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____________________________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2255

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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

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- 0291. Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant Christopher R. Small (Joseph E. Krakora, Public Defender, attorney; Tama r Y ael Lerer, of counsel and on the briefs). Andrew Robert Burroughs, Designated Counsel, argued the cause for appellant Christopher M. Verit y (Joseph E. Krakora, Public Defender, attorney; Andr ew Robert Burroughs, on the briefs). Gretchen Anderson Pickering, Senior Assistant Prosecutor, argued the cause for respondent (Jeffrey H. Sutherland, Cape May County Prosecutor, attorne y; 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 an d sentences for causing a drug-induced death and other controlled dangerous s ubstance (CDS) offenses. We affirm in part and reverse and remand in part fo r the reasons expressed in this opinion.3 A- 2255

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On October 3, 2018, J.C., a retired nurse, was dri ving north in Dennis Township when she saw a man walking from a van pa rked on the side of the road. She asked the man, whom she identified in co urt as Verity, whether he needed a ride and Verity said he did. J.C. then dr ove Verity south and dropped

him off. J.C. then drove back north on the same road and pas sed the van again and noticed a man, later identified as Jan McCurdy, slu mped over the steering wheel. She pulled over, walked to the van, and noticed McC urdy's face was discolored and had froth coming out of it. She called 9-1-1 a nd administered CPR. J.C. also noticed another man lying down with his head p artially under the driver's seat. This individual, later identified as Kevin M acFarlane, was not breathing. New Jersey State Trooper Brian McGinn arrived at th e scene and did not find any drug paraphernalia in the van. EMT John S harp arrived and unsuccessfully attempted to resuscitate MacFarlane who was later pronounced dead at the hospital. McCurdy was administered Nar can, revived, and taken to the hospital.

State Police Detective Kenneth Drake was the lead d etective. He testified he arrived at the scene shortly after MacFarlane wa s pronounced dead. After interviewing J.C., Detective Drake visited Verity's residence and noticed a4 A- 2255

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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 int erview 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 ques tioned. 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 MacFa rlane with him. Verity did not know MacFarlane. Verity stated as they dro ve 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 pr oblem and had ingested heroin that morning. Detective Drake and Trooper Stambaugh told Verity t hey did not believe him. When Detective Drake informed Verity one of t he men had survived,

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

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

Drake stated:

I don't want to have to put words in your mouth abo ut what the truth is. 'Cause the truth is . . . you'r e not telling us the truth right now because you're scare d and I understand that and a normal person would be scar ed 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 i n 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 s aw the interaction" and McCurdy was alive and told police his version of th e story, which did not align with Verity's. As the interview progressed, Detective Drake assure d Verity he and the trooper were not there "to put [Verity] in jail for some dea d 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 i n 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 re sumed, police read defendant his Miranda rights again. State Police D etective Desirae Kramer joined in the interview and showed Verity security tape from the convenience store. Verity recounted his story and stated on th e drive back from the store, McCurdy was driving but then both McCurdy and MacFa rlane 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 compli ed. Verity denied providing drugs to McCurdy and MacFarlane or seeing them use drugs. Police interviewed Verity a second time on the eve ning of October 3, 2018. Verity was read his Miranda rights and signe d 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 pic ked up to go to the

convenience store.7 A- 2255

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Verity stated McCurdy called Verity that day asking if he could obtain heroin. Verity took McCurdy's and MacFarlane's mon ey and bought them each "two wax folds" at five dollars per fold and purcha sed marijuana for himself. Verity purchased the drugs from "his guy" who, acco rding 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 sel ler's location, a motel, in a vehicle matching the one MacFarlane and McCurdy wer e later found in. The video showed Verity leaving the vehicle and then re turning. 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 bag gies 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 Mirand a 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 po int, Verity asked the officers, "[h]ow many more deaths have you guys had ?" Detective Drake replied8 A- 2255

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"[a]fter this one, there was one that night, but th ere 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 wi th 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 t han one ounce, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (counts three an d 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 pol ice. 2 Detective Drake testified at the hearing Verity never invoked his r ight to remain silent or requested an attorney. The detective testified Ver ity 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 infor mation from Verity about the incident and to gauge the level of his involvem ent because he was in the

2 At the suppression hearing, defense counsel clarifi ed he was seeking to suppress the October 3, 2018 statement.9 A- 2255

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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 Ver ity when he assured him both times that he was not in trouble. According to Detec tive Drake, it was

not until after the initial interview when he liste ned to the conversations recorded on Verity's phone that he realized Verity played a larger role. The motion judge denied Verity's suppression motio n because he found Detective Drake's testimony credible. The judge no ted police did not charge Verity until over a month after the initial intervi ew. He concluded police did not mislead Verity into a confession. Defendants were tried together. The State present ed the testimony of fourteen witnesses, including: J.C.; McCurdy; Troo per Stambaugh; Detectives Drake and Kramer; Ralph Gagliano, an expert forensi c 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 rec ounted 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-recorded10 A- 2255

