SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3772-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT WARREN,

Defendant-Appellant.

___________________________

Argued September 23, 2019 – Decided

Before Judges Fasciale, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 14-09-1558.

Elizabeth Cheryl Jarit, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Elizabeth Cheryl

Jarit of counsel and on the brief).

Erin M. Campbell, Assistant Prosecutor, argued the 

cause for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney; Alanna M. Jereb on the briefs).

Appellant filed a pro se supplemental brief

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

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

December 20. 2019
2

A-3772-16T4

PER CURIAM

Defendant Robert Warren appeals his conviction by jury of first-degree 

carjacking, N.J.S.A. 2C:15-2 (count one); second-degree burglary, N.J.S.A. 

2C:18-2 (count three); second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a) (count five); and three counts of third-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts six, seven and nine), and his 

concomitant sentence.

1

 In his merits brief, he argues:

POINT I

THE ADMISSION OF EXPERT TESTIMONY WHEN 

NOTICE WAS NOT PROVIDED BY THE STATE 

UNTIL MID-WAY THROUGH TRIAL, AND 

WHERE NO REPORT OR SUMMARY OF THE 

PROPOSED TESTIMONY WAS EVER PROVIDED, 

DEPRIVED [DEFENDANT] OF DUE PROCESS, A 

FAIR TRIAL, AND THE OPPORTUNITY TO 

CONFRONT THE WITNESS AGAINST HIM.

POINT II

THE OFFICER'S OPINION TESTIMONY THAT HE 

BELIEVED [DEFENDANT'S] CAR MATCHED 

THAT DRIVEN BY ONE OF THE SUSPECTS

1

 Defendant was found not guilty of first-degree robbery, N.J.S.A. 2C:15-1 

(count two). "The trial court granted defendant's motion for acquittal of one of 

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

eight)." The court merged defendant's conviction for second-degree possession 

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).
3

A-3772-16T4

VIOLATED N.J.R.E. 701 AND STATE V. MCLEAN, 

AND DEPRIVED [DEFENDANT] OF DUE 

PROCESS AND A FAIR TRIAL.

POINT III

[DEFENDANT]'S CONVICTION MUST BE 

REVERSED BECAUSE ALTHOUGH SEVERAL OF 

THE CHARGES WERE BASED ON A THEORY OF 

ATTEMPT, ATTEMPT WAS NEVER CORRECTLY 

DEFINED FOR THE JURY.

A. Failure to instruct the jury on the law of 

attempt concerning the carjacking charge 

requires reversal.

B. Because the court instructed the jury on the 

wrong theory of attempt on three counts of 

aggravated assault, reversal is required.

POINT IV

THE COURT'S IMPROPER CONSIDERATION OF 

[DEFENDANT]'S "REFUSAL" TO ADMIT GUILT, 

AND THE IMPOSITION OF DISPARATE 

SENTENCES, REQUIRE RESENTENCING.

A. Consideration of the defendant's failure to 

admit guilt in finding aggravating factor three 

violates [defendant]'s rights to remain silent and 

maintain his innocence, and contravenes the 

requirement that the State prove his guilt before 

a jury.

B. [Defendant]'s twenty-year sentence for 

carjacking is disparate with the fifteen-year 

sentence imposed on his codefendant, requiring 

resentencing.
4

A-3772-16T4

In a pro se supplemental letter brief he adds:

POINT [I]

THE TRIAL COURT COMMITTED PLAIN ERROR 

BY FAILING TO CLARIFY THAT A CHARGE OF 

CARJACKING REQUIRES AN INTENT TO STEAL 

THE CAR WHEN THE JURY SPECIFICALLY 

ASKED FOR CLARIFICATION OF THAT POINT 

OVER DEFENSE OBJECTION[.]

POINT [II]

THE CUMULATIVE ERRORS DEPRIVED

[DEFENDANT] A FAIR TRIAL[.]

Recognizing that "trial courts are vested with the discretion to fashion an 

appropriate sanction for a violation of discovery obligations," State v. 

