RECORD IMPOUNDED 

 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2846-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

TERRANCE V. NOKES, a/k/a 

TERRANCE VAN NOKES, 

KASUAN TART, KASUAN B. 

TART, TERRACE V. NOKES, 

TERANCE NOKES, TROY Q. 

NOKES, TYRON NOKES, 

TYRON Q. NOKES, and TERRY 

NOKES, 

 Defendant-Appellant. 

___________________________

Argued October 25, 2023 – Decided May 10, 2024 

Before Judges Vernoia and Gummer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 19-02-

0125.

Samuel Clark Carrigan, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E.

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

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

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2846-21

Krakora, Public Defender, attorney; Samuel Clark 

Carrigan, of counsel and on the briefs). 

Michael C. Mellon, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Christine A. Hoffman, Acting 

Gloucester County Prosecutor, attorney; Michael C. 

Mellon, on the brief). 

PER CURIAM 

 Defendant Terrance V. Nokes appeals from his convictions for possession 

of a controlled dangerous substance (CDS), possession of CDS with the intent 

to distribute, criminal restraint, and endangering the welfare of a child and from 

the resulting aggregate twenty-four-year prison sentence. He argues the trial 

court erred in permitting the State's witnesses to give improper opinion 

testimony related to the CDS charges, in giving the jury incorrect instructions 

on the criminal-restraint and endangering charges, and in imposing sentence. 

We affirm the convictions but vacate the sentence and remand for a 

resentencing. 

I.

At approximately 2:00 a.m. on December 16, 2018, defendant arrived at 

the two-story townhome he shared with his fiancée, N.S.-G. (Nancy), and her 
3 A-2846-21

nine-year-old son, D.S.G. (Declan).1 Defendant's "yelling" and knocking on the 

door initially woke Declan up, but he went back to sleep. While they were in 

the front part of the house and Declan was in the back part, defendant and Nancy 

began to argue. According to Declan, when he woke up, he saw defendant and 

Nancy "fist fight[ing]." Declan told defendant to leave, but he didn't. 

 Nancy hit defendant because she wanted him to leave. Defendant became 

more enraged. Nancy ran upstairs. She called 9-1-1. Defendant came after her, 

grabbed her by the neck, and held her. She tried to "elbow" him, but he was 

"big" and she was "weak" and felt there was "nothing [she] could do." She told 

him to get out; he told her she could not leave until the police arrived. He was 

"using his arm to restrain [her] from moving," placing his arm around her neck. 

Nancy couldn't move, was "losing air," and was "starting to . . . fade." Declan 

witnessed defendant "choking" his mother. He started "tussling" with defendant 

and "pushed his arm back to give [Nancy] some air" because she "was starting 

to . . . cough and stuff." Nancy was able to "get up to go." She ran down the 

steps. Defendant ran after her and fell. 

1

 Due to the nature and underlying facts of defendant's convictions, we use 

initials and fictitious names when referencing the victims. See R. 1:38-3(c)(12). 
4 A-2846-21

 Patrolmen Shawn Gambale and Bill Rosati entered the house through the 

front door, which Nancy had opened earlier. Officer Collin Crawford arrived 

later. Rosati saw defendant "lunging towards the victim." Gambale believed 

defendant was attempting to "dive on top of" Nancy. He kicked defendant, 

tackled him to the ground, struck him with his knee, advised him he was under 

arrest, and handcuffed him with Rosati while Crawford escorted Nancy and 

Declan to another part of the house. Crawford noticed Nancy had a bleeding 

"fat lip," a torn shirt, and "red marks" on her neck. 

 Gambale searched defendant's pants pockets and "found a plastic bag 

which was full of what appeared to be crack-cocaine and regular cocaine." He 

also found empty bags in the same pocket. Defendant denied owning the drugs 

and told Nancy to flush them. Gambale called for an ambulance. Nancy refused 

medical attention. Rosati accompanied defendant to the hospital. 

 In 2019, a grand jury returned an indictment charging defendant with 

third-degree aggravated assault, strangulation of a domestic-violence victim, 

N.J.S.A. 2C:12-1(b)(13); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); 

third-degree terroristic threats, N.J.S.A. 2C:12-3(b); two counts of third-degree 

possession of CDS, N.J.S.A. 2C:35-10(a); second-degree possession of CDS 

with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree resisting arrest by 
5 A-2846-21

force, N.J.S.A. 2C:29-2(a)(3)(a); third-degree endangering the welfare of a child 

by knowingly causing harm that would make the child an abused or neglected 

child, N.J.S.A. 2C:24-4(a)(2); and second-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(1). Another grand jury returned a second indictment charging 

defendant with third-degree witness tampering, N.J.S.A. 2C:28-5(a). 

 Defendant was tried before a jury in 2020. The State called as witnesses 

Nancy, Declan, the officers who responded to the 9-1-1 call, two expert 

witnesses, a witness concerning the 9-1-1 call, and a witness concerning calls 

between defendant and Nancy while he was in jail. A recording of Nancy's 

9-1-1 call was played for the jury. In addition to hearing her report that her 

"boyfriend" had come "in drunk and we just started fighting" and that he was 

following her and she could not separate herself from him, the jury heard Nancy 

say, "Stop yelling at him" and "I can't move" and tell someone repeatedly to "get 

off of [her]." A child's voice could be heard, repeatedly saying, "stop." 

 Gambale testified he had attended "quite a number of schools," including 

"drug-related schools." According to Gambale, he was "familiar with various 

types of illegal drugs." Gambale was shown and testified about the plastic bag 

he had found in defendant's pocket. 