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conversations were admitted into evidence, and he w as heard asking for two "whole ones" and for "diesel." Detective Drake exp lained "whole ones" meant

ten folds of heroin. Verity's defense counsel cross-examined Detective Drake regarding the assurances he gave Verity during the interview. Th e following colloquy ensued:

[Defense counsel:] When you are dealing with a defendant in police headquarters is there any polic e obligation that you be truthful to them? [Detective Drake:] Absolutely not. [Defense counsel:] When . . . Verity is looking fo r reassurances that everything was okay, is that a no rmal 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 t he investigation. On direct, she explained that during investigations, p olice lie to defendants to find out the truth. During cross-examination the follow ing 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 questioni ng 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 yo u 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 wa s 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 mic rograms of fentanyl per liter and an alcohol level of 0.023 percent. H e explained anything above 3.0 micrograms per liter of fentanyl is considered fata l and the alcohol level was

minimal. Dr. DiCarlo testified he did not perform the autop sy but wrote a report based on the toxicology and autopsy reports. He co ncluded the cause of

MacFarlane's death was acute intoxication due to th e toxic effects of fentanyl and alcohol. The presence of fentanyl was at a hig h lethal level. Heroin was not reported, and it would have been detected in th e toxicology report if MacFarlane had been a regular heroin user.12 A- 2255

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McCurdy testified he and MacFarlane wanted to buy drugs. He called Verity, a co-worker of his, who had told him he cou ld 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 McC urdy to pick him up at his house and he would get them drugs. After McCurdy an d MacFarlane picked up Verity in McCurdy's vehicle they traveled to the mo tel. 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 u p in the hospital. Verity testified McCurdy called him asking if he c ould buy some heroin. He told McCurdy to pick him up at his home and McCu rdy, MacFarlane, and Verity drove to the motel to pick up drugs. McCurd y and MacFarlane gave Verity money and they each bought two bags of heroi n and Verity bought marijuana for himself. During cross-examination, V erity 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 he roin. 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. Not13 A- 2255

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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 Verit y. He stated Verity called him to purchase marijuana. He denied sellin g 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 y ielded multiple empty blue wax folds and a black scale; no drugs were found. The Stat e adduced cellphone records showing multiple calls from Verity to Small on the da y 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 purposel y distributed fentanyl. Small was sentenced to twenty years' imprisonment on coun t one and a consecutive five-year term on count three. Count five was merg ed 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, w ith eight-and- one -half years14 A- 2255

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of parole ineligibility subject to the No Early Rel ease Act, N.J.S.A. 2C:43- 7.2(d)(7). Verity moved for a judgment of acquittal and alterna tively for a new trial. He argued because the State failed to prove he inten ded to distribute fentanyl he could not be liable for causing MacFarlane's drug-i nduced 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 Ra ised Below).

POINT IV THE TRIAL COURT ERRED WHEN IT ALLOWED A STATE WITNESS TO TESTIFY TO THE CONTENTS OF AN ALLEGED LETTER15 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 WA S 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 TH E 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 Mirand a rights waiver prior to the initial statement was voluntary, knowing, and i ntelligent. He asserts the police repeatedly told him he was not in trouble an d was only going to be charged with possession of CDS, which negated the w aiver. To admit a statement obtained during a custodial i nterrogation "the State must 'prove beyond a reasonable doubt that the susp ect's waiver was knowing,18 A- 2255

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intelligent, and voluntary in light of all the circ umstances.'" 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 re ceived about [their] constitutional rights, the length of detention, the period of time betwee n 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 b e the product of police coercion but instead must be knowing, intelligent a nd voluntary based on "the totality of the circumstances surrounding the custo dial interrogation . . . ." State v. A.M., 237 N.J. 384, 398 (2019). The evidence mu st establish beyond a reasonable doubt the statement was given voluntaril y and not because the defendant's will was overborne. State v. Knight, 1 83 N.J. 449, 462 (2005). Generally, on appellate review, a trial court's fact ual findings on a motion to suppress a defendant's statement to the police w ill be upheld when they are supported by sufficient credible evidence in the re cord. State v. S.S., 229 N.J. 360, 374 (2017). We do not disturb the motion cour t's factual findings unless those findings are so clearly mistaken as to demand intervention in the interests19 A- 2255

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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 b eyond 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 i nterrogee that a criminal complaint has been filed or an arrest warrant issue d, 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 viola ting 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 usu ally insufficient to justify a

determination of involuntariness or lack of knowled ge 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 "d id 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. 19 78), we upheld the20 A- 2255

