RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0215-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUASHAWN K. JONES,

Defendant-Appellant.

____________________________

Submitted January 11, 2018 – Decided

Before Judges Haas, Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 14-11-3279.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Rochelle Watson, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (Melinda A. Harrigan, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

posted on the internet, this opinion is binding only on the parties in the case and its use in other 

cases is limited. R. 1:36-3.

September 10, 2018
2

A-0215-15T2

Following a five-day jury trial, defendant Quashawn Jones was convicted of 

two counts of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and/or 

(2) (counts one and nine);1second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count 

three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 

2C:39-4(a) (count five); second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b) (count six); third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count 

seven); 2and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 

(count ten).3 Defendant was sentenced to an aggregate term of sixty-five years' 

imprisonment, fifty of which were subject to the eighty-five percent parole 

ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

 

1

 For trial purposes, counts five through ten of the indictment were renumbered 

as counts four through nine after count four was dismissed pre-trial on the State's 

motion. Before the case was submitted to the jury, the trial judge granted 

defendant's motion for a judgment of acquittal, R. 3:18-1, on count eight 

renumbered as count seven, charging first-degree witness tampering, N.J.S.A. 

2C:28-5(a), and renumbered count nine, charging attempted murder, as count 

seven.

2

 Defendant was indicted for first-degree witness tampering, but the jury 

convicted him of the lesser-included offense of third-degree witness tampering.

3

 Following the jury trial, the trial judge found defendant guilty of the certain 

persons charge in a bifurcated bench trial.
3

A-0215-15T2

The convictions stemmed from defendant shooting the victim, A.A., three 

times, in an attempt to kill her. Defendant shot A.A. because he feared that A.A. 

and her two female friends who witnessed the events leading up to the shootings 

were setting him up to be robbed or killed. Of the three women, only A.A. testified 

at trial. In addition, recorded phone conversations were played for the jury, during 

which defendant discussed, among other things, killing A.A. to prevent her from 

testifying, the State's evidence against him, and his defenses. Although A.A. was 

the named victim in both attempted murder charges, count one pertained to the 

shootings while count nine was predicated upon defendant's comments in those 

phone conversations.

Defendant now appeals from his convictions and sentence, raising the following 

arguments for our consideration:

POINT I

PHONE CALLS IN WHICH DEFENDANT 

DISCUSSED THE STATE'S EVIDENCE AGAINST 

HIM, POSSIBLE DEFENSES, AND THE 

APPLICABLE SENTENCING RANGES SHOULD 

HAVE BEEN EXCLUDED UNDER N.J.R.E. 403. 

COMPOUNDING THE PREJUDICE OF THIS 

ERROR, THE PROSECUTOR ARGUED THAT 

DEFENDANT WAS "HEDGING HIS BETS" WITH 

THE TWO AFFIRMATIVE DEFENSES PRESENTED 

AT TRIAL. (NOT RAISED BELOW).
4

A-0215-15T2

POINT II

RELYING SOLELY ON PHONE CALLS IN WHICH 

DEFENDANT EXPRESSED A STRONG DESIRE 

FOR THE VICTIM'S DEATH, THE STATE FAILED 

TO ESTABLISH THAT DEFENDANT TOOK A 

SUBSTANTIAL STEP TO FURTHER HIS ALLEGED 

CRIMINAL PURPOSE. THEREFORE, THE 

EVIDENCE IS INSUFFICIENT TO SUSTAIN THE 

SECOND ATTEMPTED MURDER CONVICTION.

POINT III

A REMAND FOR RESENTENCING IS 

WARRANTED BECAUSE IN IMPOSING AN 

AGGREGATE TERM OF SIXTY-FIVE YEARS' 

IMPRISONMENT, THE TRIAL COURT 

EMPHASIZED THE NEED TO SEND A MESSAGE 

TO THE ATLANTIC CITY COMMUNITY AND 

IMPUGNED DEFENDANT FOR INVESTIGATING 

AN INSANITY DEFENSE AND REJECTING THE 

STATE'S PLEA DEAL.

After considering the arguments presented in light of the record and applicable 

law, we reject defendant's argument in Point I, but agree with defendant's argument 

in Point II that the trial court should have granted his motion for a judgment of 

acquittal on the second attempted murder charge because the State failed to establish 

a substantial step. Accordingly, we affirm in part, reverse count nine only, and 

remand for re-sentencing based upon our reversal.
5

A-0215-15T2

I.

We recite the facts pertinent to the issues raised on appeal gleaned from the 

trial record. During the early morning hours of November 18, 2013, A.A. and her 

two friends, M.C. and U.J., were "hanging out" with defendant, whom A.A. had 

known since childhood, at M.C.'s apartment on North South Carolina Avenue in 

Atlantic City. A.A. observed defendant "[p]acing back and forth," in the kitchen and 

"checking out the window" while U.J., who was also in the kitchen, "[l]ook[ed] out 

the window." According to A.A., defendant was sweating profusely, appeared angry 

and agitated, and asked U.J. why she was looking out the window, but her response 

that she was waiting for her boyfriend to arrive did not seem to appease him. Shortly 

thereafter, defendant accused the women of "lining him up"4and told M.C. that "he 

was going to kill her friend[,]" referring to A.A. 