[Assistant Prosecutor (AP):] Did you find anything of 

evidential value pursuant to your search? 
6 A-2846-21

[Gambale:] I found a plastic bag which was full of what 

appeared to be crack-cocaine and regular cocaine. 

. . . . 

[AP:] What is S-15 [the bag found in defendant's 

pocket]? 

[Gambale:] It appears to be cocaine and -- well, 

without opening the other one, I -- I imagine it's the 

crack-cocaine. But I can't see through the other bag. 

. . . . 

[AP:] So, Officer, I saw that you opened S-15, which 

is a bag. And out of S-15 came two smaller bags. What 

are those two smaller bags? 

[Gambale:] Okay. This bag marked with the case 

number and Number 1 at the end of it is orange -- small 

orange plastic bags. And what's contained inside of 

each one is suspected crack-cocaine. Usually, an off 

colored drug. Pure cocaine is often what they call

stepped-on or mixed with other things to make it crackcocaine. 

[AP:] And, Officer, what is the other smaller bag that 

came out of S-15?

[Gambale:] These are bags of what appears to be pure 

cocaine or possibly pure cocaine, close to pure. It's a 

whiter substance and it's not a rock like. It's more of a 

powder substance. 

[AP:] How do you recognize what's in S-15?
7 A-2846-21

[Gambale:] Okay. So I've been a police officer for 

twelve years. I've gone to multiple drug schools and 

been a part of hundreds of drug arrests. 

Defense counsel did not object to those questions or to the admission of S-15

and its contents into evidence. 

 Gambale also testified about the empty bags he had found in defendant's 

pants pocket, describing them as "empty bags of what are usually used to carry 

crack-cocaine." When asked how he was able to recognize those items, Gambale 

explained, "From my experience, once again, of being part of hundreds of drug 

arrests, several drug schools. I'm just able to easily identify that, along with it 

was seized at the same time as I seized the other drugs." Defense counsel again 

did not object to those questions or to the admission of the bags into evidence. 

 Mandelle Hunter, a forensic scientist employed by the New Jersey State 

Police in the drug unit, was qualified without objection as an expert in the field 

of testing and analysis of CDS. When asked what evidence she had handled 

with respect to this case, Hunter responded, "It looks like it was two items. One 

item contained twenty-three bags of purported cocaine and one bag containing 

a total of five bags of purported cocaine." Hunter testified she had tested the 

contents of three of the twenty-three bags contained in the first item she 

described and the contents of all the bags in the second item. Each of the tested 
8 A-2846-21

bags contained cocaine, weighing a total of 14.38 grams. She did not test the 

contents of the remaining bags of the first item, which contained eight grams of 

powder having the same appearance as the powder contained in the tested bags, 

because the additional eight grams was not legally significant. 

 The State also called as an expert witness Harry Castaner, who was 

employed by the county prosecutor's office as a detective and had been assigned 

for several years to "the gangs, guns and narcotics task force." He previously 

had worked for the Drug Enforcement Administration, the Federal Bureau of 

Investigation, and the Federal Bureau of Alcohol, Tobacco, and Firearms. He 

spent fourteen years of his twenty-three-year law-enforcement career employed 

in the narcotics field. He worked part of that time as an undercover agent selling 

and buying drugs. He had been involved in over 500 narcotics-related 

investigations. He had had training in the amount of CDS a person might have 

for personal use and for distribution to other people. With no objection, he was 

admitted as an expert in the field of narcotics paraphernalia and narcotics 

distribution. 

 Castaner testified about how cocaine is packaged for street-level 

distribution and about the significance of baggies in the use and distribution of 

illegal drugs. He explained drug dealers typically possess empty and unused 
9 A-2846-21

baggies whereas drug users would possess torn and broken bags containing drug 

residue. The court sustained an objection to a question posed by the assistant 

prosecutor about the potential sales and profits a dealer would receive if he sold 

the amount of cocaine found in defendant's possession. In a colloquy outside 

the presence of the jury, the assistant prosecutor queried if he could ask Castaner 

a dealer's potential sales and profits obtained by selling cocaine by the gram. 

Defense counsel objected to "get[ting] into specifics that in any way related to 

this case." He conceded, however, Castaner could "testify as to the methods of 

packaging, the methods of sales, prices, which he's done." The court explained: 

Certainly, the expert cannot opine as to the ultimate 

issues that should be before the jury to determine 

whether the State has met its burden. It's up to them to 

decide those issues. However, he certainly can lend 

certain information to the jury that they may not be 

aware of, such as the cost of the packaging or the cost 

of the drug itself per package, methods of packaging, 

types of packaging, types of sales, things that he has 

observed. But he cannot state that the -- your 

hypothetical just cannot make him give an opinion as to 

anything that would be one of the elements of the 

offense, which would be the ultimate determination to 

determine whether the evidence is bore out. 

. . . . 

And as I said, the packaging and the amount normally 

for personal use, [he] certainly can testify as to those 

issues . . . . 
10 A-2846-21

 The assistant prosecutor asked Castaner without objection the per gram 

cost of cocaine in December 2018. He also asked, without objection, whether 

"in [his] experience the presence of cocaine without anything to ingest it with" 

told him anything. Castaner responded, "[t]he presence of cocaine by itself and 

strictly no implements tells me that the person is dealing drugs as opposed to 

ingesting drugs." The assistant prosecutor also asked Castaner without 

objection whether the presence or absence of a digital scale or baggies would 

impact his opinion. 

