersuaded. 

N.J.R.E. 803(b)(5) governs the co-conspirator exception to hearsay. The 

exception permits the admission of an out of court statement where it was made 

"in furtherance of the conspiracy," was made "during the course of the 

conspiracy," and there is "evidence independent of the hearsay of the existence 

of the conspiracy and the defendant's relationship to it." State v. Savage, 172 

N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)). 

We discern no reversible error in this instance. Small was charged with 

conspiracy to distribute CDS, and the conversations in question took place 

within two weeks of MacFarlane's death and involved the purchase of drugs. 

Moreover, independent of these conversations, the State adduced other 

testimony showing the drugs were purchased on October 3, 2018, and Small's 

role in the sale and distribution.

F.

 Small argues the court improperly admitted multiple pieces of evidence 

of his prior bad acts. He asserts the evidence had no purpose because it was not 

used to impeach him. 
46 A-2255-19

 Under N.J.R.E. 404(b)(1), "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." The 

evidence is admissible for other purposes, such as "proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity or absence of mistake or 

accident. . . ." N.J.R.E. 404(b)(2). 

The party seeking to introduce the evidence must satisfy a four-prong test 

under State v. Cofield, 127 N.J. 328 (1992). A prior bad act is admissible if: 

(1) it is "relevant to a material issue"; (2) the prior act is "similar in kind and 

reasonably close in time to the offense charged"; (3) the evidence of the prior 

act is clear and convincing; and (4) its probative value is not "outweighed by its 

apparent prejudice." Id. at 338 (quoting Abraham P. Ordover, Balancing the 

Presumptions of Guilt and Innocence, 38 Emory L.J. 135, 160 (1989)).3 If the 

evidence is admissible, the trial judge must instruct the jury on the limited use 

of the evidence to "explain precisely the permitted and prohibited purposes of 

the evidence." Id. at 340-41. We afford great deference to a trial court's 

determination of the admissibility of bad act evidence and will not reverse unless 

3

 We recognize that the Supreme Court has held that the second prong of the 

Cofield formulation need not be applied in all cases. See State v. Williams, 190 

N.J. 114, 131 (2007). 
47 A-2255-19

there is an abuse of discretion or a clear error in judgment. State v. Brown, 170 

N.J. 138, 147 (2001). 

 During the State's cross-examination of Verity, it played an excerpt of 

Verity's October 22, 2018 interview in which he asked the officer, "[h]ow many 

more deaths have you guys had?" The officer replied, "there was one that night, 

but there hasn't been any since really." Verity then stated, "[r]eally good. So I 

helped take out the killer." To which the officer replied, "Yeah, yeah, you did 

a good job, man. I think." 

Small did not object to this evidence. Regardless, N.J.R.E. 404(b)(1) 

pertains to "a person's disposition." Verity's conversation with the officer did 

not constitute prior bad acts evidence because Verity neither identified Small in 

the conversation nor claimed Small was responsible for the other death. 

 Small next claims the State improperly introduced text messages sent to 

him, which indicated he had dealt drugs on other occasions. In one instance, the 

State asked Small about a reference to "hoagie" in a text sent to him. Small 

responded that the text was from a friend who was "asking [Small] for 

marijuana." Small's attorney objected but then withdrew the objection. 

Evidence that is necessary to prove the charged crime is intrinsic and not 

other crime evidence under N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 180 
48 A-2255-19

(2011). There was no question whether a drug deal between defendants took 

place on October 3, 2018. Evidence of the nature of the drugs Small sold was 

intrinsic to the conspiracy charge. For these reasons, N.J.R.E. 404(b) did not 

apply and a limiting instruction was not required. 

During Small's cross-examination, the State asked whether his mention of 

"bricks" in two of the texts was a reference to heroin or to a person. Small's 

counsel objected because he never received a copy of the message. Although 

the judge initially permitted the State to ask the question, he subsequently ruled 

it could not and instructed the jury to disregard and not consider it during 

deliberations. Therefore, this evidence was not admitted as N.J.R.E. 404(b) 

evidence or otherwise. 

Small claims prior bad acts evidence was admitted during Verity's crossexamination where Verity was asked whether the person he went to see for the 

drugs was his supplier. Verity responded he "had a couple of different 

suppliers." Again, this was not improper N.J.R.E. 404(b) evidence because 

Verity did not name Small during the exchange and there was already evidence 

admitted that Verity was Small's long-time friend and Small had sold drugs to 

Verity on the date of MacFarlane's death. 
49 A-2255-19

Small further points to the prosecutor's summation during which he stated 

defendants "had a relationship before, a drug relationship." Defendant did not 

object. Regardless, this did not violate N.J.R.E. 404(b) because there was no 

dispute Verity had purchased drugs from Small prior to October 3, 2019, because 

Small testified to that effect. The only question was the kind of drugs defendants 

believed they were buying and selling on that date. 