When defendant pulled a gun out of his waistband, A.A. knew that he was 

serious and fled to the bathroom, intending to escape through the bathroom window. 

However, she decided instead to try to assuage defendant's fears by showing him her 

phone to prove that she had not contacted anyone to "set something up." After A.A. 

came out of the bathroom to show defendant her phone, a struggle ensued during 

 

4

 A.A. explained that "lining him up" meant that the women were setting 

defendant up to be robbed or killed. 
6

A-0215-15T2

which defendant grabbed A.A. While they "fumbl[ed] around the kitchen," M.C. 

tried to restrain defendant but the altercation escalated and all three ended up on the 

floor. As the struggle continued, U.J. ran out of the apartment and M.C. managed 

to flee from the kitchen, leaving A.A. alone on the floor fighting defendant.

During the fight, A.A. heard a gunshot but was unsure at the time whether the 

gun discharged on its own or defendant shot her. After defendant was able to 

extricate himself from A.A., he placed his foot on her chest and shot her in the neck. 

While A.A. pretended to be dead, she observed defendant open the kitchen window, 

fire a shot out the window and yell, "[H]elp, I'm hit, I'm hit." At that point, M.C. 

yelled out to defendant that if he put the gun down, she would return to the kitchen. 

Defendant responded, "[If you come in the kitchen, I'm going to kill this bitch." 

Defendant then shot A.A. a second time in the neck, fired a shot out the kitchen 

window a second time, and shot A.A. one more time before he "jumped out of [the 

kitchen] window" of M.C.'s second floor apartment. 

Thereafter, A.A. managed to go to the apartment across from M.C.'s to 

summon help, and was transported by ambulance to the hospital where she 

underwent emergency surgery for life threatening injuries. A.A. suffered "multiple 

gunshot wounds about the face and the neck, . . . the right arm and the right [axillary] 

armpit region." She "had acute blood loss anemia," a collapsed right lung, a 
7

A-0215-15T2

fractured clavicle and humerus, and "multiple . . . abrasions and lacerations around 

the chin on both sides." She was intubated to prevent her airway from collapsing. 

Meanwhile, at approximately 6:27 a.m. the same morning, M.C. approached 

Atlantic City Police Officer Sumon Majunder, who was responding to the scene of 

the shooting, and told him that "she believed" her girlfriend was shot in her 

apartment by "a male [by the] name of Shawn a/k/a Neff"5after "they got into an 

argument." According to Majunder, M.C. was "crying," "very nervous," "excited" 

and "talking . . . fast." At approximately 6:23 a.m., Atlantic City Police Officer 

Richard Johnson was also responding to the scene when he encountered a man 

"trying to flag down a car" on Route 30, about a block away from the shooting. 

When Johnson "hollered to him . . . [to] get out of the street," the man, who was later 

identified as defendant, responded, "[T]hey're trying to kill me."

After giving Johnson a false name, defendant explained that while walking 

with a woman on South Carolina Avenue, "[a] green van pull[ed] up," and "a guy 

jump[ed] out of the van and start[ed] shooting at him." Defendant told Johnson he 

did not know where the woman, whom he identified by A.A.'s nickname, went but 

he (defendant) "ran here" where he encountered Johnson. Defendant had blood on 

 

5

 Defendant was known by the names "Nef" and "Shawny."
8

A-0215-15T2

his mouth, but no other visible injuries. At defendant's request, he was taken to the 

hospital by ambulance for treatment. 

As a result of the investigation into A.A.'s shooting, defendant was later 

arrested. Police recovered three shell casings inside M.C.'s apartment6and one 

outside below the kitchen window adjacent to a bootprint. All four shell casings 

were .40 caliber and all were fired from the same gun. Police also recovered a 

magazine from a Smith and Wesson semiautomatic .40 caliber handgun in the gutter 

along Route 30. However, no weapon was ever recovered. 

At trial, A.A. recounted various contacts with defendant and his 

representatives after the shooting. A.A. testified that in September 2014, while she 

was speaking on the telephone to a friend she was visiting at the Atlantic County 

Justice Facility, defendant "took the phone" and "told [her] that [she] was the only 

way that he could get out of jail," and she "needed to make this go away." Defendant 

told A.A. "that if there was anything that he [could] do as far as money, minutes or 

 

6

 Inside M.C.'s apartment, police also found marijuana packaged for 

distribution, oxycodone pills and drug paraphernalia. Although A.A. testified 

that she had stayed at M.C.'s apartment for three days prior to the shooting and 

observed a number of people making short visits to the apartment, she denied 

any knowledge of M.C.'s drug dealing activities.
9

A-0215-15T2

whatever, . . . he would do it for [her]." Following this conversation, A.A. contacted 

the Prosecutor's Office and relayed the details of defendant's offer. 

