SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4100-16T1

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

SADOT COUNCIL, a/k/a 

WATSON SADOT, COUNCIL 

SADOT, KAREM A. WATSON,

and SADAT A. WATSON, 

Defendant-Appellant.

_____________________________

Argued November 8, 2018 – Decided July 25, 2019

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 15-08-1859.

Cody T. Mason, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Cody T. Mason, of counsel 

and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/

Acting Assistant Prosecutor, argued the cause for 

respondent (Theodore N. Stephens II, Acting Essex 

NOT FOR PUBLICATION WITHOUT THE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

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County Prosecutor, attorney; Lucille M. Rosano, of 

counsel and on the brief).

Appellant filed a pro se supplemental brief. 

PER CURIAM

Defendant Sadot Council appeals from his convictions following a jury 

trial for murder and weapons offenses and the life sentence imposed by the court. 

Based on our review of the record in light of the applicable law, we are 

convinced that the cumulative effect of errors committed during the trial had the 

probable effect of rendering the trial unfair, and reverse. 

I.

On April 28, 2015, Anthony Mayse died after being shot twice at a Newark 

housing complex. On May 8, 2015, defendant was arrested in connection with 

the shooting, and later charged in an indictment with one count of first-degree 

murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one), second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), and seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three).1

 

1

 Although not included in the record on appeal, the parties acknowledge and 

do not dispute that defendant was charged in a separate indictment with seconddegree certain persons not permitted to have weapons, N.J.S.A. 2C:39-7(b). The 

indictment was dismissed at the State's request following defendant's conviction 

on the charges that are the subject of this appeal. 
3

A-4100-16T1

Prior to trial, defendant moved to suppress the out-of-court identifications 

made by three purported witnesses to the shooting, Nolie Clark, Jullisa Perna 

and a then sixteen-year-old juvenile, J.S., and requested a Wade/Henderson2

hearing. Defendant claimed he was entitled to a hearing because Clark described 

the shooter as a dark-skinned African-American male but the photo arrays used 

during the separate identification procedures included photos depicting lightskinned African-American males, and J.S. refused to sign the photograph of 

defendant she selected during the procedure.

In a written opinion and order, the court denied the request for a hearing, 

finding defendant failed to demonstrate any evidence of suggestiveness in the 

photo identification procedures. The court reviewed the photo arrays and 

determined they included individuals with similar physical characteristics and 

were not otherwise suggestive. The court rejected the contention that J.S.'s 

refusal to sign the photograph she selected was evidence of suggestiveness. 

During the subsequent jury trial, the State presented evidence showing 

that on April 28, 2015, Mayse suffered from two gunshot wounds, one of which 

perforated his heart and caused his death. The shots were fired from a .32 caliber 

 

2

 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 

(2011).
4

A-4100-16T1

handgun, but it could not be determined if the handgun was a semi-automatic or 

a revolver.

The identification of defendant as the shooter rested on the testimony of 

the three purported eyewitnesses: Perna, Clark and J.S. Perna testified she had 

known defendant and Mayse since 2000. She was close to Mayse and he viewed 

her as a maternal figure. She let him use her apartment at the housing complex 

to sell drugs, and he gave her drugs. According to Perna, on the evening prior 

to the shooting, she witnessed a verbal altercation between defendant and Mayse 

during which defendant said he would "blow [Mayse's] fucking head off." It 

was shown, however, that in her June 9, 2015 statement to the police, she 

reported that defendant said he would "knock [Mayse's] fucking head off, blow 

his fucking head off, actually." 

Perna expected Mayse at her apartment on the morning of April 28, 2015,

but he did not appear. In the early afternoon, she was told defendant and Mayse 

were fighting. She immediately left her apartment and observed defendant 

riding a bicycle in the direction of his apartment in the complex and then return, 

again riding on a bicycle. He was not wearing a shirt. She testified defendant 

had a silver revolver in his hand and that she saw defendant shoot Mayse, but 

on cross-examination admitted she reported the gun was a black automatic 
5

A-4100-16T1

weapon in a June 9, 2015 statement to the police. After witnessing the shooting, 

Perna ran back to her apartment. 

Perna first spoke to the police more than six weeks after the shooting when 

she provided her June 9, 2015 statement. On that date she also reviewed a photo 

array presented by an officer who had no knowledge of the case, selected

defendant's photograph and identified him as the individual who shot Mayse. 