Richardson, 452 N.J. Super. 124, 137 (2017) (citing State v. Dabas, 215 N.J. 

114, 141 (2013)), we determine the trial court abused its discretion in allowing

the State's fingerprint expert to testify and reverse.

The State alleged three of a group of men who were watching television 

in a North Bergen apartment left to get food. When they returned, codefendant 

Gregory Eady,2—who had earlier approached the three men at a Quik Mart—

and defendant accosted one of three men and forced him at gunpoint into the 

2

 Eady pleaded guilty to three counts and was sentenced to an aggregate fifteenyear State prison sentence, subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2
5

A-3772-16T4

apartment where others in the group had remained. Some of the group fled.

During the ensuing moments, defendants concertedly held the remaining men in 

the apartment at gunpoint, threatened to kill them if they did not reveal the 

location of money and marijuana, ransacked the apartment looking for same and, 

finding none, ripped a gold chain from a victim's neck. Thereafter, Eady and 

defendant saw one of the men who had fled the apartment looking in the 

apartment window. When they followed him outside, they came upon another 

of the men who had fled, chased him to his car and ordered him out of the car at 

gunpoint. The man accelerated and was able to shed defendant and Eady 

sequentially as they tried to enter his vehicle from opposite sides. They shot at 

him as he fled.

A detective who later processed the vehicle testified he lifted nine latent 

fingerprints. The State's fingerprint expert, Irene Williams, testified that two of 

the latent prints—one on the exterior passenger side and the other on the interior 

glass edge of a passenger-side window—matched defendant's fingerprints.

During argument outside the jury's presence on October 13, 2015—the 

third day of testimony—defendant's counsel objected to the impending 

testimony of the State's fingerprint expert. Defendant's counsel recounted that 
6

A-3772-16T4

on September 25, 2015,3the day of the trial call, the State provided a request for 

latent fingerprint examination form.

4

 Defendant's counsel conceded that she had

previously received in discovery

a report that was prepared by a police officer that 

indicated what the findings were. However, there was 

no comparison or any information such as that put in 

his report. And, for the record, that would be, I believe, 

Officer Vasquez's report. That would be Report 

Number 13. That is what was . . . provided in 

discovery. This other documentation was provided on 

September 25[].

She later explained the report provided in discovery "says that those . . . 

fingerprints came back to [defendant]" which the trial court clarified to mean 

"that AFIS5 had identified [defendant] as one of the fingerprint matches[.]"

During the ensuing colloquy with the trial court and assistant prosecutor,

3

 A footnote in defendant's merits brief reasserts that defense counsel did not 

receive the latent fingerprint examination until September 25, 2015. The trial 

court, however, found that the report was handed over September 21, 2015. The 

discrepancy does not affect our review.

4

 Counsel later said, "on September 25[] the State gave two documents call[ed] 

requests for latent fingerprint examination and this document, request for latent 

fingerprint examination, the State gave that in [c]ourt on September 25[]." Only

one request for latent fingerprint examination form was included in appellant's 

appendix. We see no mention in the record or the parties' briefs of a second 

report.

5

 AFIS is an acronym for the New Jersey State Police Automated Fingerprint 

Identification System.
7

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defense counsel protested that "Officer Vasquez only prepared a report -- a five[-

]line report . . . he says he confirmed this information," and that "Officer 

Vasquez never submitted anything in writing as to the test that he performed."

The assistant prosecutor retorted that "[t]he State was prepared to offer 

the testimony . . . of Detective Mendez[,] not Vasquez . . . [and] [t]hat [defense 

counsel] mistakenly identified as . . . the individual who verified the comparison 

that was conducted by the AFIS unit." The assistant prosecutor explained:

What I mean by that is that there's three . . . steps 

in the process. You have an initial individual who 

reviews the . . . latent fingerprint and . . . compares it to 

the inked fingerprint. You have a second individual 

who is Irene Williams, whose initials are on these 

documents, who then does her own analysis to either 

confirm, verify, or deny the fact that they were these 

. . . number of points.