A.A. further testified that a man approached her on the street and told her that 

defendant "needed [her] to take [her] statement back because he needed to get home 

to finish [her] off and to handle [her] brother." In addition, a woman told her "not 

to come to court." On September 10, 2014, A.A. received a phone call from an 

unfamiliar phone number. While on the call, A.A. heard defendant's voice and ended 

the call. Shortly thereafter, A.A. received text messages from the same phone 

number stating: "that was Nef. He just didn't want to say it over the phone" and "Nef 

just wanted to talk to you." After receiving these messages, A.A. again contacted 

the Prosecutor's Office. At the request of Atlantic County Prosecutor's Office 

Detective Caroline MacDonald, A.A. engaged in a consensual phone conversation 

with defendant at M.C.'s apartment, which was recorded by MacDonald and played 

in its entirety at trial. 

In the conversation, defendant explained that he had no intent to harm A.A. 

and asserted that he had alerted police to her injuries. Defendant also explained the 

reason for his suspicion of the women that morning7and detailed the discovery he 

 

7

 Defendant explained that he had been the intended victim of a shooting at 

M.C.'s apartment building a couple days earlier.
10 A-0215-15T2

received from the State, as well as his desire to help A.A. with "whatever [she] 

need[ed]." Defendant also disputed A.A.'s statement that the gun went off while the 

two were fighting on the kitchen floor and alleged that it went off during the initial 

"tussle." Defendant stated, "You know you came in, you did what you did, I got 

turned around and I grabbed you, the joint[8] was already out. Somebody grabbed 

me and . . . [t]hat thing went off."

At trial, the State also introduced excerpts from other phone conversations 

recorded while defendant was confined at the Atlantic County Justice Facility from 

February 8 to April 28, 2014, involving numbers associated with defendant. In these 

conversations, defendant discussed with his girlfriend and his cousin: (1) the events 

of November 18, 2013; (2) the State's discovery; (3) possible defenses; (4) whether 

to post bail; (5) inconsistent witness statements; (6) witness recantations; and (6) 

defendant's frustration that certain persons were "still walkin [sic] around." 

At the close of the State's case, the court granted defendant's motion for a 

judgment of acquittal on count eight, charging witness tampering of M.C.,9 but 

 

8

 According to A.A., "joint" referred to the gun.

9

 The court conducted hearings outside the presence of the jury to ascertain 

M.C.'s availability to testify. Ultimately, M.C. invoked her Fifth Amendment 

right and did not testify at the trial.
11 A-0215-15T2

denied defendant's motion for a judgment of acquittal on count nine, the second 

attempted murder charge. Following the verdict, on July 31, 2015, the court denied 

defendant's motion for a judgment notwithstanding the verdict on count nine, R.

3:18-2, and denied defendant's motion for a new trial. R. 3:20-1. On the same date, 

the court granted the State's motion for a discretionary extended term sentence, 

pursuant to N.J.S.A. 2C:44-3, and, after mergers, sentenced defendant to an extended 

term of thirty-five years' imprisonment, subject to NERA, on count one, the first 

attempted murder charge. On count seven, the witness tampering charge, the court 

sentenced defendant to five years imprisonment, consecutive to count one. On count 

nine, the second attempted murder charge, the court sentenced defendant to fifteen 

years imprisonment, subject to NERA, consecutive to count seven. On count ten, 

the certain person charge, the court sentenced defendant to ten years imprisonment, 

with a five-year period of parole ineligibility, consecutive to count nine.10 This 

appeal followed. 

II.

In Point I, defendant argues that the court erred in admitting the telephone 

conversations recorded at the Atlantic County Justice Facility. Defendant asserts 

that the calls "were not relevant under N.J.R.E. 401, to prove or disprove any fact of 

 

10

 The remaining counts were merged into count one.
12 A-0215-15T2

consequence" and "were unduly prejudicial under N.J.R.E. 403." Defendant asserts 

"[t]he inflammatory nature of the phone calls would lead a juror to believe that 

defendant was manipulating the legal system and trying to evade responsibility by 

trying out various spurious defenses" and "hindered the jury's ability to judge 

impartially [defendant's] self-defense and attempted passion/provocation 

manslaughter defenses." 

Because defendant's contentions in Point I are raised for the first time on 

appeal, we review them under the plain error standard. R. 2:10-2. Plain error is an 

"error possessing a clear capacity to bring about an unjust result and which 

substantially prejudiced the defendant's fundamental right to have the jury fairly 

evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 576-77 

(1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)). A reversal based on plain 

error requires us to find that the error likely led to an unjust result that is "sufficient 

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

might not have reached." State v. Williams, 168 N.J. 323, 336 (2001) (quoting State 

v. Macon, 57 N.J. 325, 336 (1971)). Applying that standard, we find no plain error 

here.

N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in 

reason to prove or disprove any fact of consequence to the determination of the 
13 A-0215-15T2

action." "Courts consider evidence to be probative when it has a tendency 'to 

establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127 

(2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)). The 

evidence must be probative of a fact that is "really in issue in the case," as determined 

by reference to the applicable substantive law. State v. Buckley, 216 N.J. 249, 261 

(2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)).