 On cross-examination, Castaner testified he had seen drug users tear a bag 

open and "snort it right up" without using an implement. He also testified that 

people who use drugs sometimes support their habit by selling drugs and possess 

drugs they intend to sell and drugs they intend to use. He described the 

differences between cocaine and crack cocaine. 

[Defense counsel:] And what is the difference between 

powdered cocaine and crack cocaine? 

[Castaner:] One is cooked up and one is not. And the 

means of ingestion is also different as well. 

[Defense counsel:] Do they look the same or do they 

look different? 

[Castaner:] They look different. One is broken down 

into a powdered form and one is a hard, rocklike 

substance. 
11 A-2846-21

[Defense counsel:] So the crack cocaine would be the 

hard, rocklike substance? 

[Castaner:] Yes. 

[Defense counsel:] Okay. And how about the powder? 

[Castaner:] The powder would be a fine powder, best 

definition for a lay person is sugar in order for you to 

understand it. 

[Defense counsel:] Meaning it looks somewhat like 

sugar? 

[Castaner:] It -- no, it looks like a fine powder. 

 Defendant did not call any witnesses in his defense. He moved to dismiss 

certain charges. The court granted that motion in part, dismissing the thirddegree terroristic-threats charge and one of the third-degree possession of CDS 

charges. 

 During the on-the-record charge conference, defense counsel did not 

object to any proposed instructions regarding the criminal-restraint or childendangerment charges. On the criminal-restraint charge, the court instructed the 

jury "a person is guilty of criminal restraint if he restrains another unlawfully in 

circumstances exposing the other to risk of serious bodily injury" and that "the 

State must prove beyond a reasonable doubt[: (1)] that defendant knowingly 

restrained [Nancy]; [(2)] that defendant knew the restraint was unlawful; and 
12 A-2846-21

[(3)] that the restraint was under circumstances in which the defendant 

knowingly exposed [Nancy] to the risk of serious bodily injury." As to the 

second element, the court defined the term "unlawful" as meaning "to 

accomplish the restraint by force, threat, or deception." Regarding the element 

of knowledge, the court instructed the jury: 

With regard to all three of these elements, the State 

must prove beyond a reasonable doubt the defendant 

acted knowingly. A person acts knowingly with respect 

to the nature of his conduct or the attendant 

circumstances if he is aware that his conduct is of that 

nature, or that such circumstances exist, or he is aware 

of a high probability of their existence. A person acts 

knowingly with respect to a result of his conduct if he 

is aware that it is practically certain that his conduct 

will cause such a result. Knowing, with knowledge or 

equivalent terms have the same meaning. 

And as I’ve already told you knowledge is a condition 

of the mind which cannot be seen and can only be 

determined by inferences from conduct, words or acts. 

A state of mind is rarely susceptible to direct proof but 

must ordinarily be inferred from the facts. Therefore, 

it is not necessary that the State produce witnesses to 

testify that an accused said he had a certain state of 

mind when he engaged in a particular act. It is within 

your power to find that such proof has been furnished 

beyond a reasonable doubt by inference which may 

arise from the nature of his of acts and his conduct, and 

from all that he said and did at the particular time and 

place, and from all of the surrounding circumstances 

reflected in the testimony, and the evidence adduced at 

trial. 
13 A-2846-21

On the child-endangerment charge, the court instructed the jury a person 

is guilty of endangering the welfare of a child if he or she "causes the child harm 

that would make the child an abused and neglected child." The court also 

instructed the jury: 

the State must prove beyond a reasonable doubt: 

number one, that [Declan] was a child. Number two,

the defendant knowingly caused [Declan] harm that 

would make the child abused or neglected. And number 

three, the defendant knew that such conduct would 

cause the child harm that would make [him] an abused 

and neglected child. 

The court explained the second element could: 

include performing any indecent, immoral or unlawful 

act or deed in the presence of the child that may tend to 

debauch or endanger or degrade the morals of the child. 

. . . . 

Cruelty to a child shall consist of any of the 

following acts, including inflicting upon the child

unnecessary suffering or pain either mental or physical, 

any willful act or admission or commission whereby 

unnecessary pain or suffering, whether mental or 

physical is caused or permitted to be inflicted on a 

child, or exposing the child to unnecessary hardship, 

fatigue, mental or physical strain that may tend to injure 

the health or physical or moral well-being of such child. 

 Near the beginning of the charge, the court instructed the jury about its 

role: 
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Now, let’s talk about the function of the jury. As I 

instructed you when we started this case, I explained to 

you that you are the judges of the facts and, as judges 

of the facts, you are to determine the credibility of the 

various witnesses, as well as the weight to be attached 

to their testimony. You and you alone are the sole and 

exclusive judges of the evidence, of the credibility of 

the witnesses and the weight to be attached to the 

testimony of each witness. 

 The court also instructed the jury about the expert witnesses: 

Let’s talk about expert testimony. As a general rule 

witnesses can testify only as to facts known by them. 

This rule ordinarily does not permit the opinion of a 

witness to be received as evidence. However, an 

exception to this rule exists in the case of an expert 

witness who may give his or her opinion as to any 

matter in which he or she is versed which is material to 

the case. In legal terminology, an expert witness is a 

witness who has some special knowledge, skill, 

experience or training that is not possessed by the

ordinary juror that may be able to provide assistance to 

the jury in understanding the evidence presented and 

determining the facts in this case. 

In this case, Mandelle Hunter was called as an expert in 

testing and analysis of controlled dangerous 

substances. And Detective Harry Castner was called as 

an expert in drug paraphernalia, and distribution of 

controlled dangerous substances. 