When the police arrived at the scene of the shooting, Clark told an officer 

he did not see the shooting because he was around the corner of a building when 

it occurred. He and J.S. later went together to the hospital where Mayse had 

been taken. Clark spoke to the police at the hospital and again said he did not 

witness the shooting.

During a recorded statement with the police two days after the shooting, 

Clark said he witnessed a physical altercation between Mayse and defendant, 

and observed defendant leave the scene and return on a bicycle and shoot Mayse

twice with a handgun. At trial, Clark testified he could not recall what occurred 

at the housing complex on April 28, 2015, but the court conducted a Gross3

hearing, determined his memory loss was feigned, and permitted the State to 

 

3

 State v. Gross, 121 N.J. 1 (1990).
6

A-4100-16T1

play a video recording of the statement he gave to the police on April 30, 2015, 

two days after the shooting.

In his recorded statement, Clark explained he and Mayse had known each 

other for two years prior to the shooting. They arrived together at the housing 

complex prior to the shooting. Following their arrival, Mayse and an individual

Clark identified in a photo identification procedure as defendant had a physical 

altercation. Clark described defendant as a skinny, brown-skinned male with 

"dreads" who, following the altercation, was not wearing a shirt. Clark further 

explained that after the physical altercation ended, defendant left the scene on a 

bicycle, returned a short time later on the bicycle, shot defendant two times and 

then departed. In his statement, Clark said that after the shooting he was "busy 

worrying about" Mayse and could not recall if defendant left the scene of the 

shooting on a bicycle. According to Clark, he and J.S. attempted to aid Mayse

after the shooting.

The jury was shown the video recording of Clark's statement, as well as 

the recording of the photo array identification procedure during which Clark 

selected defendant's photograph and identified defendant as the shooter. At trial, 

Clark acknowledged signing defendant's photo and identifying him as the 

shooter during the photo identification procedure.
7

A-4100-16T1

J.S. testified she was friends with Mayse and met him at the housing 

complex when he arrived with Clark on April 28, 2015. She also testified that 

Mayse and a person she identified as defendant during a photo identification 

procedure had a physical altercation. She observed defendant leave the scene 

of the altercation on a bicycle, return a short time later on the bicycle and shoot 

defendant with what she described as a .32 caliber silver revolver. J.S. said

defendant was not wearing a shirt.

She acknowledged that when she spoke to the police on April 28, 2015,

immediately after the shooting, she said she did not see the shooting. She 

testified she denied seeing the shooting at that time because she feared being 

identified as a "snitch."

J.S. identified defendant as the shooter on April 29, 2015, by selecting his 

photo from an array of six photographs shown to her by a police detective who 

had no prior knowledge concerning the case or investigation. The recorded 

photo identification procedure was played for the jury. During the trial, J.S. also 

identified defendant in still photographs taken from a surveillance video of the 

area surrounding the scene of the murder immediately before and after the 

murder. The shooting, however, was not captured on the surveillance 

recordings.
8

A-4100-16T1

Essex County Prosecutor's Office Detective Bruce Branch, the lead 

detective in the investigation of Mayse's murder, detailed the investigation,

including his review of various surveillance camera video recordings of the 

housing complex areas where the physical altercation and murder occurred. 

Detective Branch explained that murder charges were filed against defendant on 

May 1, 2015, and defendant was arrested on May 8, 2015, after turning himself 

in to the police. 

The State presented other witnesses, including Dr. Andrew Falzon, the 

State Medical Examiner, who testified Mayse died as a result of the perforation 

of his heart and internal bleeding from one of the gunshot wounds. He also 

testified Mayse was struck by another gunshot, but it caused only soft tissue

injuries. A ballistics expert testified that the two bullets recovered from Mayse's 

body were fired from a .32 caliber handgun, but it could not be determined if 

the gun was a revolver or semi-automatic. 

Defendant called Newark Police Officer Edwin Padilla. He testified he 

was dispatched to the scene of the shooting. When Padilla arrived, he observed 

Clark providing aid to Mayse. Padilla explained Clark denied seeing the 

shooting and said that after the shooting he observed a group of males running 

away. 
9

A-4100-16T1

The jury convicted defendant of murder, possession of a firearm and 

possession of a firearm for an unlawful purpose. The State moved for imposition 

of a mandatory extended term sentence on the murder charge based on 

defendant's prior record. See N.J.S.A. 2C:43-7.1(b)(2). The court granted the 

State's motion and imposed an aggregate life sentence subject to the 

requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This 

appeal followed.