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admission of a confession given after the police ha d lied by telling the defendant that a co-suspect had already confessed to the crim e and implicated him. See also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (hol ding confession was voluntary where police lied to the defendant that h is 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 M iranda warnings. State v. Nyhammer, 197 N.J. 383, 406 (2009). Rather, "the f ailure to be told of one's suspect status . . . would be only one of many fact ors to be considered in the totality of the circumstances." Id. at 407. Miran da 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 r emain silent because the additional information "could affect only the wisdo m of a Miranda waiver, not its essentially voluntary and knowing nature." Ibi d. (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 a ll information that could be useful in making the decision to remain silent or t o speak. Ibid. Diaz involved a prosecution for drug-induced death where the defendant argued his custodial statements to the police shoul d have been suppressed21 A- 2255

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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 in complete answer to his question as to the reason why he was taken into cus tody." Id. at 518. This "investigative stratagem" was intended to withhold information concerning the

overdose death until after the defendant admitted t hat 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 ser ious offense than strict liability homicide." Id. at 51 8-19. 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 impr ession as to the seriousness of the sentence that a defend ant is facing. Any such deception or trickery as to the t rue reason a defendant is taken into custody . . . is a n 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 th e right against self-incrimination. [Id. at 519.]

We concluded:

the detectives were following a deliberate investigative strategy to withhold information about the overdose22 A- 2255

- 19 death from defendant until after he admitted that h e sold heroin to [a witness] the day before. . . . The interrogation strategy was designed to keep defenda nt from realizing that he faced possible prosecution f or homicide . . . until after he had waived his right against self-incrimination and made incriminating admission s that would support a homicide prosecution. [Id. at 522.] Recently, our Supreme Court affirmed the suppressi on of a defendant's pre-Miranda statements where he was clearly in poli ce 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 defend ant were deficient and the officer undermined those rights by telling defendan t 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 harmin g others. Ibid. Therefore, "[t]elling defendant that he was 'not in trouble' w as an affirmative misrepresentation[,]" which under the totality of t he 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 ri ghts 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 the23 A- 2255

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drug paraphernalia in his residence. Nor did they withhold information about the fact they were investigating a drug overdose de ath. In fact, they corrected Verity's misapprehension that both McCurdy and MacF arlane had died. Therefore, Diaz and Bullock are distinguishable. In State v. Puryear, the interrogating officer tol d the defendant that "[t]he only thing you can possibly do here is help yoursel f out. You cannot get yourself in any more trouble than you're already in. You ca n 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 give n and, as a result, the defendant's ensuing statement was held to be inadmi ssible. Id. at 298-99. We concluded the comment was not a "permissible interr ogation 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 actual ly benefit her "). Here, the officers did not tell Verity that he cou ld not get himself in any more trouble and could only help himself if he spok e to them. The officers told Verity he was not in "trouble" as to the overdose d eath. This was true at the time, there is nothing in the record to indicate th at at the time of the initial interview, Verity was under investigation for purch asing the drugs consumed by MacFarlane. Detective Kramer joined the interview later. Therefore, her24 A- 2255

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statement that police lied to defendant had no bear ing 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). T here, the defendant was in custody on suspicion of sexual assault. Id. at 28. During the interrogation, the police officers repeatedly promised the defenda nt counseling and told him that he would not go to jail if he cooperated. Ibi d. 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 t ell 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 sus pect in the overdose death did not have the potential to subvert his will in the m anner in the manner L.H.'s will was subverted by the promise that he would not go t o jail if he cooperated. The totality of the circumstances show there was a valid Miranda warning, an ongoing investigation, and facts that were not m isrepresented by police.25 A- 2255

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These circumstances and the fact Verity does not on appeal challenge any of the other factors in Timmendequas, 161 N.J. at 614, do n ot 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' po ssess 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 i mpropriety in the charge prejudicially affecting the substantial righ ts of the defendant sufficiently grievous to justify notice by the reviewing court a nd to convince the court that of itself the error possessed a clear capacity to b ring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (second alterat ion in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Where a defendant raises error in a jury instructio n 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. Ibi d. All that is necessary is that26 A- 2255

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the overall instruction be accurate. State v. Thom pson, 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 deter mine 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 syste m, understanding that jury verdicts may result from lenity, compromise, or eve n 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 pa rticular 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 whethe r a verdict is impermissibly inconsistent, "it is appropriate to c onsider the evidence in the

li ght most favorable to the prosecution and to determ ine whether a rational trier27 A- 2255

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of fact could have found each element of the offens e 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 in struction lowered the State's burden of proof. N.J.S.A. 2C:35-9(a) provides:

Any person who manufactures, distributes or dispens es . . . any other controlled dangerous substance classifi ed in Schedules I or II, or any controlled substance a nalog th ereof, in violation of subsection [(a)] of N.J.S.[A .] 2C:35-5, is strictly liable for a death which resul ts from the injection, inhalation or ingestion of that subs tance, and is guilty of a crime of the first degree. Our Supreme Court has explained "[n]o criminal int ent 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) (alterati on 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 defend ant 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 no t too remote in its occurrence or too dependent upon the conduct of another person." Model Jury Charges (Criminal), "Strict Liability for Drug[-]Induced De aths (N.J.S.A. 2C:35-9)" (approved Sept. 1997). [Id. at 95-96.] The trial judge instructed the jury on the drug-in duced 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 substanc e, and is guilty of a crime. The statute, read together w ith the indictment, identifies the elements which the State must prove beyond a reasonable doubt to establish the gu ilt 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 defenda nts acted knowingly or purposely in distributing the fentanyl, [(3)], . . . [MacFarlane] inhaled or inge sted fentanyl distributed by one or both of the defendan ts , and [(4)], . . . [MacFarlane] died as a result of i nhaling or ingesting the fentanyl distributed by one or bot h of the defendants. That is, the defendant's act of distributing the fentanyl caused . . . [MacFarlane' s] death. [(Emphasis added).]29 A- 2255

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Though trial counsel did not object to the charge, we are convinced the jury instruction was clearly capable of producing a n unjust result because the repeated use of the "one or both" language meant Sm all could have been convicted based solely on the jury finding Verity g uilty 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 purpo sely. 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 J ury Charges (Criminal), "Strict Liability for Drug-Induced Deat hs (N.J.S.A. 2C:35-9)" (approved Sept. 1997). Unfortunately, the modified charge the court improvised here, containing the "one or both" language, provid ed 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, w e 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 guil ty or not guilty of a particular crime should not cont rol your verdict as to any other offense charged agains t that30 A- 2255

- 19 defendant, and it should not control your verdict a s 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 t he "one or both" in the strict liability instruction. Indeed, "[g]eneral jury ins tructions 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 th is ground. For these reasons, defendants' convictions on the strict liab ility offenses are reversed.

B. Small argues the conspiracy to distribute CDS conv iction should be reversed because the evidence showed there was only an agreement to purchase CDS. He asserts the judge should have instructed t he 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." Stat e v. Roldan, 314 N.J. Super. 173, 182 (App. Div. 1998). "However, when the evid ence shows that two or more parties have entered into an agreement to enga ge in concerted criminal31 A- 2255

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activity which goes beyond the kind of simple agree ment inevitably incident to the sale of contraband . . . the participants may b e 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 t o have been aware 'he was "a part of a venture which extended beyond his individ ual participation."'" Id. at 183 (quoting United States v. Prieskorn, 658 F.2d 6 31, 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 co nnection between all the conspirators." Id. at 182 (qu oting United States v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir. 1988)). The trial judge read the jury the following instru ction 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)], tha t the defendant agreed with another person or persons tha t they or one or more of them would engage in conduct which constitutes a crime, [(2)], that the defendan t'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 inv olve the two defendants. Verity sought out Small to purchase dr ugs not just for himself, but32 A- 2255

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also for MacFarlane and McCurdy. Moreover, there i s 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 heroi n for him. The amount of the drugs sold, and that Verity stated he had separ ately purchased both heroin and marijuana from Small, supports the conclusion S mall knew there were others involved in the transaction beyond Verity. Further, Small knew Verity

had come to the motel with other individuals becaus e Small was unhappy about it. The evidence established a chain conspiracy an d did not support a simple buy -sell transaction. The conspiracy charge was accur ate. C. Verity claims the trial judge erred by not sua spon te charging the jury that it could find he was sharing the CDS with MacFarlane and McCurdy rather than engaging in distribution. And since distribution i s 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 ins tructing 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 h ad purchased heroin when in fact the drug was fentanyl. He asserts trial co unsel was ineffective for not requesting a curative instruction on the mistake of fact.33 A- 2255

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"[I]f the parties do not request a lesser-included -offense charge, reviewing courts 'apply a higher standard, requiring the unre quested 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 t rial courts either to "scour the statutes to determine i f there are some uncharged offenses of which the defendant may be guilty," . . . or "to meticulously sift thro ugh the entire record . . . to see if some combination of f acts and inferences might rationally sustain' a lesser charge" . . . . Instead, the evidence supporting a lesse rincluded charge must "jump[] off the page" to trigg er a trial court's duty to sua sponte instruct a jury on that charge. [Alexander, 233 N.J. at 143 (third and fifth altera tions in original) (citations omitted).]

i. Where "'two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share i t together,' they have not

committed distribution" under N.J.S.A. 2C:35-5. St ate v. Morrison, 188 N.J. 2, 18 (2006). The record does not clearly indicate Ve rity, MacFarlane, and McCurdy simultaneously and jointly acquired the CDS . At best, the record shows Verity acted as a middleman between Small and McCurdy and34 A- 2255