Under N.J.R.E. 401, "[e]vidence need not be dispositive or even strongly 

probative in order to clear the relevancy bar." Buckley, 216 N.J. at 261. Moreover, 

"[t]he proponent need not demonstrate that the evidence can, in and of itself, 

establish or disprove a fact of consequence in order to meet the benchmark of 

N.J.R.E. 401." State v. Cole, 229 N.J. 430, 448 (2017). "Once a logical relevancy 

can be found to bridge the evidence offered and a consequential issue in the case, 

the evidence is admissible, unless exclusion is warranted under a specific evidence 

rule." Burr, 195 N.J. at 127; see N.J.R.E. 402.

One such exclusionary rule is N.J.R.E. 403. N.J.R.E 403 mandates the 

exclusion of evidence that is otherwise admissible "if its probative value is 

substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or 

misleading the jury or (b) undue delay, waste of time, or needless presentation of 
14 A-0215-15T2

cumulative evidence." Here, defendant relies on the "undue prejudice" factor in 

N.J.R.E. 403. 

The inquiry under that provision "is whether the probative value of the 

evidence 'is so significantly outweighed by [its] inherently inflammatory potential 

as to have a probable capacity to divert the minds of the jurors from a reasonable 

and fair evaluation of the' issues." Cole, 229 N.J. at 448 (alteration in original) 

(quoting State v. Thompson, 59 N.J. 396, 421 (1971)). "It is not enough for the 

opposing party to show that the evidence could be prejudicial; '[d]amaging evidence 

usually is very prejudicial but the question here is whether the risk of undue 

prejudice was too high.'" Ibid. (alteration in original) (emphasis omitted) (quoting 

State v. Morton, 155 N.J. 383, 453-54 (1998)). Indeed, "[t]he mere possibility that 

evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. 

Super. 236, 253 (App. Div. 2000).

The first phone call with which defendant takes issue was a conversation with 

his girlfriend, in which he discussed bail, a possible insanity-based defense, and 

potential problems with A.A.'s anticipated trial testimony:

[DEFENDANT]: So what do you think? So . . . what 

your tellin me is like just sit in here and wait till this 

plays out or like bail out and
15 A-0215-15T2

[GIRLFRIEND]: Oh no I would bail out, I would not 

sit in there, I would bail out I mean hopefully, . . . you 

beat it but what if you don't?

[DEFENDANT]: It wouldn't be no reason I wouldn't 

beat it.

[GIRLFRIEND]: Then you gonna be stuck

[DEFENDANT]: Nah I mean even if I was to go to trial 

. . . on this shit, . . . she still got to get up there and she 

will have to give them a reason why that shit happened 

you feel what I'm saying and if they still running off 

this.

. . . . 

I was on drugs type shit that ain't, that's like pleain for 

insanity type shit they can't give me no time for that you 

feel me?

. . . .

They can't give me no time for that so I'll beat it like 

that or she got to come up with a story that would say 

you been around this [n-word] for almost a year and 

some change[,] he never did this what would make him 

do it this time you feel what I'm saying they got to paint 

that picture and she can't give no reasonable 

explanation of why I would do something like that. 

 

In another phone call with his girlfriend, defendant discussed his intention to 

go to trial, the weaknesses in the State's proofs and possible sentences:

[DEFENDANT]: Hell yeah I'm goin to trial, you damn 

right I'm goin to trial . . . , I'm goin to trial because at 

the end of the day . . . 
16 A-0215-15T2

[GIRLFRIEND]: Well, with attempted murder charges 

they gonna be . . . offerin you a lot from the beginning 

even if you don't go to trial right?

[DEFENDANT]: (Inaudible) [fifteen], startin but . . . 

when I go to trial they have to find me guilty of the 

attempted murder like it has to be attempted murder or 

they gotta find me guilty of a lesser charge and that 

lesser charge would be aggravated assault the charge 

they . . . throwin out, you feel me.

. . . .

The aggravated assault . . . it'll range from five to ten 

years but the shit is a reckless aggravated assault . . . so 

that shits anywhere from three to five years, so I'll go 

to trial and I lose the most I can get is fifteen, you feel 

me but they gonna have to . . . prove all that shit, they 

need a weapon, they need everything they don't have 

none of that shit you feel me like all that shit that them 

bitches they said got conflicted stories already like . . .

In the final conversation at issue, defendant reiterated his belief that the State's 

evidence against him on the attempted murder charge was weak and discussed an 

attempted passion/provocation manslaughter related defense as well as his surprise 

at learning that A.A. made a statement.

[DEFENDANT]: They gotta paint a picture and the 

bitches statements was that from what I'm hearin that 

the statements was that I, I was high I, I went crazy, I 

tripped out so that attempted murder shit is not gonna 

rock out anyway, you feel me? That's like a crime in 

that ah, in the heat of passion type crime, if I was to kill 

somebody if I came in the house and caught you with 
17 A-0215-15T2

another [n-word] and killed him I'd only do five years 

behind that cause it's in the heat of passion you feel me? 