Defendant's counsel presents the following arguments for our 

consideration:

POINT I

REVERSAL IS REQUIRED BECAUSE THE STATE 

PRESENTED INADMISSIBLE TESTIMONY 

ABOUT UNNAMED WITNESSES IMPLICATING 

DEFENDANT, AND A DETECTIVE'S OPINION 

ABOUT WHO WAS PRESENT DURING THE 

SHOOTING. (Not Raised Below)

A. Reversal Is Required Because the State Relied on 

Prejudicial Hearsay About Unnamed Witnesses 

Implicating Defendant, Including in Summation. 

B. Reversal Is Required Because the State Relied on 

Prejudicial Opinion Testimony to Show a Witness and 

Defendant Were Present During the Shooting.
10 A-4100-16T1

POINT II

REVERSAL IS REQUIRED BECAUSE THE TRIAL 

COURT WRONGLY INSTRUCTED THE JURY TO 

ONLY CONSIDER THE LESSER CHARGE OF 

PASSION/PROVOCATION MANSLAUGHTER IF IT 

FIRST ACQUITTED DEFENDANT OF MURDER.

(Not Raised Below)

POINT III

THE CONVICTIONS MUST BE REVERSED 

BECAUSE THE STATE DID NOT RECORD THE 

WITNESSES' LEVELS OF CERTAINTY 

REGARDING THEIR OUT-OF-COURT 

IDENTIFICATIONS . . . AND THE TRIAL COURT 

DID NOT CHARGE THE JURY ON THAT 

OMISSION. (Not Raised Below)

POINT IV

THE PROSECUTOR ENGAGED IN REVERSIBLE

MISCONDUCT WHEN HE REPLAYED THE 

WITNESSES' VIDEO STATEMENTS IN 

SUMMATION, MADE UNSUPPORTED 

COMMENTS ABOUT THE WITNESSES' FEAR OF 

SNITCHING, VOUCHED FOR THE WITNESSES,

DISPARAGED THE DEFENSE . . . AND MADE 

UNSUPPORTED COMMENTS ABOUT THE FIGHT.

(Partially Raised Below)

A. The Prosecutor Improperly Replayed Video of Key 

Pretrial Witness Statements During Summation.

B. The Prosecutor Unfairly Bolstered the Credibility of 

the State's Witnesses with Unsupported Comments 

About their Fear of Being Labeled as Snitches.
11 A-4100-16T1

C. The Prosecutor Committed Misconduct When He 

Made Unsupported Statements that Defendant Started 

the Fight and Received a Call to Confront the Decedent.

D. The Prosecutor Committed Misconduct When He 

Framed a Guilty Verdict as the "True" Result, 

Disparaged the Defense, and Vouched for the State's 

Witnesses.

POINT V 

REVERSAL IS REQUIRED BECAUSE THE STATE 

RELIED ON EVIDENCE IRRELEVANT TO FLIGHT 

TO ARGUE CONSCIOUSNESS OF GUILT, AND 

THE COURT PROVIDED AN INCOMPLETE 

FLIGHT CHARGE. (Partially Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF THE TRIAL 

ERRORS DEPRIVED DEFENDANT OF DUE 

PROCESS AND A FAIR TRIAL AND WARRANTS 

REVERSAL OF HIS CONVICTIONS. (Not Raised 

Below)

POINT VII

A REMAND FOR RESENTENCING IS REQUIRED 

BECAUSE THE COURT DID NOT ADEQUATELY 

EXPLAIN THE SENTENCE, LIMITED 

DEFENDANT'S ALLOCUTION WITHOUT 

EXPLANATION, AND IMPOSED A $200,000 FINE 

WITHOUT MAKING APPROPRIATE FINDINGS.

A. A Remand Is Required Because the Court Did Not

Adequately Explain the Sentence Imposed.
12 A-4100-16T1

B. Resentencing Is Required Because the Court, 

Without Explanation, Denied Defendant's Request to 

Further Allocute in Response to the Prosecutor.

C. A Remand Is Required Because the Court Did Not 

Make Any Findings Regarding Defendant's Ability to 

Pay $200,000 in Discretionary Fines.