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MacFarlane. When McCurdy inquired about procuring the drugs, Verity said he could contact "his guy." He then went to Small's r oom, purchased the drugs with McCurdy and MacFarlane's money, which was sepa rate from his own, and charged a commission by retaining two bags of heroi n 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 t he conclusion underlying the mistake" and either the mistake "negatives the culp able 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 sp onte 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 pla in 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 s he possessed a [CDS]. It does not have to prove that a defendant knew precis ely what [CDS] was possessed." Ibid.35 A- 2255

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Here, heroin and fentanyl are Schedule I and II dr ugs. 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 f entanyl. 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 pa rticularly suited for postconviction review because they often cannot reasona bly be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have expressed a general policy against entertaining ine ffective-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 whet her to seek an instruction on mistake of fact. We cannot assess this claim on appe al because the record is no t "adequately developed" to help us understand why co unsel 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, this36 A- 2255

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claim is better reserved for a petition for post-co nviction relief.

III. Verity argues he is entitled to a new trial becaus e his acquittal for thirddegree distribution of fentanyl and conviction on t he first-degree causing a druginduced death are fatally inconsistent. He maintai ns 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 den ying Verity's motion for a judgment notwithstanding the verdict, the judge agr eed 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 evide nce to support each charge. With respect to the distribution predicate of the d rug-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 "distributio n event"). Accordingly, construing this evidence in the light most favorable to the State, there was suffic ient evidence to support a finding, beyond a reasonable doubt, of the factual predicate of possession (with intent to distribute) and [the] distribution at iss ue.37 A- 2255

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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 evide nce presented, direct or circumstantial, giving the State the benefit of all the favorable evidence and

all the favorable inferences drawn from the evidenc e, and then determine whether the jury could find guilt beyond a reasonab le 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 deni al of justice under the law."

R. 3:20 -1. We review such rulings de novo, applying the same s tandard as the trial judge to determine if a judgment of acquittal was w arranted. 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 determina tions and its "feel of the case." State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. D iv. 2002). Inconsistent verdicts are permissible so long as t he 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 nu llification, 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 not38 A- 2255

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"necessarily be interpreted as a windfall" to the p rosecution. 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 Ma cFarlane; and MacFarlane ingested the drug. Why the jury acquitted Verity o n the distribution count is no t 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 o f confrontation by allowing DiCarlo to testify as an expert witness in stead 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 regardi ng his understanding of the terms "sharing" and "distribution" of CDS despite t he judge's admonition otherwise was improper. Verity asserts the judge s hould have stricken the entire

line of questioning.39 A- 2255

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Small maintains he was denied a fair trial because the judge permitted the State to introduce prior consistent statements to b olster 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 errone ously admitted Verity's phone calls during Small's cross-examination. Small argu es 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 exc lude evidence for an abuse of discretion. State v. Terrell, 452 N.J. Su per. 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 o n confrontation grounds because the forensic pathologist who performed the autopsy was available and the State could have her testify. However, the pro secutor asserted the pathologist who prepared the report was now out of state and claimed that40 A- 2255

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witness was beyond the State's subpoena power. The judge ruled DiCarlo could testify because he had "engaged in a sufficient ind ependent analysis of [the] evidence" to support his conclusions. We discern n o error. In State v. Roach, 219 N.J. 58, 79-80 (2014), the Court rejected a Confrontation Clause argument holding a co-worker o f an analyst who performed DNA testing in the case could testify in their colleague's stead. The Court conditioned the testimony on whether the witn ess was "a truly independent and qualified reviewer of the underlyin g data and report" and did not "merely parrot the findings of another." Id. a t 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 medi cal examiner could not testify regarding an autopsy report prepared by a f ellow 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 whe ther the examiner agreed with the autopsy report because this improperly "pa rrot[ed]" the report and violated the defendant's confrontation rights. Id. at 318-19.41 A- 2255

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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 de tective who testified that on September 6, 2019, his office received a le tter from Small dated September 4, 2019, in which Small stated he met wit h Verity on "the day in question." Prior to and after the testimony defendan ts objected based on lack of authentication. Small's attorney then cross-examin ed the witness as to how he knew the letter came from Small. The witness repli ed 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 prop onent 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, 42542 A- 2255

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

There is no indication the letter was admitted int o evidence. Regardless, some of its contents were revealed to the jury at a point in ti me where it was not clear Small would testify because the State had not rested. However, neither the testimony nor the failure to authenticate the lette r constituted reversible error

because we are unconvinced the limited information revealed in this instance, as compared to the totality of the evidence present ed, was clearly capable of an unjust result.

C. During cross-examination, the prosecutor asked Ver ity whether he understood the difference between possession and di stribution. 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 r ephrase 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 prof it from the pocket's contents. When the prosecutor asked whether handing one of his detectives a cough drop constituted sharing, defense counsel renewed h is 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 the43 A- 2255

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first time he referred to sharing. When defense coun sel 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 th e entire line of questioning. The trial judge controls the scope of cross-examin ation. N.J.R.E. 611(b). We typically will not interfere with a judge's auth ority 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 denie d him a fair trial because the judge permitted the State to ask legal question s 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 resu lt. The jury acquitted Verity of distribution.