This evidence here, Your Honor, which I'm 

pointing to, which is the request for latent fingerprint 

examination, was provided to defense counsel on 

September [21] and I have an evidence receipt for it. 

So she was not surprised during the trial. This has been 

with her since then.

And what Ms. Williams will testify here to today 

in . . . terms of what did she do with the comparison, 

the analysis that . . . took place. And she, once she's 

done, then . . . the packet comes back to North Bergen, 

which is where Detective Mendez did what he did. 

Reviewed it and verified the . . . results.
8

A-3772-16T4

He didn't have an additional report. He based his 

findings on the reports from AFIS.

From defense counsel's recollection that during the week prior, she said 

she would "not consent to anyone other than the actual person coming in here to 

testify," and from the trial court's direction to "the State to get somebody from 

AFIS to come here and testify," we deduce the defense objection was based on 

the fact that Mendez relied on the AFIS comparison and did not compare 

defendant's prints to any known prints, but based his findings on "reports from 

AFIS."6 As defense counsel represented, Mendez's short report contained "no 

comparison or any information such as that."

The State, instead of calling Mendez, forwarded defense counsel 

Williams's resume on Friday, October 9, 2015. Defendant's counsel objected to 

Williams being called as an expert witness because counsel had "no reports,

conclusions, or findings from this witness." Williams admitted during trial that 

her office does not "do written reports" which she said were "the responsibility 

of the police department" that submitted the fingerprints for analysis.

The trial court examined the request for latent fingerprint examination

form, confirmed that Williams's initials appeared at the bottom of the form as a

6

 We note neither party included Mendez's report in the record.
9

A-3772-16T4

person who conducted the comparison and found the fingerprints of the person 

who was linked to defendant's SBI number7 matched items six and nine on the 

report, "[fifty] points on one, [twenty-nine] on the other." The trial court 

concluded, although the "report"—the trial court's term for the request for latent 

fingerprint examination form—was not turned over until September 21, "there 

was not even an issue raised [as] to [its] lateness," and that the "issue was 

whether or not the defense was on sufficient notice as to what [Mendez] based 

his findings on." The court also found "the State had represented . . . they could 

call someone from AFIS" instead of Mendez "because the defense has the 

report" which the court believed contained "a discussion as to the number of 

matches -- points of comparison." The court's finding that the State opened on 

the previous Wednesday, October 7, 2015, that defendant's "fingerprints were 

found in the vehicle," led the court to conclude:

[C]learly the defense was on notice that 

fingerprints were a critical issue in this case. We 

received two weeks prior to trial the report from the 

State Police matching it to [defendant]. Defense 

certainly has had ample opportunity if they felt the need 

to request an adjournment or . . . certainly to get their 

own expert. I mean, certainly from the inception of this 

case the defense was in possession of documentation 

indicating AFIS had done a positive match.

7

 SBI is an acronym for State Bureau of Identification.
10 A-3772-16T4

I don't find there's been any unfair surprise and 

there's no prejudice to the defense by the report being 

turned over fourteen days in advance of trial, instead of 

thirty. The information was in . . . the possession of the 

defense well in advance of the trial date.

Rule 3:13-3(b)(1)(I) requires the State to provide discovery of the

names and addresses of each person whom the 

prosecutor expects to call to trial as an expert witness, 

the expert's qualifications, the subject matter on which 

the expert is expected to testify, a copy of the report, if 

any, of such expert witness, or if no report is prepared, 

a statement of the facts and opinions to which the expert 

is expected to testify and a summary of the grounds for 

each opinion. Except as otherwise provided in R. 3:10-

3, if this information is not furnished 30 days in 

advance of trial, the expert witness may, upon 

application by the defendant, be barred from testifying 

at trial.