In his pro se supplemental brief, defendant presents the following 

arguments:

POINT I

CONVICTION WAS ACHIEVED BY 

PROSECUTORIAL MISCONDUCT IN VIOLATION 

TO DUE PROCESS. THE STATE DID NOT 

ESTABLISH "EVERY" ELEMENT [BEYOND]

REASONABLE DOUBT REQUIRES REVERSAL[.]

A. A timely objection was not made reversal is 

requi[r]ed because it was prejudicial to use of the photo 

marked S20 to build the State's case by the use of the

testimonial privile[]ge [.]

B. Prosecutorial Misconduct Administered by the State 

in Defendant's trial; where the State made Multiple 

improper prejudicial [comments] during Summations[.]

POINT II

REVERSAL IS REQUIRED DIRECTING THE 

TRIAL COURT TO REVOKE THE IMPOSED FINES, 

AND ASSES[S]MENTS . . . DUE TO ABUSE OF 

DISCRETION. BECAUSE THE DEFENDANT IS 

UNABLE TO PAY, AND SUCH IMPOSITIONS ARE 

ILLEGAL SENTENCES DISPOSED WITHOUT

HOLDING A HEARING FOR ABILITY TO PAY, 
13 A-4100-16T1

WHICH ESTABLISH "CONSTITUTIONAL"

ERROR, AND REQUIRES REVOCATION IN 

"WHOLE"[.]

POINT III

THE TRIAL JUDGE ERRED IN CHARGING 

FLIGHT TO THE JURY AS THERE WAS 

INSUFFICIENT EVIDENCE TO SUPPORT THE 

INFERENCE THAT THE DEFENDANT'S 

ABS[]ENCE WAS A RESULT OF 

CON[S]CIOUSNESS OF GUILT, ESPECIALLY 

WHERE THE DEFENDANT'S KNOW[N] PLACES 

TO RESIDE [WERE] NOT INVESTIGATED AND 

WHERE DEFENDANT TURNED HIMSELF INTO 

AUTHORITIES ONCE HE BECAME AWARE THAT 

HE WAS A "SUSPECT" FOR THE CRIMES IN THE 

INSTANT CONVICTION. THUS DEFENDANT WAS 

DENIED A FAIR TRIAL[.]

POINT IV

RIGHT TO CONFRONTATION GUARANTEED BY 

THE SIXTH AMENDMENT WAS VIOLATED 

WHEN TRIAL COURT ALLOWED THE HEARSAY 

TESTIMONY OF DETECTIVE BRUCE BRANCH TO 

REPORT THAT HE QUESTIONED 

INFORMANTS . . . DISCLOSED THOSE FACTS TO 

THE JURY, BUT DEFENDANT WAS DEPRIVED TO 

CROSS-EXAMINE THOSE INFORMANTS, 

BECAUSE THEY DID NOT APPEAR IN COURT TO 

TESTIFY[.]

POINT V

THE TESTIMONY OF DR. ANDREW 

FALSON . . . THE SPOKESMAN AS THE STATE'S 

EXPERT . . . DID NOT PREPARE THE AUTOPSY 
14 A-4100-16T1

REPORT FINDINGS OF DR. ABRAHAM 

PHILLIP . . . THIS SPOLIATION OF DUE 

PROCESS, ALLOWED ONLY "NET OPINION"

TESTIMONY INSTEAD OF "FACTUAL"

TESTIMONY INFRINGED UPON THE 

DEFENDANT'S SIXTH AMENDMENT RIGHT OF 

CONFRONTATION, WITH THE ACTUAL 

MEDICAL EXAMINER WHO PREPARED THE 

AUTOPSY REPORT, CONSTITUTES TO 

CONSTIT[]UTIONAL ERROR[.]