Small challenges the admission of a portion of Verity's second statement 

to police that Small had "up to a quarter-pound of heroin," and was a "one-stopshop" for drugs. There was no objection to this statement, and Small did not 

deny he had previously sold drugs to Verity. Additionally, Verity testified he 

sought and purchased what he believed to be heroin from Small on October 3. 

Therefore, the admission of this evidence did not constitute plain error. 

Small argues evidence was improperly adduced, without a limiting 

instruction, that he had two third-degree and one fourth-degree conviction in 

2014 and 2015, respectively, and served prison time. The evidence was elicited 

by the defense on direct examination and the convictions were sanitized. Small 

did not ask for a limiting instruction and the court did not give one. A limiting 

instruction is required when the State seeks to impeach a testifying defendant 
50 A-2255-19

through introduction of the defendant's prior convictions. State v. Brunson, 132 

N.J. 377, 391 (1993). For these reasons, we discern no reversible error. 

V.

Verity asserts the State's summation deprived him of a fair trial. He points 

us to the following passage: 

 Trials are many things for many people, ladies 

and gentlemen. It is forced responsibility. You must 

force responsibility on two men who enjoy under the

same law that I submit to you is going to convict them, 

the benefit of innocence, the same law. The same laws 

that have protected them for a year, if you follow the 

law, and that presumption today, tomorrow when you 

come back and you return verdicts that I submit to you 

should be guilty. 

Verity claims the "forced responsibility" remarks constituted prosecutorial 

misconduct because the State told the jury it was its duty to convict. 

"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. Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014) 

(quoting State v. R.B., 183 N.J. 308, 332 (2005)). "Telling jurors that their 

sworn obligation is to convict or that they would not have met their 

'responsibility' unless they convicted is disapproved." State v. Stewart, 162 N.J. 
51 A-2255-19

Super. 96, 104 (App. Div. 1978) (quoting State v. Knight, 63 N.J. 187, 193 

(1973)). 

"In deciding whether prosecutorial conduct deprived a defendant of a fair 

trial, 'an appellate court must take into account the tenor of the trial and the 

degree of responsiveness of both counsel and the court to improprieties when 

they occurred.'" State v. Williams, 244 N.J. 592, 608 (2021) (quoting State v. 

Frost, 158 N.J. 76, 83 (1999)). "In reviewing closing arguments, we look, not 

to isolated remarks, but to the summation as a whole." State v. Atwater, 400 

N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 

(1982)). 

Reversal is appropriate only where the misconduct was so egregious as to 

deprive the defendant of a fair trial. State v. Smith, 167 N.J. 158, 181 (2001). 

The question is "whether it is clear beyond a reasonable doubt that the jury 

would have returned a guilty verdict if the questioned conduct had not occurred." 

State v. Walden, 370 N.J. Super. 549, 562 (App. Div. 2004). 

 We are unconvinced the prosecutor's remarks deprived defendants of a 

fair trial. At the outset, we note although there were objections by the defense 

during the State's summation, the defense did not object to the comments now 

raised on appeal. Moreover, our review of the entirety of the summation 
52 A-2255-19

convinces us the prosecutor's remarks fell short of suggesting the jury had a duty 

to convict. The first "forced responsibility" comment was the prosecutor 

reminding the jury of the purpose of a trial. The second mention of this phrase 

reminded the jury defendants were presumed innocent, but requested they find 

defendants guilty by applying the law. Moreover, because defendants were 

accused of causing MacFarlane's drug-induced death, it was not unreasonable 

for the State to argue "responsibility" to ascribe the death to defendants' conduct 

rather than MacFarlane's illicit drug use. We are unconvinced the uncontested 

comments during summation were so egregious as to deprive defendants of a 

fair trial. 

VI. 

 Verity contends the court erred by first interrupting his attorney's 

summation and then improperly instructing the jury contrary to the final charge 

it would later give them. During his summation, Verity's attorney stated: "On 

the first charge of the verdict sheet is going to be a drug-induced death charge 

and in order for [Verity] to be charged with that, he had to distribute the drugs 

to MacFarlane and McCurdy, and he also had to . . . know . . . there was fentanyl 

in those drugs." The State objected and argued the defense mischaracterized the 

law because the State did not have to prove defendants distributed fentanyl. The 
53 A-2255-19

judge told the prosecutor "do your closing with you being able to say that . . . 