It is abundantly clear from the record that Williams never prepared a 

report that complied with the Rule, an objection lodged early and often by 

defendant's counsel. Indeed, in the sidebar that took place on October 8, 2015, 

during the testimony of the detective who lifted the latent prints, the assistant 

prosecutor admitted State Police personnel told him they do not testify. The 

State, therefore, planned to call Mendez. The assistant prosecutor explained:

So, [Mendez] from the North Bergen Police 

Department is going to be testifying as to his 

verification on . . . these results. So, two different 

people had the State Police examine the fingerprints.
11 A-3772-16T4

First round is in Totowa. The second round is in 

Ewing. Once they obtain the match they send it back 

to the municipality for the local [police department] to 

do the verification of fingerprints. They . . . review it. 

They determine whether or not there's a match. And 

that's why I'm offering him as the expert to testify.

When the assistant prosecutor said Mendez did "his own independent 

comparison," defendant's counsel protested that the State "never gave anything 

that you're calling anybody as an expert." The trial court ended the discussion 

by simply directing cross-examination of the detective on the stand resume.

The discussion resumed on the next trial day, five days later. Defendant's 

counsel renewed her objection after Williams was revealed as the State's expert, 

explaining

[t]here's nothing for me to cross-examine on, because 

there's no reports. What [I did] receive is the AFIS hit 

back on September 21[], which indicates . . . how many 

points were done. There's . . . [n]o report that says this 

is what was done. This is how it was analyzed or 

anything.

Because counsel had "nothing from her, except something with I.W. written on 

the bottom," counsel requested a N.J.R.E. 104 hearing to inquire of Williams, 

before she testified, if she did "any independent review of the raw data and what 

her conclusions were."
12 A-3772-16T4

After the trial court declined that request, Williams testified to much more 

than was in the request for latent fingerprint examination. The expert first 

explained the first stage of her process—minutiae plotting—where each latent 

print submitted by the agency for analysis is examined under a magnifying glass 

to ensure that it is suitable for entry into the AFIS system. At least ten 

characteristics or points that distinguish one fingerprint from another—

bifurcations, dots, short ridges and enclosures—must be identified in order for 

a print to be suitable for entry. Once identified, the points are plotted on the 

scanned latent print.

Williams explained once the suitable print was entered into the AFIS 

database,

it goes through a system called matching. And what 

these matchers do, based on algorithms . . . it will take 

into consideration the placement of those minutiae 

points that we plotted, and it will go through hundreds 

of thousands of possible matches, and it'll give us 

twenty-five, possible, for each lift that we enter.

The next step, described by Williams as the verification part, entails the 

expert, "manually[—]with [his or her] eye and [a] magnifying glass"—to 

compare the identified points on the print returned by AFIS, which is attended 

by an assigned SBI number, to points in the same location on the latent print

until at least ten matches are found. She continued, a card in "another system
13 A-3772-16T4

called FARS" associated with the SBI number is printed; the expert then 

"highlight[s] the [f]inger [n]umber that we hit on."

Williams testified that she rechecks the work of her subordinates who 

initially review the prints, "whether it's a hit or not," and verifies their work. On 

cross-examination, she said she reviewed only those lifts and candidate prints 

that her subordinate said matched.

On direct examination, she reviewed the two latent prints lifted from the 

victim's vehicle and compared them to the print the computer program identified 

as one of the twenty-five possible candidates, narrowed by the finger number 

linked to the SBI number. She reviewed each of the points on each of the two

latent prints and candidate prints shown side-by-side, describing to the jury each 

short ridge, ending ridge, enclosure and bifurcation she said matched. Based on 

those comparisons, she opined each of the latent prints matched defendant's 

known prints.

In considering whether the trial court abused its discretion in allowing 

Williams to testify and refusing defense counsel's entreaty to examine the expert 

during a preliminary hearing, N.J.R.E. 104, we review the "[f]actors that should 

result in permitting the expert to testify[,] includ[ing] '(1) the absence of any 

design to mislead, (2) the absence of the element of surprise if the evidence is 
14 A-3772-16T4

admitted and (3) the absence of prejudice which would result from the admission 

of evidence.'" State v. Washington, 453 N.J. Super. 164, 191 (App. Div. 2018) 

(first alteration in original) (quoting State v. LaBrutto, 114 N.J. 187, 205 

(1989)).