You are not bound by such expert’s opinion, but you

should consider each opinion and give it the weight to 

which you deem it is entitled, whether that be great or 

slight, or you may reject it. In examining each opinion, 

you may consider the reasons given for it, if any, and 
15 A-2846-21

you may also consider the qualifications and credibility 

of the expert. 

It is always within the special function of the jury to 

determine whether the facts on which the answer or 

testimony of an expert is based actually exist. The 

value or weight of the opinion of the expert is 

dependent upon, and is no stronger than, the facts on 

which it is based. In other words, the probative value 

of the opinion will depend upon whether from all of the 

evidence in the case, you find that those facts are true. 

You may, in fact, determine from the evidence in the 

case that the facts that form the basis of the opinion are 

true, are not true, or are true in part only, and, in light 

of such findings, you should decide what affect such 

determination has upon the weight to be given to the 

opinion of the expert. Your acceptance or rejection of 

the expert opinion will depend, therefore, to some 

extent on your findings as to the truth of the facts relied 

upon. 

The ultimate determination of whether or not the State 

has proven defendant’s guilt beyond a reasonable doubt 

is to be made only by the jury. 

 The jury acquitted defendant of the resisting-arrest, witness-tampering, 

and assault charges. It convicted him of criminal restraint, possession of CDS, 

possession of between half an ounce and five ounces of CDS with the intent to 

distribute, and endangering the welfare of a child. 

At the sentencing hearing, the court found aggravating factors three (risk 

defendant will commit another offense), six (extent and seriousness of 

defendant's criminal history), nine (need to deter defendants and others), eleven 
16 A-2846-21

(a fine without imposition of a prison sentence may be seen as a cost of doing 

business), and fourteen (the offense involved an act of domestic violence 

committed in the presence of a child). N.J.S.A. 2C:44-1(a)(3), (6), (9), (11), and 

(14). The court found no mitigating factors. The court granted the State's 

motion to sentence defendant to an extended term pursuant to 

N.J.S.A. 2C:43-6. The court found consecutive sentences were appropriate 

because the convictions were separate from each other and "to protect society 

from those who are unwilling to live a productive life and who resort to criminal 

activity in the furtherance of their anti-social lifestyle." 

 On the possession of CDS with the intent to distribute, the court sentenced 

defendant to a sixteen-year term of imprisonment. It merged the possession of 

CDS conviction with the conviction for possession of CDS with the intent to 

distribute. The court sentenced defendant to four-year terms of imprisonment 

on the criminal-restraint and endangering convictions, with each sentence to run 

consecutive to the sentence for the conviction for possession of CDS with the 

intent to distribute. Thus, defendant received an aggregate prison term of 

twenty-four years. 

 Defendant raises the following issues on appeal: 

 
17 A-2846-21

POINT I 

IMPROPER EXPERT OPINION TESTIMONY 

ON THE ULTIMATE ISSUE AND EXPERT 

OPINION TESTIMONY FROM AN 

UNQUALIFIED WITNESS PREJUDICED 

DEFENDANT’S RIGHT TO A FAIR TRIAL. 

(Not raised below) 

A. The Drug Expert Improperly Opined On The 

Ultimate Issue: That The Drugs Were For 

Distribution, Not Personal Use. 

B. The Lay Officer Improperly Offered Expert 

Opinions Without Being Appropriately Qualified 

And Testified On The Ultimate Issue. 

POINT II 

THE COURT ERRED IN FAILING TO TELL 

THE JURY THAT AN HONEST BELIEF IN 

THE LAWFULNESS OF THE USE OF FORCE 

PRECLUDED A GUILTY VERDICT FOR 

CRIMINAL RESTRAINT. (Not raised below) 

POINT III 

THE FAILURE TO INSTRUCT THE JURY ON 

THE SPECIFIC BASES FOR THE CHILD 

ENDANGERMENT CHARGE AND THAT 

THEY HAD TO UNANIMOUSLY AGREE ON 

THE OPERATIVE CONDUCT REQUIRES 

REVERSAL OF DEFENDANT’S

CONVICTION. (Not raised below) 

 
18 A-2846-21

POINT IV 

THE 24-YEAR AGGREGATE SENTENCE IS 

EXCESSIVE AND SHOULD BE VACATED 

AND REMANDED BECAUSE OF THE 

IMPROPER ANALYSIS OF AGGRAVATING 

FACTORS, THE CONSIDERATION OF 

ACQUITTED CONDUCT, AND AN 

INCOMPLETE [STATE V.] YARBOUGH[, 100 

N.J. 627 (1985),] ANALYSIS. 

II. 

Because defendant did not object or otherwise raise before the trial court 

the evidential or jury-charge issues he now raises on appeal, we review his 

arguments on those issues under the plain-error standard of Rule 2:10-2. See 

State v. Macchia, 253 N.J. 232, 250 (2023) (finding we review jury instructions 

challenged for the first time on appeal "for plain error"); State v. Singh, 245 N.J. 

1, 13 (2021) (finding "[w]hen a defendant does not object to an alleged error at 

trial, such error is reviewed under the plain error standard"). "Under that 

standard, an unchallenged error constitutes plain error if it was 'clearly capable 

of producing an unjust result.'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting

R. 2:10-2). "The possibility of an unjust result must be 'sufficient to raise a 

reasonable doubt as to whether the error led the jury to a result it otherwise might 

not have reached.'" Ibid. (quoting State v. Melvin, 65 N.J. 1, 18-19 (1974)). 