I did it on some emotional type shit so now they sayin 

I did the shit while I was high and on drugs and all this 

. . . cool keep on runnin with that keep on saying that 

shit ya'll ain't doin nothin but helpin me out and at the 

end of the day they gonna ask you well how long you 

been around this person, how long you been chillin with 

him, how long have you known him[,] bitches been 

knowin me forever never did no . . . shit like this that 

they saying I did and if they do say I did somethin like 

that before[,] they gonna ask em why did ya'll continue 

to hang around this man if he was actin like this like[,] 

it's a whole bunch of shit that's wit this case man, like 

it's just some fuck shit bitches did some fuck shit. You 

feel me, like all that bitches have a change of heart shit 

that's why I said man I didn't know that bitch made no 

statement, I knew she was went to the hospital that bitch 

didn't make no statement she went right in surgery that 

bitch was right next to me. I got my stitches they was 

stitchin her up or doin whatever they was doin to her. 

That was it. 

Defendant argues that the issue before the jury was whether he "acted in selfdefense" and "was justified in using deadly force against [A.A.] for his selfprotection" or "whether he attempted to cause her death while in the heat of passion 

arising from reasonable provocation." According to defendant, his "characterization 

of the State's evidence and its application to various defenses was not relevant to the 

resolution of these issues." The State counters that the evidence was relevant to 

establish "defendant's motive and state of mind" in connection with the witness 

tampering and related attempted murder charge. According to the State, the 
18 A-0215-15T2

evidence "show[ed] why he wanted [A.A.] dead." The State also points out that the 

evidence was necessary to contradict "defendant's theory at trial . . . that this was an 

imperfect self-defense – attempted passion provocation."

In support, the State highlights other call excerpts during which "defendant's 

initial mindset that [A.A.] did not give a statement and was not going to testify" 

changed when he discovered that A.A. "not only gave a statement to police, but also 

showed up in court . . . ready to testify against him." According to the State, these 

conversations demonstrated how defendant's initial confidence that he would prevail 

at trial was undermined by the knowledge that his aggravated assault charge was 

being upgraded to attempted murder and ultimately caused him to "question[] . 

. . why [A.A.] was not dead." Specifically, the State points to the following 

exchange:

[DEFENDANT]: [Y]a'll talk to that bail bondsman? 

Ya'll gotta bust that thing ASAP.

[GIRLFRIEND]: I don't know what's up with her I 

haven't talked to her you still ain't talk to her?

[DEFENDANT]: Hell no I went to court today man that 

bitch was in court like what's going on?

[GIRLFRIEND]: Who, the girl was in court?

[DEFENDANT]: Her and her brother.

[GIRLFRIEND]: Her and her brother was in court?
19 A-0215-15T2

[DEFENDANT]: Man they threw my aggravated 

assault shit out they indictin me on attempted murder 

now.

[GIRLFRIEND]: Oh my God.

[DEFENDANT]: On everything.

. . . .

[GIRLFRIEND]: You indicted or they gettin ready to 

indict you?

[DEFENDANT]: (Inaudible) I was supposed to go back 

today for the pre-indictment on the aggravated assault 

to get my discovery for that but when I got in there the 

lawyer . . .

[GIRLFRIEND]: So that means she's gonna testify in 

court then.

[DEFENDANT]: That's what I'm sayin, that's when she 

came out, that's when she came out there cause the bitch 

. . . the prosecutor stood up and she said some shit to 

me that when she addressed the court and she said some 

shit to the court that only people in that house would 

know, you feel what I'm saying?

[GIRLFRIEND]: Um hmm.

[DEFENDANT]: So I'm just like damn this is why they 

not indictin me on the aggravated assault now they 

indictin me on attempted murder they said cause . . . the 

bitch got shot while she was on the ground, I shot her 

while she was on the ground and some shit like that. 

But only people that would know anything like that was 

if you was in that crib, if you was on the scene of that 
20 A-0215-15T2

shit happenin and shit like so they didn't indict me, . . . 

they didn't even give me discovery on the case they said 

they not indictin on that, they indictin me on attempted 

murder so they sendin my shit back [to] grand jury and 

it take like 60-90 days cause the shit gotta go through 

the grand jury all over again and see how they gonna 

work the shit.

. . . .

Yo ask her why the fuck she say everybody's recantin, 

ain't nobody comin to court, tell her that bitch was in 

court today wit her fucking brother.

Evidence may be excluded under N.J.R.E. 403 where the evidence pertains to 

subordinate issues, that is, issues not addressing defendant's guilt or innocence. See

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 

(2018). However, "[a]t criminal trials, 'courts generally admit a wider range of 

evidence when the motive or intent of the accused is material.'" State v. Koskovich, 

168 N.J. 448, 483 (2001) (quoting State v. Covell, 157 N.J. 554, 565 (1999)). Here, 

we are satisfied that the admission of the recorded conversations does not constitute 

plain error. While the evidence was undoubtedly damaging, "the danger of undue 

prejudice" did not "outweigh probative value so as to divert jurors 'from a reasonable 

and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 

N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. 