Verity would have had to have known that it was a [CDS]. Doesn't necessarily 

have to know it was fentanyl." The judge stated he would correct the general 

jury charge to reflect a correct statement of the law. The trial judge then 

instructed the jury as follows: 

I'm just going to give you a brief instruction with regard 

to the objection to [the] last comment that was made by 

[Verity's attorney], which was that essentially it's the 

State's burden to show that . . . Verity knew that the 

substance was fentanyl. And the way the law reads, and 

I'll give you more specific instruction on this tomorrow, 

is that . . . under this charge . . . a defendant must know

that the substance was a [CDS] in either Schedule I or 

Schedule II. So with that correct, I'll ask you to

disregard the last comment specific[ally] as to 

fentanyl . . . . 

 The following day, the judge informed counsel he decided because the 

indictment referred only to fentanyl "the jury charge should say fentanyl," not 

heroin or fentanyl or Schedule I or II drugs. After a colloquy, the prosecutor 

asked for a stay pending appeal of the judge's ruling.4 The judge denied the stay 

because the toxicological evidence only revealed the existence of fentanyl and 

mentioning heroin would be inconsistent with the indictment. 

4

 The State filed an emergent appeal but withdrew it after the verdict. 
54 A-2255-19

Verity's attorney then requested a "limiting" instruction regarding the trial 

judge's interruption of his summation the previous day. The judge offered to 

instruct the jury that summations do not constitute evidence. However, counsel 

withdrew the request for the instruction, telling the judge "you don't need to say 

anything else. . . . Just read them the [general] charges." 

Where a defendant fails to request a curative instruction, they "must show 

that the failure to give such an instruction sua sponte constitutes an error 'clearly 

capable of producing an unjust result.'" Mays, 321 N.J. Super. at 633 (quoting 

State v. Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)). Although Verity's 

counsel withdrew the request for a curative instruction, the instruction the judge 

proposed to give to correct his error was ultimately given when he read the jury 

the final charges before it deliberated. Indeed, the judge stated: 

Regardless of what counsel said or I may have 

said recalling the evidence in this case, it is your 

recollection of the evidence that should guide you as 

judges of the facts. Arguments, statements, remarks, 

openings and the summations or closings of counsel are 

not evidence and must not be treated as evidence. 

These instructions tracked model jury charges 1.12B and 1.12C. We 

discern no reversible error. 

VII. 
55 A-2255-19

 Both defendants argue the cumulative effect of the errors at trial 

undermined their constitutional rights to due process and a fair trial. We are 

satisfied that none of the unreversed errors alleged by defendant, individually or 

cumulatively, warrant the granting of a new trial. State v. T.J.M., 220 N.J. 220, 

238 (2015); State v. Orecchio, 16 N.J. 125, 129 (1954). 

VIII. 

Finally, we address each defendant's arguments regarding sentencing. 

Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J. 321, 

347 (2019). Therefore, we review for an abuse of discretion. State v. Jones, 

232 N.J. 308, 318 (2018). We defer to the sentencing court's factual findings 

and should not "second-guess" them. State v. Case, 220 N.J. 49, 65 (2014). 

"To facilitate meaningful appellate review, trial judges must explain how 

they arrived at a particular sentence." Id. at 65. We will reverse a sentence 

where: the findings of fact on the aggravating and mitigating factors were not 

based on competent and credible evidence in the record; the court applied the 

incorrect sentencing guidelines enunciated in the criminal code; and the 

application of the facts to the law constituted such an error of judgment as to 

shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984). 
56 A-2255-19

 Because we have reversed the drug-induced charge convictions, each 

defendant's sentence must be remanded for reconsideration. However, we 

address the sentencing arguments raised on the appeals for sake of completeness 

and to provide guidance to the sentencing judge. 

A.

 Verity's remaining sentencing argument not related to the drug-induced 

death conviction is that his sentence was excessive because the mitigating 

factors outweighed the aggravating factors. The judge found the following 

aggravating factors: the risk that defendant would commit another offense, 

N.J.S.A. 2C:44-1(a)(3); the extent and seriousness of his prior criminal record, 

N.J.S.A. 2C:44-1(a)(6); and the need to deter Verity and others, N.J.S.A. 2C:44-

1(a)(9). The judge found the following mitigating factors: Verity did not 

contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 

2C:44-1(b)(2); the victim induced or facilitated its commission, N.J.S.A. 2C:44-

1(b)(5); and Verity cooperated with law enforcement, N.J.S.A. 2C:44-1(b)(12). 