"The error must be evaluated 'in light of the overall strength of the State's case'" 
19 A-2846-21

to determine whether it rises to the level of plain error. State v. Sanchez-Medina, 

231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)). 

A.

We "defer to a trial court's evidentiary ruling absent an abuse of 

discretion." State v. Garcia, 245 N.J. 412, 430 (2021). We "will not substitute 

our judgment unless the evidentiary ruling is 'so wide of the mark' that it 

constitutes 'a clear error in judgment.'" Ibid. (quoting State v. Medina, 242 N.J. 

397, 412 (2020)). That standard applies equally to rulings about expert 

testimony. See State v. Cotto, 471 N.J. Super. 489, 531 (App. Div. 2022) ("Even 

if objected to, '[t]he admission or exclusion of expert testimony is committed to 

the sound discretion of the trial court.'" (quoting Townsend v. Pierre, 221 N.J. 

36, 52 (2015))). When an appealing party fails to object to an evidentiary ruling 

at trial, we review it under the plain-error standard. Singh, 245 N.J. at 13. 

"[T]he failure to object to testimony permits an inference that any error in 

admitting the testimony was not prejudicial." Cotto, 471 N.J. Super. at 537. We 

review an evidentiary decision de novo if the trial court applied the wrong legal 

standard in admitting or excluding the evidence. State v. Trinidad, 241 N.J. 425, 

448 (2020). Not "[e]very mistaken evidentiary ruling" requires "the reversal of 
20 A-2846-21

a conviction. Only those that have the clear capacity to cause an unjust result" 

will lead us to reverse. Garcia, 245 N.J. at 430. 

1.

Defendant complains about one of Castaner's answers. Defendant 

contends Castaner gave an improper "ultimate-issue opinion" when, after he was 

asked without objection whether "in [his] experience the presence of cocaine 

without anything to ingest it with" told him anything, he responded: "The 

presence of cocaine by itself . . . [with] no implements tells me that the person 

is dealing drugs as opposed to ingesting drugs." 

In State v. Cain, 224 N.J. 410, 413 (2016), the Court recognized the 

important role expert testimony can play in a drug-distribution case: "Expert 

testimony in many drug-distribution cases provides necessary insight into 

matters that are not commonly understood by the average juror, such as the 

significance of drug packaging and weight, scales and cutting agents, stash sites, 

the role of confederates, and other activities consistent with drug trafficking." 

The Court explained: 

The average juror is not knowledgeable about the 

arcana of drug-distribution schemes. Law enforcement 

officers with extensive training, education, and 

experience of the drug world have "specialized 

knowledge [that] will assist the trier of fact to 

understand the evidence or to determine a fact in issue." 
21 A-2846-21

N.J.R.E. 702. Experts can help jurors understand the 

indicia of a distribution operation, such as how drug 

traffickers package and process drugs for distribution. 

See [State v.] Odom, 116 N.J. [65,] 73-75 [(1989)]. 

Experts can shed light on the significance of the 

quantities and concentrations of drugs, the value of 

drugs, the use of identifiable logos on drug packaging, 

and the function of drug paraphernalia, e.g., scales, 

baggies, and cutting agents. 

[Id. at 426.] 

The Court, however, cautioned: 

Equally clear is that an expert should not express an 

opinion on matters that fall within the ken of the 

average juror or offer an opinion about the defendant's 

guilt. [State v. Nesbitt, 185 N.J. 504,] 512-14 [(2006)]. 

. . . The jury brings a breadth of collective experience, 

knowledge, and wisdom to the task. Expert testimony 

is not necessary to explain to jurors the obvious. It is 

not a substitute for jurors performing their traditional 

function of sorting through all of the evidence and using 

their common sense to make simple logical deductions. 

 [Id. at 426-27.] 

The Court concluded, "[g]oing forward, in drug cases, an expert witness may 

not opine on the defendant's state of mind. Whether a defendant possessed a 

controlled dangerous substance with the intent to distribute is an ultimate issue 

of fact to be decided by the jury." Id. at 429. The Court also stated its belief 

that "hypothetical questions should be used only when necessary in drug cases." 

Ibid. The Court, however, expressly held "[q]uestions can incorporate the 
22 A-2846-21

evidence of record, such as the quantity of drugs, packaging materials, scales, 

and money discovered, and the expert can render an opinion on their significance 

in a drug-distribution operation." Ibid. 

 We conclude the court did not err in the admission of that one answer by 

Castaner. It was not testimony given in response to a "lengthy hypothetical 

question" that "included [an] assumed fact that . . . . was not based on an actual 

fact," State v. Simms, 224 N.J. 393, 396 (2016), or a "classic mid-trial 

summation," Cain, 224 N.J. at 431. It also was not an answer to "a question 

within the understanding of the average juror." State v. Covil, 240 N.J. 448, 466 

(2020). Rather, it was a response to a question about a subject matter well within 

his narcotics-paraphernalia field of expertise and permissibly "shed light on the 

significance of . . . drug paraphernalia." Cain, 224 N.J. at 426. Castaner also 

did not expressly opine defendant possessed cocaine with the intent to distribute 

it and did not attribute to defendant "any state of mind that was an element of 

the charged offenses." State v. Hyman, 451 N.J. Super. 429, 452 (App. Div.

2017). 