Div. 1988)). 
21 A-0215-15T2

Furthermore, the court correctly provided a limiting instruction for the 

portions of the recordings relating to sentencing and plea bargaining, both after the 

calls were played and again at the end of the case prior to jury deliberations. See

Shannon v. U.S., 512 U.S. 573, 579 (1994) (reiterating the principle that the jury 

"should be admonished to 'reach its verdict without regard to what sentence might 

be imposed.'"); State v. Conforti, 53 N.J. 239, 244-45 (1969) (noting that in making 

its determination, "the jury should not be influenced by a consideration of what will 

be the result of its verdict, nor should its attention be distracted from its chief 

function"). 

The court instructed the jurors to "totally disregard" any mention of plea 

bargains and sentences because it was "not relevant to anything that has to do with 

this case," it was "beyond [their] function . . . as the jury," and "it should not in any 

way enter in[]to [their] deliberations for any purpose." The court reminded the jurors 

that they were "here to determine whether the defendant [was] guilty or not guilty of 

the charges and that [was] all." The court told the jurors they were "not to give any 

regard to any punishment upon any conviction, if there should be a conviction[,] and 

the State prove[d] any of the charges beyond a reasonable doubt." "We presume the 

jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012).
22 A-0215-15T2

Defendant argues further that, despite the court's instruction to the jury to 

disregard any discussions in the calls about sentencing ranges or plea bargains, the 

"inadmissible phone calls laid the foundation for the prosecutor's improper argument 

in summation," suggesting that "both defenses [were] farcical." According to 

defendant, the prejudicial nature of the prosecutor's comments took the focus away 

from the "central issue at trial," namely, "what transpired during the shooting in 

[M.C.'s] apartment," and placed it on defendant's "haught[y] express[ions] . . . that 

certain defenses could work in his favor based on the [S]tate's witnesses' statements." 

"Because [defendant] failed to object at trial, we review the challenged 

comments for plain error." State v. Pressley, 232 N.J. 587, 593 (2018). "[W]hen 

counsel does not make a timely objection at trial, it is a sign 'that defense counsel 

did not believe the remarks were prejudicial . . . .'" Id. at 593-94. Thus, 

"[d]efendant's lack of objections . . . weighs against defendant's claim that errors 

were 'clear' or 'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below 

that in the context of the trial the error was actually of no moment.'" State v. Nelson, 

173 N.J. 417, 471 (2002) (alterations in original) (quoting Macon, 57 N.J. at 333). 

Here, we are convinced that defendant has not shown that any error was "'clearly 

and unmistakably improper' and 'so egregious' that it deprived [him] of the 'right to 
23 A-0215-15T2

have a jury fairly evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-94 

(quoting State v. Wakefield, 190 N.J. 397, 437-38 (2007)). 

Defendant asserts the following comment during the prosecutor's summation 

was improper:

And I was sitting here and I hear about self-defense, 

suggesting that this is self-defense. In what world is 

what happened to [A.A.] self-defense? An honest 

belief he needed to protect himself when shooting her 

three times, was it the first shot when she was lying on 

the ground that he was acting in self-defense, was it the 

second shot when she was lying on the ground that he 

acted in self-defense, or was it that third shot when he 

fired at [A.A.] that he was acting in self-defense, 

hedging his bet because it's so obvious he's the shooter, 

hey, this honest but unreasonable belief that I could 

shoot her. How could you say there's an honest belief 

to shoot somebody on the floor? Passion/provocation, 

another hedging of the bet because it's so clear that he's 

the shooter in this case and we're going to talk about 

that stuff that something happened in that house that 

aroused his passion to lose self control and what he did 

by losing self control is a reasonable reaction to the 

circumstances.

"Prosecutors can sum up cases with force and vigor, and are afforded 

considerable leeway so long as their comments are 'reasonably related to the scope 

of the evidence presented.'" Id. at 593 (quoting Timmendequas, 161 N.J. 515, 587 

(1999)). "A prosecutor may respond to defense claims, even if the response tends to 

undermine the defense case." Nelson, 173 N.J. at 473. We are satisfied that the 
24 A-0215-15T2

manner in which the prosecutor expressed disbelief in the defense case did not 

exceed the bounds of propriety, particularly since the assessment was "reasonably 

related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).

Defendant analogizes this case to State v. Acker, 265 N.J. Super. 351, 356 

(App. Div. 1993), where we condemned a prosecutor calling a defense counsel's 

arguments "absolutely outrageous" and "absolutely preposterous." In Acker, 265 

N.J. Super. at 354-55, the prosecutor not only disparaged the defense with 

unsupported allegations, but also suggested to the jury in a prosecution for sexual 

abuse of young girls that it was the jury's duty to protect children who had no other 

spokesperson, and that the alleged child victims should be given justice. Acker is 

clearly distinguishable from the present case, and we find defendant's analogy 

unpersuasive.

III.

Turning to Point II, defendant argues the court erred in denying the motion 

for a judgment of acquittal on attempted murder because "the State failed to prove 

'the substantial step' element of attempted murder beyond a reasonable doubt." 