We do not agree with the trial court that discovery provided to defendant 

obviated any surprise because it revealed defendant's prints were matched to 

those lifted from the victim's vehicle, and that defendant had enough time to 

retain his own expert. Nothing in the record demonstrates that the discovery 

provided anything except a conclusion regarding the matched prints. As the trial 

court found, the discovery revealed "AFIS had identified [defendant] as one of 

the fingerprint matches." Nothing provided in discovery, however, contained 

the basis for that conclusion. The methods employed in comparing the prints, 

as testified by Williams, were not included in the discovery.

We have consistently recognized the importance of providing an expert's 

analysis to the defense in advance of trial. In State v. Berezansky, we 

determined the State's failure to provide the defendant with the laboratory 

analysis in connection with a blood alcohol test deprived the defendant an 

adequate opportunity to challenge the results. 386 N.J. Super. 84, 94-95 (App. 

Div. 2006). In State v. Heisler, construing the notice and demand provisions of 
15 A-3772-16T4

N.J.S.A. 2C:35-19,8 we ruled the time period for a defendant to object to a Stateproffered notice of intent (NOI) to offer into evidence a laboratory certificate 

regarding the quantity and quality of drugs, runs not from the date the State

tenders the NOI, but from the date it provides the data supporting the NOI. 422 

N.J. Super. 399, 422 (App. Div. 2011). We observed, "if the defendant is unable 

to determine, because of the absence of laboratory data, whether there is a basis 

to wage a 'true contest' over the nature of the substance, then the defendant may 

lodge a protective objection," noting the Legislature's goals in enacting the 

statute, including enabling "defendants to make informed decisions regarding 

whether to object," id. at 416-17, would be undermined by such a practice, id.

at 422. And we have prohibited the use of net opinions, those without the whys 

and wherefores of the expert's conclusion. Quail v. Shop-Rite Supermarkets, 

8

 N.J.S.A. 2C:35-19(c) states:

Whenever a party intends to proffer in a criminal or 

quasi-criminal proceeding, a certificate executed

pursuant to this section, notice of an intent to proffer 

that certificate and all reports relating to the analysis in 

question, including a copy of the certificate, shall be 

conveyed to the opposing party or parties at least 20 

days before the proceeding begins. An opposing party 

who intends to object to the admission into evidence of 

a certificate shall give notice of objection and the 

grounds for the objection within 10 days upon receiving 

the adversary's notice of intent to proffer the certificate.
16 A-3772-16T4

Inc., 455 N.J. Super. 118, 132 (App. Div. 2018) ("The doctrine barring the 

admission at trial of net opinions is a 'corollary of [N.J.R.E. 703] . . . which 

forbids the admission into evidence of an expert's conclusions that are not 

supported by factual evidence or other data.'" (alterations in original) (quoting 

Townsend v. Pierre, 221 N.J. 36, 53-54 (2015))).

We note defense counsel conceded Detective Mendez's report, included 

with timely-provided discovery, disclosed that "fingerprints came back to" 

defendant, and that the request for latent fingerprint examination form, not 

provided until September 21, 2015, listed eight item numbers, the location where 

each was found in the victim's vehicle, candidate SBI numbers, finger numbers 

and what seems like the number of points found by an unknown examiner or 

database. Those documents, however, did not provide defendant with the length 

and breadth of information Williams testified to justifying her conclusion that 

the prints matched. That testimony—previously undisclosed—engendered the 

surprise element decried by the LaBrutto Court. 114 N.J. at 205.

Mendez's report, as the trial court found, simply reported the AFIS results. 

And, as we noted, there are only eight items listed on the request for latent 

fingerprint examination form. The detective said he lifted nine prints. Item six 

lists two fingers, numbers three and four, and notes "pass[enger] door ext[erior] 
17 A-3772-16T4

panel" in the comment section. The SBI number related to that entry does not 

match either SBI number listed next to items four and five which are the only 

entries associated with "pass[enger] door ext[erior] glass"; we do not see an 

entry for a print found on the interior glass of the passenger-side door.