POINT VI

TRIAL COURT SHOULD HAVE NOT DENIED 

DEFENDANT'S WADE/HENDERSON

HEARING . . . AS A RESULT THE TRIAL COURT 

ABUSED IT[]S DISCRETION WHEN IT ERRED BY 

ALLOWING THREE OF THE STATE'S WITNESSES 

TO TESTIFY AT APPELLANT'S TRIAL, WHERE 

THE COURT AND STATE ALREADY WERE 

AWARE . . . THAT THE WITNESS WOULD 

EITHER TESTIFY INCONSISTENTLY TO THEIR 

PRIOR STATEMENTS . . . OR TESTIFY THAT 

THEY DID NOT REMEMBER THEIR PRIOR 

STATEMENTS EVER BEING GIVEN, 

ESTABLISHING PERJURED TESTIMONIES, AND 

THE STATE PROSECUTION HAVING 

"KNOWLE[D]GE" AND FAILING TO CORRECT 

SUCH PERJURED TESTIMONIES DENIED 

APPELLANT'S RIGHTS OF DUE PROCESS AND 

TO A FAIR TRIAL[.]

A. Inconsistent Testimony with out of court 

Statements[.]

B. State's Prosecutor's Knowing Use of Perjured 

Testimonies[.]
15 A-4100-16T1

POINT VII

A COURT REVIEWING A CLAIM OF ACTUAL 

INNOCENCE MUST EXAMINE THE RECORDS AS 

A WHOLE- "'ALL THE EVIDENCE.' OLD AND 

NEW". THE EVIDENCE IS INSUFFICIENT TO 

WARRANT A CONTINUED CONVICTION 

OBTAINED BY NEPOTISM. REVERSAL IS 

NECESSARY TO DIRECT THE TRIAL COURT 

VACATE THE JUDGMENT OF CONVICTION, AND 

TO DIRECT THE ENTRY OF A NEW JUDGMENT 

OF ACQUITTAL . . . N.J. CONST. ART. I, PAR. 6; 

N.J. CONST. ART VI § 4, BECAUSE THE 

DEFENDANT IS ACTUALLY INNOCENT[.]

POINT VIII

THE TOTALITY OF THE CLAIMS RAISED ON 

THIS APPEAL CONCLUDE THAT THE 

SENTENCING COURT COMMITTED A CLEAR 

ABUSE OF DISCRETION. NERA "SHALL NOT 

APPLY" PURSUANT TO N.J.S.A. 2C:43-7(c). 

IMPOSITION OF DEFENDANT'S SENTENCE 

BEYOND THE STATUTORY MAXIMUM BASED 

ON JUDICIAL FACT-FINDING OF 

AGGRAVATING FACTORS . . . WHICH WAS 

NEVER ADMITTED TO BY DEFENDANT OR 

SUBMITTED TO A JURY AND PROVED BEYOND 

A REASONABLE DOUBT VIOLATED BOTH HIS 

STATE AND FEDERAL CONSTITUTIONAL 

RIGHTS. THERE ARE SUBSTANTIAL 

MITIGATING FACTORS IN THIS CASE. . . . AS A 

RESULT THE TRIAL COURT IMPOSED AN 

ILLEGAL SENTENCE REQUIRES THAT THE 

CONVICTION BE VACATED AND REVERSED TO 

THE TRIAL COURT[.]
16 A-4100-16T1

A. The defendant expressed his remorse and the court 

had no consideration to it and imposed an illegal 

sentence.

B. Weapon's violations are not subject to NERA[.]

C. Defendant's last release from confinement was on 

November 27, 2014, there are no records of two or more 

prior convictions from that date. The court misapplied 

NERA to impose an illegal sentence

D. The Judicial fact-finding of aggravating factors 

which was never admitted to by the defendant or 

submitted to a jury and proved beyond reasonable doubt 

violated both his state and federal constitutional rights.

E. There are substantial mitigating factors.

F. The sentencing court committed a clear abuse of 

discretion[.]

POINT IX

THE CUMULATIVE ERRORS IN POINTS I 

THROUGH POINT VIII, HEREBY ESTABLISH THE 

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL 

AND VIOLATED HIS RIGHT OF DUE PROCESS 

GUARANTEED BY THE U.S. CONST. AMEND. 

XIV, § 1, TOWARDS DEFENDING HIS RIGHT OF 

LIFE AND LIBERTY, GUARANTEED BY N.J. 

CONST. ART. I PAR. 1[.]

II.

Defendant challenges his conviction based on numerous claims 

concerning alleged errors by the trial court, almost all of which were not raised 
17 A-4100-16T1

before the trial court. Therefore, unless otherwise noted, we consider the alleged 

errors under the plain error standard. R. 2:10-2. "A defendant who does not 

raise an issue before a trial court bears the burden of establishing that the trial 

court's actions constituted plain error" because "to rerun a trial when the error 

could easily have been cured on request[ ] would reward the litigant who suffers 

an error for tactical advantage either in the trial or on appeal." State v. 