D. During cross-examination, Verity testified Small h ad been his drug supplier. He also said he was not sure the story h e told police that, during the drive back from purchasing the drugs, McCurdy sudde nly started "acting weird " was true and a replay of his interview would refres h his memory. The State argued because Verity's testimony had sat isfied Small's right to confrontation, it intended to play portions of Verity's sta tements that implicated44 A- 2255

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Small, which had previously redacted Small's name. The trial judge asked defense counsel whether they had an objection to th e State introducing the nonredacted videos and both did not. Small now challe nges the admission of this

evidence. Under the doctrine of invited error, alleged trial errors that were acquiesced in or consented to by defense counsel or dinarily 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 o n this issue.

E. During Small's cross-examination, the State wanted to play a recorded conversation between Small and Verity that took pla ce on September 24, 2018, to refresh Small's memory. Small objected because there was no evidence showing where the call originated. T he judge permitted the State to refresh Small's memory and noted the conversation was alrea dy in evidence in written

form. The State played the recording and the jury heard V erity ask Small if he had any "ice cream." Verity also said he would "ta ke a Big Boy." Detective Drake had already explained these were both drug re ferences. Small claimed the recordings did not refresh his recollection.45 A- 2255

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Small argues this evidence was inadmissible hearsa y 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 excep tion to hearsay. The exception permits the admission of an out of court statement where it was made "in furtherance of the conspiracy," was made "durin g 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. S mall 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 S tate adduced other testimony showing the drugs were purchased on Octob er 3, 2018, and Small's

role in the sale and distributio n. F. Small argues the court improperly admitted multipl e 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

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Under N.J.R.E. 404(b)(1), "evidence of other crime s, wrongs, or acts is

no t admissible to prove a person's disposition in ord er 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 a bsence 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 pri or bad act is admissible if: (1) it is "relevant to a material issue"; (2) the p rior 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 instru ct 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 def erence to a trial court's determination of the admissibility of bad act evide nce and will not reverse unless

3 We recognize that the Supreme Court has held that t he second prong of the Cofield formulation need not be applied in all case s. See State v. Williams, 190 N.J. 114, 131 (2007).47 A- 2255

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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 of ficer, "[h]ow many more deaths have you guys had?" The officer replie d, "there was one that night, but there hasn't been any since really." Verity th en 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 con versation with the officer did not constitute prior bad acts evidence because Verity neit her 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 oc casions. 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 wit hdrew the objection. Evidence that is necessary to prove the charged cri me is intrinsic and not other crime evidence under N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 18048 A- 2255

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(2011). There was no question whether a drug deal between defendants took place on October 3, 2018. Evidence of the nature o f the drugs Small sold was intrinsic to the conspiracy charge. For these reas ons, N.J.R.E. 404(b) did not apply and a limiting instruction was not required. During Small's cross-examination, the State asked wh ether his mention of

"bricks" in two of the texts was a reference to her oin or to a person. Small's counsel objected because he never received a copy o f 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 a nd not consider it during deliberations. Therefore, this evidence was not ad mitted as N.J.R.E. 404(b)

evidence or otherwise. Small claims prior bad acts evidence was admitted d uring Verity's crossexamination where Verity was asked whether the pers on 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 t here was already evidence admitted that Verity was Small's long-time friend a nd Small had sold drugs to Verity on the date of MacFarlane's death.49 A- 2255

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Small further points to the prosecutor's summation d uring which he stated defendants "had a relationship before, a drug relat ionship." Defendant did not object. Regardless, this did not violate N.J.R.E. 404(b) because there was n o 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 Veri ty's second statement to police that Small had "up to a quarter-pound of heroin," a nd was a "one- stop

shop" for drugs. There was no objection to this st atement, and Small did not deny he had previously sold drugs to Verity. Addit ionally, 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 c onstitute plain error. Small argues evidence was improperly adduced, witho ut a limiting instruction, that he had two third-degree and one f ourth-degree conviction in 2014 and 2015, respectively, and served prison time. The e vidence was elicited by the defense on direct examination and the convic tions were sanitized. Small did not ask for a limiting instruction and the cour t did not give one. A limiting instruction is required when the State seeks to imp each a testifying defendant50 A- 2255

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through introduction of the defendant's prior convic tions. State v. Brunson, 132 N.J. 377, 391 (1993). For these reasons, we discer n no reversible error.

