SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3470-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAEEM LIVINGSTON,

Defendant-Appellant.

_________________________

Submitted February 12, 2020 – Decided

Before Judges Fuentes, Haas and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 16-02-0456.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the briefs).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

Hanley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 27, 2020
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PER CURIAM

Following a trial, a jury convicted defendant of second-degree eluding, 

N.J.S.A. 2C:29-2(b); second-degree aggravated assault while eluding, N.J.S.A. 

2C:12-1(b)(6); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and 

criminal mischief, N.J.S.A. 2C:17-3(a)(1), a disorderly persons offense. After 

granting the State's motion to impose an extended term, the trial judge sentenced 

defendant to an aggregate term of fourteen years in prison, subject to the eightyfive percent parole ineligibility provisions of the No Early Release Act, N.J.S.A. 

2C:43-7.2. This appeal followed.

On appeal, defendant's appellate counsel raises the following contentions 

on his behalf:

POINT I

THE TRIAL COURT ERRED WHEN IT PERMITTED 

A STATE'S WITNESS TO TESTIFY THAT 

DEFENDANT WAS IN THE DNA CODIS 

DATABASE AND THEN FAILED TO SUA SPONTE

PROVIDE A CURATIVE INSTRUCTION TO THE 

JURY.

POINT II

THE TRIAL [COURT] ERRED WHEN IT DENIED 

DEFENDANT'S MOTION TO SUPPRESS HIS 

ALLEGED STATEMENTS MADE TO [E.D.][1]

1

 We use initials to protect the privacy of the witnesses involved in this matter.
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POINT III

THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION FOR A CONTINUANCE 

TO ALLOW HIM TO PRESENT CERTAIN 

DEFENSE WITNESSES.

POINT IV

THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION TO ENTER A JUDGMENT 

OF ACQUITTAL NOTWITHSTANDING THE 

VERDICT ON COUNT TEN.

POINT V

THE TRIAL COURT'S CUMULATIVE ERRORS 

DENIED DEFENDANT A FAIR AND RELIABLE 

TRIAL.

POINT VI

DEFENDANT'S SENTENCE IS MANIFESTLY 

EXCESSIVE AND UNFAIR.

In addition, defendant presents the following issues in his pro se 

supplemental brief:

POINT I

DEFENDANT'S GUARANTEED UNITED STATES 

CONSTITUTIONAL RIGHTS TO 

CONFRONTATION, TO DUE PROCESS AND A 

FAIR TRIAL WERE VIOLATED BY THE 

ADMISSION INTO EVIDENCE OF HEARSAY 

STATEMENTS MADE BY SOME OF THE STATE'S 

KEY WITNESSES AT TRIAL AND FURTHER 
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FAILING TO ISSUE PROPER CAUTIONARY AND 

LIMITING INSTRUCTIONS REGARDING SUCH 

TESTIMONY.

1. [D.D.] and [E.D.]

2. [J.S.], and [V.C.]

POINT II

THE TRIAL COURT ERRONEOUSLY FAILED TO 

SANITIZE EXTRANEOUS INFLAMMATORY 

DETAILS OF OTHER-CRIME EVIDENCE.

POINT III

THE TRIAL COURT ERRONEOUSLY PERMITTED 

PREJUDICIAL TESTIMONY BY A PROSECUTION 

KEY WITNESS WHO RELATED TO THE JURY 

THAT THERE WAS NO INSURANCE COVERAGE 

FOR SIGNIFICANT DAMAGES TO A VEHICLE, IN 

VIOLATION OF DEFENDANT'S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL.

POINT IV

THE TRIAL COURT ERRONEOUSLY LIMITED 

THE EXAMINATION OF TWO WITNESSES 

DEFENSE COUNSEL SOUGHT TO RECALL, IN 

VIOLATION OF DEFENDANT'S RIGHTS TO THE 

COMPULSORY PROCESS, CONFRONTATION, 

DUE PROCESS AND A FAIR TRIAL.

POINT V

THE TRIAL COURT'S ERRONEOUS CHARGE TO 

THE JURY FAILED TO INCLUDE REQUIRED 

LIMITING INSTRUCTIONS VIOLATING 
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DEFENDANT'S RIGHT TO DUE PROCESS AND A 

FAIR TRIAL.

1. Other-crimes, wrongs, or act [sic]

2. Insurance Liability

After reviewing the record in light of these contentions, we affirm.

I.

The parties are fully familiar with the evidence presented at trial. 

Therefore, we need only recite the most salient facts related to the issues raised 

on appeal.

While driving a gray Dodge Charger through the streets of Newark on 

September 15, 2015, defendant engaged in a running gun battle with the driver 

of another car. A witness called the police and, after an officer located the 

Charger, defendant ignored the officer's signals to stop. Defendant eventually 

crashed the Charger into a garbage truck, and a school bus full of children and 

several adults. The driver of the truck suffered whiplash. The officer stopped 

to help the children, and observed defendant fleeing the scene.

The police identified defendant as the driver of the Charger by running 

the license plate number and discovering that defendant had recently received a 

traffic ticket while driving the car. The officer who pursued defendant was also 

able to identify defendant as the driver of the Charger, and defendant's DNA 
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was found on the discharged air bag of the car. In addition, defendant's friend, 

E.D., testified that defendant persuaded her to rent the Charger for him, and then 

to report it as stolen following the crash. E.D. refused to do so.

II.