Santamaria, 236 N.J 390, 404-05 (2019) (quoting State v. Ross, 229 N.J. 389, 

407 (2017)). 

Under the plain error standard's "high bar," id. at 404, "[w]e may 

reverse . . . only if the error was 'clearly capable of producing an unjust result,'" 

Ross, 229 N.J. at 407 (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. 

Williams, 168 N.J. 323, 336 (2001)). 

Although we are compelled to assess most of defendant's arguments under 

the plain error standard, we must also consider the cumulative effect these errors 

had on defendant's fundamental right to a fair trial. State v. Jenewicz, 193 N.J. 

440, 473 (2008). In doing so, we must determine whether "the probable effect 

of the cumulative error was to render the underlying trial unfair," State v. 
18 A-4100-16T1

Wakefield, 190 N.J. 397, 538 (2007), thereby "dictat[ing] the grant of a new trial

before an impartial jury," ibid. (quoting State v. Orecchio, 16 N.J. 125, 129 

(1954)). 

A.

Defendant contends the prosecutor violated his rights under the 

Confrontation Clause of the United States Constitution, U.S. Const. amends VI, 

XIV, and New Jersey Constitution, N.J. Const. art. I, ¶¶ 1, 9, 10, as well as our 

hearsay rule, N.J.R.E. 802, by presenting evidence and making argument in 

summation implying that unnamed individuals who did not testify at trial 

provided information to the police implicating him in Mayse's murder. More 

particularly, he argues the prosecutor impermissibly elicited testimony from 

Detective Branch suggesting that unnamed individuals provided information 

that led to the identification of defendant as a suspect. Defendant further asserts

the prosecutor reinforced the notion that other non-testifying witnesses 

identified defendant as the shooter in comments made during his summation. 

On April 28, 2015, the day Mayse was shot and killed, Clark and J.S. 

denied witnessing the shooting to officers at the scene and again later to 

Detective Branch at the hospital. Detective Branch testified that after leaving 

the hospital, he canvassed the apartments in the area of the shooting for 
19 A-4100-16T1

witnesses. Detective Branch testified that he spoke with individuals who were 

willing to provide him with information, but unwilling to provide their names

or appear at the prosecutor's office to "give statements." Detective Branch

further explained that he identified surveillance cameras he believed might have 

recorded events relevant to the investigation, obtained recordings from those 

cameras and reviewed them. 

For the first time on appeal, defendant challenges Detective Branch's 

testimony that defendant was already a suspect when he reviewed the recordings 

and that he reviewed the recordings for the purpose of looking for defendant:

[Q]: Now, at a certain point, you also became aware of 

[defendant] as your suspect in the case; is that correct?

[A]: Yes.

[Q]: Were you—did you put—as you reviewed those 

videos, were you looking for [defendant] on those 

videos?

[A]: Uh, yes.

[Q]: Did you find [defendant] on some of those videos?

[A]: Yes.

[Q]: And, as you were watching those videos, did you 

find anybody else who matched his description in terms 

of clothing, build, hairstyle, around that time in that

area?
20 A-4100-16T1

[A]: Yes.

[Q]: Were there other people, beside [defendant], who 

fit that description as the suspect?

[A]: Uh, the description of [defendant]?

[Q]: Yes. So, aside from [defendant], were there other 

people on those videos who looked like [defendant], 

[who] would be easily confused for him?

[A]: No.

Defendant contends Detective Branch's testimony that he canvassed the 

area, spoke with witnesses who were willing to provide information but not their 

names or formal statements, and later reviewed the video recordings looking for 

defendant as the suspect leads to the inescapable conclusion that non-testifying 

witnesses identified defendant as the shooter. Defendant claims the testimony 

runs afoul of the principles established in State v. Bankston because it supports 

an inescapable inference that non-testifying witnesses identified defendant as 

the perpetrator of the offenses for which he was charged. 63 N.J. 263, 268-69 

(1973).