 The judge accorded each aggravating factor substantial weight, mitigating 

factor one moderate weight, and the remaining mitigating factors slight weight. 

He concluded the aggravating factors substantially outweighed the mitigating 

factors. But for the now-reversed drug-induced death conviction, we discern no 
57 A-2255-19

error in the sentence as whole. However, the sentence must now be reconsidered 

in light of the vacatur of the Verity's first-degree offense. 

B.

 Small also argues his sentence is excessive, disparate, and the trial judge 

improperly weighed the aggravating and mitigating factors. He also claims the 

judge's imposition of consecutive sentences was error. 

 The trial judge sentenced Small as a persistent offender but denied the 

State's application to sentence him to an extended term. He noted Small's 

criminal history included "[forty-three] adult arrests with . . . six indictable 

convictions." The judge found the following aggravating factors: the risk of reoffense, N.J.S.A. 2C:44-1(a)(3); the extent and seriousness of Small's prior 

criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter Small and others, 

N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. He concluded 

the aggravating factors substantially outweighed any potential mitigating 

factors. 

Given Small's criminal history, the trial judge found the ordinary 

maximum first-degree sentence of twenty years was appropriate on the druginduced death conviction. He imposed a consecutive five-year sentence on the 
58 A-2255-19

distribution of CDS conviction and merged the conspiracy conviction into the 

distribution conviction. In imposing the consecutive sentences, the judge stated: 

[W]hether a sentence for distribution should be 

consecutive or concurrent . . . would essentially ask the 

[c]ourt to find distinguishing characteristics between 

the two offenses . . . . [T]he continued conclusion of 

the [c]ourt and review of the factors reveal and the 

[c]ourt finds that they stem from the same one act. And, 

as a result of that, they are not distinct, but . . . the 

Legislature intended that the drug-induced death should 

stand on its own as it relates to distribution and viceversa. 

 The trial judge did not abuse his discretion in weighing the aggravating 

and mitigating factors. Contrary to Small's assertions the judge gave too much 

weight to his prior criminal record, his criminal history revealed he had several 

convictions that were not for minor offenses. 

 Small claims the judge failed to consider he was sixty years of age in 

assessing whether he was at risk of re-offending and the need to deter. Our 

Supreme Court has stated: "[A]ge alone cannot drive the outcome. An older 

defendant who commits a serious crime . . . cannot rely on age to avoid an 

otherwise appropriate sentence." State v. Torres, 246 N.J. 246, 273 (2021). 

Therefore, the judge's application of the aggravating factors was supported by 

the record. 
59 A-2255-19

 Small contends the judge should have applied mitigating factor N.J.S.A. 

2C:44-1(b)(2) because he did not contemplate his conduct would cause serious 

harm. Regardless of whether Small believed he was selling heroin or fentanyl, 

either drug was dangerous and could cause serious harm. We are unconvinced 

by this argument. 

 Small argues his sentence was nearly twice that of Verity's and the judge 

erred when he failed to consider the disparity. A sentence "is not erroneous 

merely because a co-defendant's sentence is lighter." State v. Roach, 146 N.J. 

208, 233 (1996) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The central 

question in assessing disparity in sentences is "whether the disparity is 

justifiable or unjustifiable." Ibid. The court must determine "whether the codefendant is identical or substantially similar to the defendant regarding all 

relevant sentencing criteria." Ibid. 

Here, the record shows Small and Verity did not stand in identical or 

substantially similar positions at sentencing. They played different roles in the 

underlying offenses: Small provided the drugs, Verity was an addict, and there 

was no evidence Verity was aware the drugs contained fentanyl. Therefore, we 

reject the sentence disparity argument. 
60 A-2255-19

In determining whether sentences should be concurrent or consecutive, 

the sentencing court must consider the following guidelines: 

(1) There should be no "free crimes" in a system where 

punishment fits the crime. 

(2) The reasons for consecutive or concurrent sentences 

should be separately given. 

(3) The court should consider the facts of the crime, 

including whether: 

 (a) the crimes and their objectives were 

independent of each other; 

 (b) the crimes involved separate acts of violence; 

 (c) the crimes were committed at separate times 

or places, rather than indicating a single period of 

aberrant behavior; 

 (d) the crimes involved multiple victims; 

 (e) the convictions are numerous. 

(4) There should be no double counting of aggravating 

factors. 

(5) Successive terms for the same offense should 

ordinarily not equal the punishment for the first 

offense. 