We begin by addressing the arguments raised by defendant in the brief 

submitted by his appellate counsel. In Point I, defendant asserts that the trial 

judge erred by failing to give the jury a curative instruction after a detective 

briefly mentioned during direct examination that he obtained a "CODIS

[2] hit"

concerning defendant during his investigation. Defendant contends that this 

fleeting reference could have caused the jury to "speculate whether defendant's 

prior criminal history explained the reason his DNA was in a database 

maintained by the FBI." This argument lacks merit.

Immediately after the detective made this statement, the judge conducted 

a sidebar conference and instructed the prosecutor to move on to another topic 

because any discussion regarding DNA would "need a limiting instruction" to 

explain "why there was a comparison made," and "[w]hat led to the comparison,"

and the judge would need time to draft it. Significantly, the detective did not 

2

 "CODIS" is an acronym for the "Combined DNA Index System" maintained 

by the FBI.
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explain what the term CODIS meant, and there was no mention that defendant's 

DNA was in a database or that he had a criminal record. In addition, the State 

never referenced CODIS again during the five-day trial, and instead called a 

forensic DNA expert a few days later to discuss the DNA found on the airbag of 

the car. Because defendant has failed to demonstrate he was prejudiced by the 

mere passing mention of this unexplained term, we reject his contention on this 

point.

III.

In Point II, defendant argues that E.D.'s testimony should have been 

suppressed because he was unfairly surprised when the State called her as a 

witness. We disagree.

The State identified E.D. as a witness three months before the trial, and 

gave defendant's attorney a memorandum summarizing the police interview with 

her. Because defendant had three months to prepare for E.D.'s appearance at 

trial, the judge properly denied defendant's motion to exclude her testimony on 

the grounds of "unfair surprise."

Defendant also argues that the prejudicial effect of E.D.'s statements 

outweighed their probative value and improperly indicated he had committed 

prior bad acts in violation of N.J.R.E. 404(b). Again, we disagree. E.D. was a 
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fact witness, who testified she rented the Charger for defendant and he later 

asked her to report it as stolen. Her testimony did not suggest a prior bad act by 

defendant and, therefore, the factors enumerated in State v. Cofield, 127 N.J. 

328 (1991) were simply not applicable.

IV.

At the end of the State's case, defendant's attorney stated she wished to 

subpoena D.W., a witness who had testified before the grand jury. D.W. testified 

she was a passenger in the bus and believed that the man who struck them was 

"dazed and confused." Because the attorney did not know D.W.'s whereabouts, 

the judge ordered that D.W.'s grand jury testimony be read to the jury, and 

denied defendant's adjournment request.

The attorney also asked for an adjournment because she wanted to 

subpoena two detectives who had previously testified for the State. The judge 

denied this request because the attorney had the opportunity to cross-examine 

both witnesses, and had ample time to subpoena them prior to the trial.

In Point III of his brief, defendant argues that the judge should have 

granted his attorney's requests for an adjournment. We review a trial court's 

grant or denial of an adjournment under an abuse of discretion standard. State 

v. Miller, 216 N.J. 40, 47 (2013). The denial of an adjournment request "will 
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not lead to reversal unless it appears from the record that the defendant suffered 

manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (quoting 

State v. Doro, 103 N.J.L. 88, 93 (1926)).

Applying this standard, we discern no basis for disturbing the trial judge's 

denial of an adjournment. D.W.'s grand jury testimony was presented to the jury 

after it became clear no one knew where she could be located. In addition, 

defendant had the opportunity to fully question both detectives when they 

testified. Therefore, the judge properly denied defendant's adjournment 

requests.

V.

In Point IV, defendant argues that the judge erred by denying his motion 

for a judgment of acquittal on the aggravated assault charge because there was 

insufficient evidence in the record to demonstrate that the truck driver sustained 

a bodily injury after defendant crashed into the truck. However, defendant did 

not move for a judgment of acquittal on this, or any other, basis at the end of the 

State's case under Rule 3:18-1, or after the jury returned its verdict pursuant to 

Rule 3:18-2. Therefore, defendant may not raise this issue on direct appeal, and 

this omission by defense counsel does not fall under the purview of plain error 

under Rule 2:10-2 because it is not of "such a nature as to have been clearly 
10 A-3470-17T1

capable of producing an unjust result." Therefore, we reject defendant's 

contention on this point.

VI.

 In Point V, defendant argues that the cumulative prejudice of the errors he 

raises deprived him of a fair trial. Having rejected defendant's argument that 

any error occurred during the trial, we also reject his cumulative error argument.

VII.

Defendant argues in Point VI that his sentence was excessive. We 

disagree.

Trial judges have broad sentencing discretion as long as the sentence is 

based on competent credible evidence and fits within the statutory framework. 

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider 

"any relevant aggravating and mitigating factors" that "are called to the court's 

attention" and "explain how they arrived at a particular sentence." State v. Case, 

220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid 

substituting our judgment for the judgment of the trial court. Id. at 65; State v. 

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). 
11 A-3470-17T1

We are satisfied the judge made findings of fact concerning aggravating 

and mitigating factors that were based on competent and reasonably credible 

evidence in the record, and applied the correct sentencing guidelines enunciated 

in the Code, including the imposition of an extended term sentence. 

Accordingly, we discern no basis to second-guess the sentence.

VIII.

Finally, we have considered the arguments raised in defendant's 

supplemental brief, and conclude they are clearly without merit and do not 

warrant further discussion. R. 2:11-3(e)(2).

Affirmed.