V. Verity asserts the State's summation deprived him o f 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 m ust force responsibility on two men who enjoy under the same law that I submit to you is going to convict t hem, the benefit of innocence, the same law. The same l aws 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 c onstituted prosecutorial misconduct because the State told the jury it was i ts duty to convict. "Prosecutors are afforded considerable leeway in cl osing arguments as long as their comments are reasonably related to th e scope of the evidence presented." State v. Patterson, 435 N.J. Super. 49 8, 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 n ot have met their 'responsibility' unless they convicted is disapprov ed." State v. Stewart, 162 N.J.51 A- 2255

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Super. 96, 104 (App. Div. 1978) (quoting State v. K night, 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 t he tenor of the trial and the degree of responsiveness of both counsel and the co urt 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 clos ing arguments, we look, not to isolated remarks, but to the summation as a whol e." State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Cart er , 91 N.J. 86, 105 (1982)). Reversal is appropriate only where the misconduct was so egr egious as to deprive the defendant of a fair trial. State v. Sm ith, 167 N.J. 158, 181 (2001). The question is "whether it is clear beyond a reaso nable doubt that the jury would have returned a guilty verdict if the questio ned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div . 2004). We are unconvinced the prosecutor's remarks depriv ed 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 o bject to the comments now raised on appeal. Moreover, our review of the enti rety of the summation52 A- 2255

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convinces us the prosecutor's remarks fell short of suggesting the jury had a duty to convict. The first "forced responsibility" comm ent 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, b ecause 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 d eprive defendants of a

fair trial.

VI. Verity contends the court erred by first interrupt ing his attorney's summation and then improperly instructing the jury contrary to the final charge it would later give them. During his summation, Ve rity's attorney stated: "On the first charge of the verdict sheet is going to b e 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 defenda nts distributed fentanyl. The53 A- 2255

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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 l aw. 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 tom orrow, 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 d ecided because the indictment referred only to fentanyl "the jury char ge should say fentanyl," not heroin or fentanyl or Schedule I or II drugs. Afte r a colloquy, the prosecutor asked for a stay pending appeal of the judge's ruli ng. 4 The judge denied the stay because the toxicological evidence only revealed th e existence of fentanyl and mentioning heroin would be inconsistent with the in dictment.

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

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Verity's attorney then requested a "limiting" instr uction 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 judg e "you don't need to say anything else. . . . Just read them the [general] charges." Where a defendant fails to request a curative instr uction, they "must show that the failure to give such an instruction sua sp onte 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 instruct ion, the instruction the judge proposed to give to correct his error was ultimatel y given when he read the jury the final charges before it deliberated. Indeed, t he judge stated:

Regardless of what counsel said or I may have said recalling the evidence in this case, it is you r recollection of the evidence that should guide you as judges of the facts. Arguments, statements, remark s, 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

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Both defendants argue the cumulative effect of the errors at trial undermined their constitutional rights to due proce ss and a fair trial. We are satisfied that none of the unreversed errors allege d 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 (19 54).

VIII. Finally, we address each defendant's arguments rega rding sentencing. Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J. 321, 347 (2019). Therefore, we review for an abuse of d iscretion. State v. Jones , 232 N.J. 308, 318 (2018). We defer to the sentencing c ourt's factual findings and should not "second-guess" them. State v. Case, 220 N.J. 49, 65 (2014). "To facilitate meaningful appellate review, trial j udges 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 rec ord; the court applied the incorrect sentencing guidelines enunciated in the c riminal code; and the application of the facts to the law constituted suc h an error of judgment as to shock the judicial conscience. State v. Roth, 95 N .J. 334, 363-65 (1984).56 A- 2255

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Because we have reversed the drug-induced charge c onvictions, each

defendant's sentence must be remanded for reconside ration. However, we address the sentencing arguments raised on the appe als 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 ju dge 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 Verit y 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 threate n serious harm, N.J.S.A. 2C:44-1(b)(2); the victim induced or facilitated it s 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 substan tial weight, mitigating factor one moderate weight, and the remaining mitig ating factors slight weight. He concluded the aggravating factors substantially outweighed the mitigating factors. But for the now-reversed drug-induced deat h conviction, we discern no57 A- 2255

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error in the sentence as whole. However, the sente nce must now be reconsidered in light of the vacatur of the Verity's first-degre e offense.