[Torres, 246 N.J. at 264 (citing State v. Yarbough, 100 

N.J. 627, 643-44 (1985)).] 
61 A-2255-19

 Small claims the trial judge did not conduct a Yarbough analysis and to 

the extent he did, the findings support a concurrent rather than a consecutive 

sentencing. Although we have reversed the strict liability offense, our review 

of the sentencing transcript reveals the judge appeared to believe he was 

required to impose consecutive sentences due to the nature of the first-degree 

strict liability conviction. The State acknowledges this was an error as well. 

An explicit statement for imposing consecutive sentences remains 

essential to a proper Yarbough sentencing assessment. Torres, 246 N.J. at 268. 

The judge did not perform a Yarbough analysis. Regardless, defendant's 

sentence is remanded for reconsideration given the reversal of the strict liability 

conviction.

 Affirmed in part and reversed and remanded in part for further 

proceedings in A-2255-19 and A-3381-19 with respect to the strict liability 

drug-induced death convictions and related sentencing consequences. We do 

not retain jurisdiction. 
_________________________________

SABATINO, P.J.A.D., concurring. 

I join in nearly all of the majority's well-crafted opinion. I write separately 

to express a few words of concern about the interrogation issue raised by 

defendant Verity. 

Last term the Supreme Court in State v. Bullock disapproved of police 

investigating a serious crime and assuring someone in their custody that the 

person is "not in trouble[,]" and then obtaining incriminating statements from 

that person. 253 N.J. 512, 519-20 (2023). I acknowledge the assurances the 

Court criticized in Bullock preceded the issuance of a Miranda warning, whereas 

the present case involves "not in trouble" assurances that followed a Miranda 

warning. Yet, the sequence here also presents constitutional concerns because 

the assurance has the capacity to dilute the practical impact of the warning that 

was issued. The message the detainee undoubtedly hears is that, despite the 

formal warning, it's safe to speak freely to the officers. 

The majority opinion correctly states that certain forms of trickery have 

traditionally been deemed acceptable during police interrogations. See, e.g., 

State v. Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011); State v. Patton, 

362 N.J. Super. 16, 29-31 (App. Div. 2003). However, trickery is not 

permissible if it undermines the Miranda warning itself and causes the detainee 
2 A-2255-19

to disregard or discount the warning's importance. See, e.g., Bullock, 253 N.J. 

at 538-39; State v. O.D.A.C., 250 N.J. 408, 420-21 (2022); State v. Diaz, 470 

N.J. Super. 495, 503 (App. Div.), leave to appeal denied, 251 N.J. 8 (2022); 

State v. Puryear, 441 N.J. Super. 280, 298-99 (App. Div. 2015). 

The majority reasons that the "not in trouble" assurances to Verity were 

inconsequential because the record did not reflect that the police considered 

Verity to be a suspect in MacFarlane's drug-induced death at the time the police 

interviewed him. Even if that lack of realization is true—and, for what it's 

worth, another officer testified at trial she believed her fellow officer had lied to 

Verity about him not being in trouble for the death—that does not vitiate the 

assurance's likely impact on the detainee. 

As this court recently noted in another Miranda context in the juvenile 

case of State in Interest of M.P., the pertinent legal standards are objective, and 

do not hinge upon the subjective state of mind of the interviewing police 

officers. 476 N.J. Super. 242, 290 (App. Div. 2023). We held "the critical issue 

. . . is not what police knew about M.P. and whether they could be expected to 

know about his intellectual and educational challenges. Rather, . . . the critical 

issue is whether, considering the totality of the relevant circumstances, M.P. 

knowingly, intelligently, and voluntarily waived his constitutional right against 
3 A-2255-19

self-incrimination." Ibid. This court "reject[ed] the notion that a reviewing 

court can disregard circumstances deemed relevant under the case law on the 

grounds those circumstances were not known by or 'noticeable' to police." Ibid. 

In my own view, I respectfully submit it would be a better practice for 

police officers who have detained persons and given them Miranda warnings to 

refrain from assuring them that they are "not in trouble." I recognize it is human 

nature to not unduly alarm or antagonize a person in custody that something 

adverse may occur, but the constitutional rights at stake must be carefully 

protected. 

That said, I do not dissent from the majority's disposition of the Miranda 

issue in Verity's case but recommend that future similar post-Miranda 

assurances that undermine the warning—even if made in good faith—be 

discouraged. And, if such "not in trouble" assurances are nonetheless made, 

they should be considered as negative factors within the totality of 

circumstances in evaluating whether a post-warning admission was voluntary. 

That approach is consistent with the principles expressed in Bullock and our 

judiciary's tradition of guarding with care the privilege against selfincrimination set forth in the Fifth Amendment, New Jersey common law, and 

N.J.S.A. 2A:84A-19.