 Even if the admission of his answer was an error, it did not rise to the level 

of plain error, considering as we must the testimony and evidence as a whole 

and not in isolation. In addition to the answer to the question about which 
23 A-2846-21

defendant complains, Castaner testified he had seen users ingest drugs without 

using an implement and that drug users sometimes support their habit by selling 

drugs and, consequently, possess drugs they intend to use and drugs they intend 

to sell. Defendant's CDS convictions were otherwise supported by testimony 

and evidence regarding the packaging and amount of cocaine recovered. And 

the court gave the jury appropriate instructions regarding the jury's role as the 

ultimate factfinder and the ability of the jury to accept or reject any expert 

opinion. See State v. Derry, 250 N.J. 611, 634 (2022) (referencing importance 

of jury instructions that "convey[] to the jury its absolute prerogative to reject 

both the expert's opinion and the version of the facts consistent with that 

opinion" (quoting State v. Torres, 183 N.J. 554, 580 (2005))). Under all those 

circumstances, Castaner's testimony was not "clearly capable of producing an 

unjust result," R. 2:10-2, and, thus, its admission was not plain error. 

2.

Defendant complains Gambale, who was not called by the State as an 

expert witness, nevertheless improperly offered expert opinions on the ultimate 

issue when he described the empty bags he had found on defendant as "empty 

bags of what are usually used to carry crack-cocaine" and described the contents 

of the bags he had found on defendant as being "suspected crack-cocaine. 
24 A-2846-21

Usually, an off colored drug. Pure cocaine is often what they call stepped-on or 

mixed with other things to make it crack cocaine" or "pure cocaine or possibly 

pure cocaine, close to pure. It's a whiter substance and it's not a rock like. It's 

more of a powder substance." 

A police officer may "offer lay opinions in certain circumstances when 

'the lay opinion testimony was based on, and supported by testimony about, the 

officer's personal perception and observation.'" Derry, 250 N.J. at 632 (quoting 

State v. McLean, 205 N.J. 438, 459 (2011)). However, "a question that requires 

a witness to use 'his training and experience' to 'testify about his belief as to 

what had happened,' strongly suggests that the question calls for an expert 

opinion . . . ." Ibid. (quoting McLean, 205 N.J. at 462).

Gambale's testimony clearly "exceeded the bounds of proper lay opinion 

testimony and crossed over into the realm of expert testimony." State v. Kittrell, 

279 N.J. Super. 225, 236 (App. Div. 1995). His testimony was not limited to 

his sensory perceptions of the bags and substance found on defendant; he opined 

about the use of the bags and make-up of the substance admittedly based on his 

law-enforcement experience and training. The court erred in admitting that 

testimony when the State had not qualified him as an expert witness. 
25 A-2846-21

That error, however, was not plain error "clearly capable of producing an 

unjust result," given the other evidence in the record. R. 2:10-2; see also 

Trinidad, 241 N.J. at 446-47 (finding the admission of police officer's opinion

testimony did not constitute plain error given other evidence of defendant's 

guilt). Gambale's purported expert testimony was consistent with – and did not, 

as defendant argues, clash with – Castaner's properly admitted and unchallenged 

testimony about drug packaging and distribution. His testimony about the 

contents of the bags was sufficiently supported by Hunter's testimony. 

B.

 We now address the jury instructions regarding the criminal-restraint and 

endangering charges, mindful of the following guiding principles. 

"Appropriate and proper charges to a jury are essential for a fair trial." 

State v. Carrero, 229 N.J. 118, 127 (2017) (quoting State v. Daniels, 224 N.J. 

168, 180 (2016)). In charging a jury, a "trial court must give 'a comprehensible 

explanation of the questions that the jury must determine, including the law of 

the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J. 

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). 

"[B]ecause correct jury charges are especially critical in guiding deliberations 

in criminal matters, improper instructions on material issues are presumed to 
26 A-2846-21

constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004). 

"The test to be applied . . . is whether the charge as a whole is misleading, or 

sets forth accurately and fairly the controlling principles of law." Baum, 224 

N.J. at 159 (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 

1997)). 

"[A] jury charge is presumed to be proper when it tracks the model jury 

charge because the process to adopt model jury charges is 'comprehensive and 

thorough.'" Cotto, 471 N.J. Super. at 543 (quoting State v. R.B., 183 N.J. 308, 

325 (2005)). "Ordinarily, the better practice is to mold the instruction in a 

manner that explains the law to the jury in the context of the material facts of 

the case." State v. Concepcion, 111 N.J. 373, 379 (1988). "However, there is 

no principle requiring that in every case a court must deliver a specifically 

tailored instruction relating the facts of the case to the applicable law." State v. 

T.C., 347 N.J. Super. 219, 240 (App. Div. 2002). "When the facts are neither 

complex nor confusing, a court does not have to provide an intricate discussion 

of the facts in the jury charge." Cotto, 471 N.J. Super. at 544; see also State v. 

White, 326 N.J. Super. 304, 315 (App. Div. 1999) (finding that even though a 

more precise molding of the jury instructions to the facts would have been 
27 A-2846-21

preferable, the charge given was sufficient because "as a whole, [it] was 

consistent with the factual theories advanced by the parties"). 

To find plain error in a jury instruction, "there must be 'legal impropriety 

in the charge prejudicially affecting the substantial rights of the defendant and 

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

court that of itself the error possessed a clear capacity to bring about an unjust 

result.'" Cotto, 471 N.J. Super. at 544 (quoting State v. Montalvo, 229 N.J. 300, 

321 (2017)). By not objecting to a charge, a defendant creates "a presumption 

that the charge was not error and was unlikely to prejudice . . . [the] defendant's 

case." Id. at 320. "[A]n 'alleged error is viewed in the totality of the entire 

charge, not in isolation,' and 'any finding of plain error depends on an evaluation 

of the overall strength of the State's case.'" Cotto, 471 N.J. Super. at 545 

(quoting State v. Nero, 195 N.J. 397, 407 (2008)).