Defendant asserts that although he "expressed his displeasure that [A.A.] was going 
25 A-0215-15T2

to testify," nothing in the intercepted phone "conversations even remotely solicited 

anyone to take any sort of steps to cause her harm," and without more, his 

expressions are "not a cognizable attempt under the law." We agree.

A motion for judgment of acquittal at the close of the State's case may be 

granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.

[T]he question the trial judge must determine is 

whether, viewing the State's evidence in its entirety, be 

that evidence direct or circumstantial, and giving the 

State the benefit of all its favorable testimony as well 

as all of the favorable inferences which reasonably 

could be drawn therefrom, a reasonable jury could find 

guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We review a trial court's denial of a motion for acquittal de novo, State v. Williams, 

218 N.J. 576, 593-94 (2014), using "the same standard as the [judge] in determining 

whether a judgment of acquittal was warranted." State v. Ellis, 424 N.J. Super. 267,

273 (App. Div. 2012). Like the trial court, we "must consider only the existence of 

such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super. 

447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342 

(1974)).

A defendant is guilty of attempted murder if he purposefully did anything with 

purpose of, and made a substantial step toward, causing the victim's death. N.J.S.A. 
26 A-0215-15T2

2C:5-1(a)(3); N.J.S.A. 2C:11-3(a)(1). "An attempt is purposeful "not only because 

it is so defined by statute, but because one cannot logically attempt to cause a 

particular result unless causing that result is one's "conscious object," the 

distinguishing feature of a purposeful mental state.'" State v. McCoy, 116 N.J. 293, 

304 (1989) (quoting State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986)). 

The "statute requires proof of a defendant's criminal purpose, as well as evidence 

that he or she had taken a 'substantial step' toward the commission of an object 

crime." State v. Perez, 177 N.J. 540, 553 (2003) (quoting N.J.S.A. 2C:5-1(a)(3)). 

"Conduct shall not be held to constitute a substantial step . . . unless it is 

strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1(b). "[T]he 

step taken must be substantial and not just a very remote preparatory act, and must 

show that the accused has a firmness of criminal purpose." State v. Belliard, 415 

N.J. Super. 51, 73 (App. Div. 2010) (quoting Model Jury Charge (Criminal), 

"Attempt" (2009)). However, "even if further major steps are required before a 

crime can be completed, or the accused had ample opportunity to desist prior to 

completing the crime, a jury can still conclude that an attempt has been committed." 

State v. Fornino, 223 N.J. Super. 531, 540 (App. Div. 1988). 

During oral argument on defendant's motion for a judgment of acquittal on 

count nine, the court inquired of the State "what was the substantial step?" In 
27 A-0215-15T2

response, the State pointed to the following excerpts from the recorded phone 

conversations:

[DEFENDANT]: Yeah ask him about the car and tell 

him what happened wit me in court like . . . he 

supposed to (inaudible) like what the fuck is people still 

walkin around for?

[GIRLFRIEND]: Well, what is he . . . what am I 

supposed to tell him that the girl be in court?

[DEFENDANT]: Yeah.

. . . .

[DEFENDANT]: Well you just text him off of that and 

tell him I said man he gotta down that shit dog

[GIRLFRIEND]: (Inaudible) my phone, I'm going to 

text him on the Ipad (inaudible)

[DEFENDANT]: This shit is just, he gotta down that, 

fuck that man them bitches is coming, she keep talking 

all this bitches ain't coming man fuck that, I don't know 

what the fuck they said, what they said is what 

happened fuck everything else it just is what is what 

they said is what happened, fuck it, that's just what it is 

man, that's just what it is

. . . .

[DEFENDANT]: Ain't nobody, if [n-word] was 

understanding my position that bitch would have been 

dead already if [n-word] was understanding my 

position, fuck outta here ain't nobody understanding my 

position yo that bitch is still out there running round 

with your sister and she's coming to court but [n-word] 
28 A-0215-15T2

is understanding my position man come on man nobody 

understanding my fucking position dog that shits crazy 

as hell yo.

. . . .

[DEFENDANT]: I wouldn't need a lawyer if [n-word] 

was moving and doing what they supposed to be doing 

the bitch should have been dead already.

[COUSIN]: I can't do it for them I can't make them get 

I can't make them get busy you knew who you is dealing 

with I can't make them get out there and get busy I can't 

definitely get out there and do the type of shit that they 

can do (inaudible)

[DEFENDANT]: Yeah I know but you can get me out 

of here so I can handle what I gotta handle that's my 

whole thing that's my whole thing I'm not worried about 

nobody else

. . . .

[DEFENDANT]: Hey no . . . if I was out here for one 

day or one week . . . it does not matter my case will be 

better

[COUSIN]: This is five racks you talking about 

(inaudible) five dollars this is [five] racks you talk 

about

[DEFENDANT]: It's five racks and this is my fucking 

life . . . but nobody but nobody's you gun go did the 

bitch who's gonna do something to the bitch cause she's 

still swinging

[COUSIN]: Oh my god
29 A-0215-15T2

[DEFENDANT]: She's still swinging. Yo everybody 

knows where she's at but nothings going on, nothings 

going on like this shit is this shit is crazy yo oh man 

aright yo aright this shit is crazy . . .