The State argues the prosecutor elicited testimony from Detective Branch 

about his "unsuccessful canvasses for additional witnesses to show Detective 

Branch conducted a thorough investigation, left no stone unturned and did not 

arbitrarily target defendant." The State also contends Detective Branch's 
21 A-4100-16T1

identification of defendant as a suspect was based on "a trove of evidence,"

including J.S.'s and Clark's statements and physical descriptions of the shooter 

and Detective Branch's review of the video recordings, and that Detective 

Branch's testimony establishes he reviewed the recordings for defendant only 

after Clark and J.S. identified him. 

We reject the State's assertion that Detective Branch's challenged 

testimony does not identify the time he reviewed the recordings and, as a result, 

it could reasonably be inferred that Detective Branch's identification of 

defendant as a suspect was the product of the identifications of defendant 

provided by testifying witnesses—J.S. and Clark—in the days following the 

shooting. The assertion is contradicted by the record. 

The prosecutor asked Detective Branch about his review of the recordings 

with only a temporal reference to "a certain point," but Detective Branch's 

description of his investigation was linear and chronological and, when fairly 

read in context, shows he obtained a description of defendant and identified him 

as a suspect following his canvas of the apartments for witnesses and review of 

the recordings before any testifying witness identified defendant as the shooter 

or provided defendant's description. Indeed, the prosecutor understood that 

Detective Branch testified that he reviewed the recordings on April 28, 2015, 
22 A-4100-16T1

the day of the murder. Immediately after the challenged colloquy, the prosecutor 

instructed Detective Branch, "I'm going to draw your attention to the . . . next 

day, the morning of April 29th, 2015," and asked, "What did you do with regard 

to this—investigation that morning?" (Emphasis added). The only logical 

interpretation of Detective Branch's testimony is that he identified defendant as 

a suspect, obtained defendant's description and reviewed the recordings on April 

28, 2015, prior to the identification of defendant first made by J.S. on April 29 

and next by Clark on April 30.

"[B]oth the Confrontation Clause and the hearsay rule are violated when, 

at trial, a police officer conveys, directly or by inference, information from a 

non-testifying declarant to incriminate the defendant in the crime charged."

State v. Branch,

4 182 N.J. 338, 350 (2005) (citing Bankston, 63 N.J. at 268-69). 

Our Supreme Court has explained that the "common thread" running through 

Confrontation Clause jurisprudence "is that a police officer may not imply to the 

jury that he [or she] possesses superior knowledge, outside the record, that 

incriminates the defendant." Id. at 351. In addition, "[w]hen the logical 

implication to be drawn from the testimony leads the jury to believe that a non-

 

4

 The defendant in this Supreme Court opinion is not related to Detective 

Branch.
23 A-4100-16T1

testifying witness has given the police evidence of the accused's guilt, the 

testimony should be disallowed as hearsay." Bankston, 63 N.J. at 271; see also

State v. Irving, 114 N.J. 427, 446 (1989) (finding improper a police officer's 

testimony that after he canvassed the neighborhood looking for leads, "he 

focused on the defendant as the subject of his investigation and placed his 

picture in the [photo] array").

Here, the record is bereft of evidence that any testifying witness either 

identified defendant as the shooter or provided a description of defendant prior 

to Detective Branch's review of the recordings on April 28, 2015. To the 

contrary, on April 28 J.S. and Clark denied witnessing the shooting and did not 

identify or describe the shooter.

5

 Thus, Detective Branch's testimony that on 

April 28 he reviewed the recordings for defendant as a suspect and with a 

description of defendant supported an "inescapable inference" that nontestifying witnesses informed Detective Branch that defendant was the shooter 

and provided a description of defendant. Bankston, 63 N.J. at 271. As the Court 

observed in Branch, "the jury was left to speculate that the detective had superior 

knowledge through hearsay information implicating defendant in the crime[s]." 

 

5

 As noted, J.S. did not identify defendant as the shooter until April 29, 2015, 

and Clark did not provide a statement identifying defendant as the shooter until 

April 30, 2015.
24 A-4100-16T1

182 N.J. at 347-48. The trial court erred by allowing the testimony; its 

admission "violated defendant's federal and state rights to confrontation as well 

as our rules of evidence." Id. at 348. 

Detective Branch provided further support for the inference that nontestifying witnesses identified defendant as a suspect when he explained to the 

jury his selection of the photographs for the photo arrays shown to J.S., Clark 

and Perna. Detective Branch identified defendant as the suspect prior to his 

construction of the photo arrays shown to putative witnesses. And he expressly 

testified he included the suspect's picture in the photo array "[b]asically based 

on . . . sources or information" that he received "during [his] investigation." 