Moreover, without the detailed analysis testified to by Williams, 

defendant and his counsel were not in a position to intelligently decide whether 

a defense expert was required or, if one was, to discuss the basis for the State's 

expert's opinion with his own expert. Further, until Williams testified, defendant 

was unaware that Williams did not analyze every print reviewed by her 

subordinate, or that a subordinate had performed an analysis. Defendant did not 

have an opportunity to explore the difference between the points listed in the 

request for latent fingerprint examination form and the reduced number testified 

to by Williams. As defense counsel said during her lengthy and strenuous 

objection prior to Williams taking the stand, "[t]here's nothing for me to crossexamine on, because there's no report . . . that says . . . what was done[;] that is,

how it was analyzed[.]"

 With the benefit of Williams's analysis, transcribed from her trial 

testimony, defendant proffered in his merits brief some of the areas that could 

have been explored on cross-examination if the basis for Williams's testimony 
18 A-3772-16T4

was disclosed in a report or N.J.R.E. 104 hearing, including adherence to 

forensic fingerprint examination standards requiring blind verification of 

previously obtained results and documentation of the steps taken when 

conducting the examination.9

As the State conceded in its merits brief, only one of the victims identified 

defendant as a perpetrator; three victims were unable to identify defendant as 

one of the two criminals, and their descriptions were either general or did not 

match defendant. Considering the divergent eyewitness-identification 

testimony relating to defendant, the fingerprint identification of defendant was 

key to the State's case, as evidenced by the State's summation. Recognizing the 

vulnerability of the eyewitness identifications, the assistant prosecutor 

characterized the fingerprint evidence as "the one indisputable fact in this case,"

and "the defining moment" upon which the jury should find defendant guilty.

 We determine the State's failure to provide the expert's report prejudiced 

defendant, recognizing "'[p]rejudice' in this context refers not to the impact of 

9

 We do not offer any opinion on the propriety of all standards defendant 

contends were violated, noting only those that we discern could have been used 

to cross-examine Williams during the defendant's trial. We leave evidentiary 

rulings to the trial judge, to be made in the context of any future trial. See State 

v. Green, 236 N.J. 71, 80-81 (2018) ("[T]he admissibility of evidence at trial is 

left to 'the sound discretion of the trial court.'" (quoting State v. Willis, 225 N.J. 

85, 96 (2016))).
19 A-3772-16T4

the testimony itself, but the aggrieved party's inability to contest the testimony 

because of late notice." Washington, 453 N.J. Super. at 191 (quoting Heisler, 

422 N.J. Super. at 415.)

Although we do not ascertain that the State set out to mislead defendant, 

the assistant prosecutor admitted to the trial court that the State intended to call 

Detective Mendez as its fingerprint expert. The trial court recalled that when 

defendant raised an issue about the sufficiency of the notice provided regarding 

Mendez's findings, "the State had said, and this may have been in chambers, but 

the State had represented . . . they could call someone from AFIS instead, 

because the defense has the [request for latent fingerprint examination form]." 

The assistant prosecutor had previously told the trial court that he was advised 

"the New Jersey State Police . . . said they don't testify." It is apparent, therefore, 

that the State did not initially intend to call Williams as its expert. While there

is no evidence that the State intended to mislead the defense, its sudden change 

of plans resulted in its failure to provide Williams's report.

Considering the tripartite LaBrutto factors, we conclude the trial court 

abused its discretion by allowing the State to present Williams's testimony 

without providing any report, especially after denying defense counsel an 

opportunity to learn the basis for Williams's opinions at an immediate N.J.R.E. 
20 A-3772-16T4

104 hearing, which did not, in itself, require a continuance beyond the length of 

the hearing that could have taken place that day. See Washington, 453 N.J. 