. . . .

[DEFENDANT]: Shit, like this shit is crazy like 

motherfuckers is out there somebody should of went 

and downt that bitch already, like this bitch (inaudible)

. . . .

[DEFENDANT]: I am bugging and tripping cause ain't 

nobody getting out their fucking bed to go knock this 

bitch off count or say anything to the bitch, none of that 

nobody's going none of that everybody's just swinging 

still partying and bullshittin, but if it was them and they 

need the done shit would of got done, shit would have 

been done already like no if ands or buts about it.

. . . .

[DEFENDANT]: [I]f ya'll not gonna handle the 

situation, the [n-word] is just nervous and scared like 

the gun's gonna get turned on them which it might, like 

I have no problem with that, never did that's just me 

like fuck it but you know

Relying on these excerpts, the court denied defendant's motion for a judgment 

of acquittal on count nine. The court explained:

Based on that, at this posture, of course, all the . . . 

reasonable inferences go to the State, and . . . while it 

is not . . . I'm giving you x to do this, or I'm telling so 

and so that I told him to do that, obviously, the 

reasonable inferences that could be drawn from some 
30 A-0215-15T2

of those calls is that the order was put out and a step 

was taken and that he was upset that people hadn't done 

it yet. 

Defendant asserts that the phone conversations "merely convey[ed] 

[defendant's] reprehensible wish that death befell [A.A.]," but "[t]he attempted 

murder statute require[d] more than reprehensible wishes." Defendant asserts 

further that "[t]he State failed to present any evidence that defendant enlisted any 

specific person . . . to carry out the murder" or "promised remuneration or any other 

benefits to these unknown and unidentified persons in exchange for committing the 

offense." Thus, according to defendant, the State failed to establish that defendant 

"took any steps strongly corroborative of his criminal purpose." We agree. 

In State v. Urcinoli, 321 N.J. Super. 519, 537 (App. Div. 1999), we determined 

that the defendant's conversations constituted a substantial step sufficient for an 

attempted murder charge where the defendant hired a fellow inmate to kill the State's 

witness against him. Expecting the inmate to be released soon, the defendant 

discussed with the inmate how the plan would be carried out and how the inmate 

would be paid for the murder. Ibid. The defendant also gave the inmate identifying 

details about the intended victim. Ibid. We found "[a] jury could reasonably 

conclude that by enlisting [the inmate] to his evil plan and providing information to 
31 A-0215-15T2

assist facilitating its purpose[,] . . . defendant took substantial steps to further the 

crime." Ibid.

Likewise, in Fornino, 223 N.J. Super. at 536-37, we determined the evidence 

was sufficient for the jury to conclude that the defendant had taken substantial steps 

to sustain an attempted murder conviction where he participated in a plan to 

effectuate the prison escape of his codefendant, that was thwarted when another 

inmate cooperated with prison officials. Because the codefendant was transported 

out of the prison on a regular basis for medical treatment, the plan called for the 

defendant to kill the guards who accompanied the codefendant on one of those trips. 

Id. at 533. To carry out the plan, the defendant had visited the doctors' office where 

the escape was supposed to occur and had surveyed a wooded area behind the office 

where the bodies of the murdered guards could be disposed. Id. at 538. He also 

arranged a meeting the night before the planned escape with the person he believed 

was to pay him for his part in the crime and he in fact accepted the agreed upon 

payment. Id. at 538-39. 

Similarly, in State v. Jovanovich, 174 N.J. Super. 435 (Resent. Panel 1980), 

aff'd 181 N.J. Super. 97 (App. Div. 1981), we held that an individual could be found 

guilty of attempted arson for soliciting a specific person to burn his building, offering 

payment and describing to the person the layout and type of construction of the 
32 A-0215-15T2

building. We reached this conclusion even though the defendant had not yet 

obtained the insurance on the premises, had not paid the person for the commission 

of the crime, and planned to stop the plan if foreclosure proceedings on the premises 

stopped. Id. at 438.

Here, although defendant's wishes were reprehensible, defendant's 

conversations fall short of the substantial step required for attempt under N.J.S.A. 

2C:5-1(a)(3). All that can be inferred from these conversations is defendant's intense 

disappointment that A.A. was still alive and his frustration with the circumstances 

that had befallen him. Without more, defendant's statements that A.A. should not 

be alive and that he would kill her if he were out on bail are insufficient evidence for 

the jury to conclude that defendant had taken a substantial step. Without evidence 

of an act by defendant identifying a perpetrator and orchestrating the requisite course 

of conduct to culminate in the commission of the crime, the State's proofs fall short.

Accordingly, we conclude the attempted murder conviction in count nine must 

be reversed. Therefore, we vacate the conviction on count nine and remand for 

resentencing. Because we remand for resentencing, we need not address defendant's 

challenge to his sentence.

Affirmed in part; reversed in part; and remanded for resentencing. We do not 

retain jurisdiction.