B. Small also argues his sentence is excessive, dispa rate, and the trial judge improperly weighed the aggravating and mitigating f actors. He also claims the judge's imposition of consecutive sentences was err or. The trial judge sentenced Small as a persistent of fender but denied the State's application to sentence him to an extended term. He noted Small's criminal history included "[forty-three] adult arre sts with . . . six indictable convictions." The judge found the following aggrav ating factors: the risk of reoffense, N.J.S.A. 2C:44-1(a)(3); the extent and ser iousness of Small's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to d eter Small and others, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigat ing factors. He concluded the aggravating factors substantially outweighed an y potential mitigating

factors. Given Small's criminal history, the trial judge fou nd the ordinary maximum first-degree sentence of twenty years was a ppropriate on the druginduced death conviction. He imposed a consecutive five-year sentence on the58 A- 2255

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distribution of CDS conviction and merged the consp iracy conviction into the distribution conviction. In imposing the consecuti ve 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 betw een the two offenses . . . . [T]he continued conclusio n of the [c]ourt and review of the factors reveal and th e [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 sh ould stand on its own as it relates to distribution and viceversa. The trial judge did not abuse his discretion in we ighing the aggravating and mitigating factors. Contrary to Small's assert ions the judge gave too much weight to his prior criminal record, his criminal h istory revealed he had several

convictions that were not for minor offenses. Small claims the judge failed to consider he was s ixty years of age in assessing whether he was at risk of re-offending an d the need to deter. Our Supreme Court has stated: "[A]ge alone cannot driv e 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 aggravati ng factors was supported by

the record.59 A- 2255

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Small contends the judge should have applied mitig ating factor N.J.S.A. 2C:44-1(b)(2) because he did not contemplate his co nduct would cause serious harm. Regardless of whether Small believed he was selling heroin or fentanyl, either drug was dangerous and could cause serious h arm. 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. 39 0, 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 sta nd in identical or substantially similar positions at sentencing. The y played different roles in the underlying offenses: Small provided the drugs, Ver ity was an addict, and there was no evidence Verity was aware the drugs containe d fentanyl. Therefore, we reject the sentence disparity argument.60 A- 2255

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In determining whether sentences should be concurre nt or consecutive, the sentencing court must consider the following gu idelines:

(1) There should be no "free crimes" in a system wh ere punishment fits the crime. (2) The reasons for consecutive or concurrent sente nces should be separately given. (3) The court should consider the facts of the crim e, 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 o f aberrant behavior; (d) the crimes involved multiple victims; (e) the convictions are numerous. (4) There should be no double counting of aggravati ng 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

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Small claims the trial judge did not conduct a Yar bough analysis and to the extent he did, the findings support a concurren t rather than a consecutive sentencing. Although we have reversed the strict l iability offense, our review of the sentencing transcript reveals the judge appe ared to believe he was required to impose consecutive sentences due to the nature of the first-degree strict liability conviction. The State acknowledge s this was an error as well. An explicit statement for imposing consecutive sent ences remains essential to a proper Yarbough sentencing assessmen t. Torres, 246 N.J. at 268. The judge did not perform a Yarbough analysis. Reg ardless, defendant's sentence is remanded for reconsideration given the rev ersal of the strict liability

convicti on. 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 sentenci ng 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 interro gation issue raised by defendant Verity. Last term the Supreme Court in State v. Bullock dis approved of police investigating a serious crime and assuring someone in their custody that the person is "not in trouble[,]" and then obtaining in criminating statements from that person. 253 N.J. 512, 519-20 (2023). I ackno wledge the assurances the Court criticized in Bullock preceded the issuance o f a Mira nda warning, whereas the present case involves "not in trouble" assuranc es that followed a Miranda warning. Yet, the sequence here also presents cons titutional concerns because the assurance has the capacity to dilute the practi cal impact of the warning that was issued. The message the detainee undoubtedly h ears is that, despite the formal warning, it's safe to speak freely to the of ficers. 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). Howeve r, trickery is not permissible if it undermines the Miranda warning it self and causes the detainee2 A- 2255

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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); Sta te v. Diaz, 470 N.J. Super. 495, 503 (App. Div.), leave to appeal d enied, 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" assu rances to Verity were inconsequential because the record did not reflect that the police considered Verity to be a suspect in MacFarlane's drug- induc ed 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 belie ved 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 con text in the juvenile case of State in Interest of M.P., the pertinent le gal standards are objective, and do not hinge upon the subjective state of mind of t he 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 whethe r they could be expected to

know about his intellectual and educational challen ges. Rather, . . . the critical issue is whether, considering the totality of the r elevant circumstances, M.P. knowingly, intelligently, and voluntarily waived his constitutional right against3 A- 2255

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self-incrimination." Ibid. This court "reject[ed] the notion that a reviewing court can disregard circumstances deemed relevant u nder the case law on the grounds those circumstances were not known by or 'not iceable' 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 tr ouble." I recognize it is human nature to not unduly alarm or antagonize a person i n 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 dis position of the Miranda issue in Verity's case but recommend that future si milar post-Miranda assurances that undermine the warning

— even if made in good faith

— be discouraged. And, if such "not in trouble" assuran ces are nonetheless made, they should be considered as negative factors withi n the totality of circumstances in evaluating whether a post-warning admission was voluntary. That approach is consistent with the principles exp ressed in Bullock and our judiciary's tradition of guarding with care the pri vilege against selfincrimination set forth in the Fifth Amendment, New Jersey common law, and

N.J.S.A. 2A:84A-19.