Super. at 190-91. As such, we are constrained to reverse and remand this matter 

for a new trial. In light of the possibility of that trial, we offer the following 

comments regarding some of the issues raised during the last trial.

As to the use by Williams of the AFIS report, we note our prior holding 

that "hearsay statements upon which an expert relies are admissible, not for 

establishing the truth of their contents, but to apprise the jury of the basis of the 

opinion reached." State v. Humanik, 199 N.J. Super. 283, 305 (App. Div. 1985).

We also note that the trial court sustained defendant's objection to Williams's 

testimony that her subordinate found more points of comparison than she, but 

the court did not strike that testimony. It should have so the jury knew it could 

not consider that testimony in its deliberations.

We also caution against the State eliciting a law enforcement officer's 

testimony that a car viewed on a surveillance video "matched the description of 

the . . . vehicle that was involved in the incident," or that a detective observed 

defendant driving a vehicle "similar" to that seen on the video. The detective, 

testifying as a lay witness, could identify vehicles in still photographs or video 

based on his perceptions, see State v. McLean, 205 N.J. 438, 459 (2011), but he 
21 A-3772-16T4

is in no better position than the jury to compare depictions of vehicles than 

jurors, see id. at 462. Matters "within the competence of the jury" are for the 

collective wisdom of the jury to assess. See State v. Sowell, 213 N.J. 89, 99 

(2013).

Although the model jury charge for carjacking does not explicitly require 

the trial court to include the definition of attempt, see Model Jury Charges 

(Criminal), "Carjacking (N.J.S.A. 2C:15-2)" (rev. June 13, 2005), the better 

course would be to provide the attempt instruction because this case involved 

the perpetrators' "attempt to commit an unlawful taking of a motor vehicle," 

N.J.S.A. 2C:15-2(a), not a completed theft. See State v. Gonzalez, 318 N.J. 

Super. 527, 535-37 (App. Div. 1999). An accurate instruction on this material 

portion of the carjacking statute would provide a better roadmap for the jury in 

its deliberations. Id. at 535.

We also agree with defendant that the trial court should have instructed 

the jury using the substantial step portion of the attempt jury charge in 

connection with the aggravated assault counts.10 For those counts where the

10

 As we described by State v. Condon, there are three types of attempt

recognized by statute:
22 A-3772-16T4

State contends the aggravated assault was not completed, the substantial step 

instruction is appropriate. Condon, 391 N.J. Super. at 617.

Finally, we have previously warned against the use of a defendant's refusal 

to admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514, 

540 (App. Div. 1985) (noting our "view that a defendant's refusal to

acknowledge guilt following a conviction is generally not a germane factor in 

the sentencing decision"). We note, however, that when a defendant fails to take 

responsibility in the context of an underlying factor of a crime, it may be used 

to find an aggravating factor. See State v. Carey, 168 N.J. 413, 426-27 (2001) 

(holding a trial court's finding that defendant was a risk to commit another 

offense, N.J.S.A. 2C:44-1(a)(3), was supported by the defendant's letter in 

The first category, [impossibility,] . . . is "where the 

criminal act is complete but for the attendant 

circumstances which did not coincide with the actor's 

reasonable belief"; the second, [when causing a 

particular result is an element of the crime,] . . . is 

"where the criminal act is very nearly complete and 

requires one more step either beyond the actor's control 

or not requiring his control for completion"; and the 

third, [substantial step,] . . . is "where the actor has 

taken a substantial step toward commission of a crime."

[391 N.J. Super. 609, 615-616 (App. Div. 2007) 

(citations omitted) (quoting Cannel, N.J. Criminal Code 

Annotated, comment 2 on N.J.S.A. 2C:5-1 (2006)).]
23 A-3772-16T4

which he "expresse[d] remorse, but [did] not directly accept responsibility for 

the crash or admit that he ha[d] a problem of drinking and driving").

In light of our decision, we need not address defendant's remaining 

arguments. Reversed and remanded for proceedings consistent with this 

opinion. We do not retain jurisdiction.