1.

A person commits third-degree criminal restraint if he or she "knowingly

. . . [r]estrains another unlawfully in circumstances exposing the other to risk of 

serious bodily injury." N.J.S.A. 2C:13-2. "[T]he 'knowing' mental state applies 

to each of [those] elements . . . ; that is, he knowingly restrains, he knows the 

restraint is unlawful, and knows that the restraint is under circumstances 
28 A-2846-21

exposing the victim to serious bodily injury." State v. Worthy, 329 N.J. Super. 

109, 113 (2000). To be unlawful, the restraint must be accomplished by "force, 

threat, or deception." N.J.S.A. 2C:13-1(d). 

Defendant does not assert the court failed to follow the model jury charge 

in instructing the jury on criminal restraint or failed to apply the knowing mental 

state to each element of the crime. Cf. Worthy, 329 N.J. Super. at 117-18 

(reversing criminal-restraint conviction because trial court failed to apply the 

knowing mental state to all three elements in its jury charge). Instead, defendant 

contends the court's instruction was "inadequate because it failed to inform the 

jury that if [defendant] honestly believed he was permitted to prevent [Nancy] 

from leaving before police arrived, then he could not be guilty of criminal 

restraint." We see no legal or factual basis in this case to modify the instructions 

as defendant now argues. See State v. Dunbrack, 245 N.J. 531, 545 (2021) 

(holding when a defendant did not request a charge at trial, an appellate court 

"assesses whether the record 'clearly indicated' the charge, such that the trial 

court was obligated to give it sua sponte," meaning "'if the evidence is jumping 

off the page'" (quoting State v. Denofa, 187 N.J. 24, 42 (2006))). 

 The assumptions underlying defendant's argument are without support in 

the record. Defendant had no factual or legal basis to "honestly" believe he had 
29 A-2846-21

a right to restrain Nancy. The record lacks any evidence she was attempting to 

leave in an effort to avoid the police. To the contrary, the evidence demonstrates 

Nancy had sought the assistance of the police by calling 9-1-1. The evidence 

shows she was not running away from the house to avoid the police she had 

called to the house but was running upstairs in an apparent effort to get away 

from defendant. When he followed her and grabbed her, she was fleeing 

defendant, not the police. Given the record evidence, it would have been error 

for the court to give the charge defendant now requests on appeal. 

2.

 Defendant does not contend the court failed to give the model jury charge 

on child endangerment. Instead, defendant argues the "jury instruction should 

have precisely identified the alleged conduct that could have impaired or 

debauched the morals of the child," suggesting defendant's "com[ing] home late 

at night while intoxicated," "drug use," or "use of coarse language" could have 

been the basis of the child-endangerment conviction. He also contends the court 

should have given the jury a specific unanimity instruction on the childendangerment charge to eliminate the possibility of a fragmented verdict. We 

disagree. 
30 A-2846-21

 "[O]rdinarily, a general instruction on the requirement of unanimity 

suffices to instruct the jury that it must be unanimous on whatever specifications 

it finds to be the predicate of a guilty verdict." Macchia, 253 N.J. at 256-57 

(quoting State v. Parker, 124 N.J. 628, 641 (1991)). "The fundamental issue is 

whether a more specific instruction was required . . . to avert the possibility of 

a fragmented verdict." State v. Frisby, 174 N.J. 583, 598 (2002). A fragmented 

verdict typically results when "it appears that a genuine possibility of jury 

confusion exists or that a conviction may occur as a result of different jurors 

concluding that a defendant committed conceptually distinct acts." Parker, 124 

N.J. at 641. In determining whether a unanimity charge was required, "[t]he 

reviewing court should examine two factors: whether the acts alleged are 

conceptually similar or are 'contradictory or only marginally related to each 

other,' and whether there is a 'tangible indication of jury confusion.'" Macchia, 

253 N.J. at 257 (quoting State v. Gandhi, 201 N.J. 161, 193 (2010)). 

"[I]n cases where there is a danger of a fragmented verdict the trial court 

must upon request offer a specific unanimity instruction." Frisby, 174 N.J. at 

597-98 (quoting Parker, 124 N.J. at 637). When the defendant failed at trial to 

request a specific instruction, we "must determine whether the absence of a 

specific unanimity charge 'was clearly capable of producing an unjust result.'" 
31 A-2846-21

State v. Kane, 449 N.J. Super. 119, 141 (App. Div. 2017) (quoting Frisby, 174 

N.J. at 598). 

In Frisby, the court found a unanimity charge was required when the State 

had proffered two different theories in support of its child-endangerment charge: 

defendant had inflicted injuries on her son directly or by failing to properly 

supervise him or had abandoned him. Frisby, 174 N.J. at 598-599; see also 

Macchia, 253 N.J. at 258. "Because the State's two different theories were 

'"contradictory," "conceptually distinct," and not even "marginally related" to 

each other,' the Court held, a 'specific unanimity instruction' was required." 

Macchia, 253 N.J. at 258 (quoting Frisby, 174 N.J. at 600). 

 That is not the case here. The State presented one theory of liability 

regarding the child-endangerment charge, and it was based on what Declan had 

seen and done regarding the altercation between defendant and Nancy. Declan 

may have woken up when defendant arrived at the house, but he went back to 

sleep. Declan said nothing about defendant's drinking, drug use, or use of coarse 

language in his testimony. His testimony focused on what he saw and did 

regarding the altercation between defendant and Nancy. In her testimony, 

Nancy said nothing about defendant's drinking or drug use or use of coarse 

language in front of Declan. Her testimony with respect to Declan focused on 
32 A-2846-21

what Declan had witnessed and done with respect to her altercation with 

defendant. In her closing argument, the assistant prosecutor said nothing about 

defendant's drinking, drug use, or coarse language in discussing the childendangerment charge. She focused on the altercation: "State submits that 

9-1-1 call corroborates [Nancy's] story of being strangled, and also corroborates 

[Declan's] story of having to intervene to give his mom some air. And the State 

submits to you that that's endangering the welfare of [Declan]. That's 

endangering the welfare of a child." 

Given the State's one theory of liability on child endangerment and the 

lack of evidence Declan was harmed in any other way, a fragmented verdict 

wasn't possible and the court had no reason to give more specific instructions as 

to the basis of the charge or unanimity and the absence of those more specific 

charges was not "clearly capable of producing an unjust result." Kane, 449 N.J. 

Super. at 141 (quoting Frisby, 174 N.J. at 598). 

C.

 Defendant argues we must vacate his sentence because the court erred in 

(1) finding aggravating factor eleven, (2) engaging in improper double counting 

in finding aggravating factor fourteen, (3) failing to set forth a sufficient basis 
33 A-2846-21

for finding aggravating factor nine, and (4) its Yarbough, 100 N.J. 627, and 

Torres, 246 N.J. 246, analysis in imposing consecutive sentences. 

 We review a trial court's sentencing decision under an abuse-of-discretion 

standard. State v. Konecny, 250 N.J. 321, 334 (2022). We do "not substitute 

[our] judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 

70 (2014). We apply the deferential standard so long as the sentencing court 

"follow[ed] the Code and the basic precepts that channel sentencing discretion." 

State v. Case, 220 N.J. 49, 65 (2014); see also Trinidad, 241 N.J. at 453. Thus, 

we affirm a sentence "unless (1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found were not 'based upon competent 

credible evidence in the record;' or (3) 'the application of the guidelines to the 

facts of [the] case makes the sentence clearly unreasonable so as to shock the 

judicial conscience.'" State v. Rivera, 249 N.J. 285, 297-98 (2021) (quoting 

State v. Roth, 95 N.J. 334, 364-65 (1984)); see also State v. Vanderee, 476 N.J. 

Super. 214, 235 (App. Div.), certif. denied, 255 N.J. 506 (2023). We remand 

for a resentencing if the trial court "fail[ed] to provide a qualitative analysis of 

the relevant sentencing factors on the record." Fuentes, 217 N.J. at 70. 

The State concedes the court's consideration of aggravating factor eleven 

was improper but contends that error was harmless. We disagree and, 
34 A-2846-21

accordingly, vacate the sentence and remand the case for resentencing without 

consideration of aggravating factor eleven. 

In discussing defendant's personal history along with its other 

considerations, the court provided an adequate explanation for its finding of 

aggravating factor nine. However, we are unable to glean from the court's 

decision whether the court engaged in improper double counting as to 

aggravating factor fourteen. 

"Elements of a crime, including those that establish its grade, may not be

used as aggravating factors for sentencing of that particular crime." State v.

Lawless, 214 N.J. 594, 608 (2013); see also Fuentes, 217 N.J. at 74-75 (holding 

that sentencing courts "must scrupulously avoid 'double-counting' facts that 

establish the elements of the relevant offense"). "A court, however, does not

engage in double-counting when it considers facts showing defendant did more 

than the minimum the State is required to prove to establish the elements of an

offense." State v. A.T.C., 454 N.J. Super. 235, 254-55 (App. Div. 2018); see 

also Fuentes, 217 N.J. at 75 ("A sentencing court may consider 'aggravating 

facts showing that [a] defendant's behavior extended to the extreme reaches of

the prohibited behavior.'" (alteration in original) (quoting State v. Henry, 418 

N.J. Super. 481, 495 (Law Div. 2010))); see A.T.C., 454 N.J. Super. at 254-55;
35 A-2846-21

see also State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (the court 

properly considered a four-year-old sexual assault victim's "extreme youth" in

applying aggravating factor fourteen when the statute already covered victims 

under thirteen years old). 

The judgment of conviction does not reference aggravating factor 

fourteen. At the sentencing hearing, however, the court stated, "there is also 

aggravating factor number fourteen, in that there's an act of domestic violence 

that the court has considered." On remand, we direct the court to state clearly 

whether it finds aggravating factor fourteen and, if so, the court shall make 

findings of fact and conclusions of law supporting its finding and weighing of

the factor and explain how it found the factor without engaging in improper 

double counting. 

At the sentencing hearing, the court provided some, albeit limited, 

analysis of the Yarbough factors to explain its decision to impose consecutive 

sentences. It did not give "[a]n explicit statement, explaining the overall fairness 

of [the] sentence," which "is essential to a proper Yarbough sentencing 

assessment." Torres, 246 N.J. at 268. That omission is particularly glaring when 

the court imposed a twenty-four-year aggregate prison term based on an

extended term sentence and multiple consecutive sentences. On remand, we
36 A-2846-21

direct the court to provide a thorough Yarbough analysis, including a statement 

regarding the overall fairness of the sentence. 

 Affirmed as to the convictions; vacated as to the sentence; remanded for 

proceedings consistent with this opinion. We do not retain jurisdiction.