Because J.S. was the first testifying witness that identified defendant, Detective 

Branch's testimony concerning his decision to include the suspect's photo in the 

array also supported the inescapable inference that defendant, who Detective 

Branch said was the suspect, had been identified as the shooter based on "sources 

or information" from non-testifying witnesses.

In Branch, the Court observed that the reason an "officer place[s] the 

defendant's photograph in the array is of no relevance to the identification 

process and is highly prejudicial." 182 N.J. at 352. Yet that is precisely what 

Detective Branch did here; he "implied that he had information from an out-of-
25 A-4100-16T1

court source, known only to him, implicating defendant in the" crimes charged,

id. at 353, and "the jury heard irrelevant, 'gratuitous hearsay testimony' that 

violated defendant's right to confrontation and the rules of evidence," State v. 

Lazo, 209 N.J. 9, 21 (2012) (quoting Branch, 182 N.J. at 348). "By doing so, 

[Detective Branch] enhanced the [other witnesses'] credibility and intruded on 

the jury's role." Id. at 22.

Detective Branch's reliance on information provided by non-testifying 

witnesses to support his selection of defendant's photo for inclusion in the photo 

array shown to J.S. was not only clear from his testimony, it was further 

confirmed by the prosecutor during summation. Addressing Detective Branch's 

selection of the photograph, the prosecutor explained that "[t]here are limitations 

on what . . . [Detective] Branch can testify to, based [on] the evidence rules and 

hearsay rules . . . but, as [Detective Branch] indicated, in the legally permissible 

way, based on information he received, he decided to put [defendant] in the 

photo array." In other words, the prosecutor confirmed for the jury exactly what 

the Supreme Court in Branch prohibited—that defendant's photo was selected 

for inclusion in the photo array based on "information [Detective Branch] 

received" from non-testifying witnesses, see Branch, 182 N.J. at 352—and urged 

the jury to consider that testimony in assessing the credibility of the witnesses' 
26 A-4100-16T1

out-of-court identifications of defendant in its determination of defendant's guilt

or innocence on the charges. 

Moreover, Detective Branch did not "indicate, in the legally permissible 

way," the reason he selected defendant's photograph for inclusion in the photo 

array. As our Supreme Court has explained, a witness cannot testify that a 

defendant's photograph was selected based "'upon information received.' Even 

such seemingly neutral language, by inference, has the capacity to sweep in 

inadmissible hearsay. It implies that the police officer has information 

suggestive of the defendant's guilt from some unknown source." Ibid. The 

prosecutor could not properly do indirectly what our Supreme Court prohibits a 

witness from doing directly: argue to the jury that the inclusion of a photo in an 

array was based on information provided by non-testifying witnesses. See ibid. 

Contrary to the State's contention, the prosecutor's argument was not made 

proper because it was made in response to defense counsel's assertion that 

Detective Branch had no basis to select defendant's photograph. "In contexts 

other than a photographic identification" a police officer may testify he or she 

relied on "information received" "to explain their actions, but only if necessary 

to rebut a suggestion that they acted arbitrarily and only if the use of that phrase 

does not create an inference that the defendant has been implicated in a crime 
27 A-4100-16T1

by some unknown person." Ibid. (emphasis added). Here, reliance on the refuge 

of "information received" to explain the selection of defendant's photograph was 

not available to either Detective Branch or the State because it involved a 

photographic identification and the testimony and argument created the highly 

prejudicial, inescapable inference that non-testifying witnesses implicated 

defendant in the commission of the crimes for which he was charged. Ibid.

Defendant objected to the prosecutor's argument, but only on the basis that 

the State improperly suggested there was information the jury should consider, 

even though not admitted in evidence. The court provided a limiting instruction 

in response to defendant's objection, advising the jury that counsels' closing 

arguments do not constitute evidence and the jury should rely on its own 

recollection of the evidence. Defense counsel advised the court that she did not 

object to the prosecutor's statement that Detective Branch's decision to include

defendant's photo in the array was "based on information he received." The 

court's instruction therefore did not address the issue now raised on appeal—

that the prosecutor's reference to the information received supported the

inescapable inference that Detective Branch relied on information supplied by 

non-testifying witnesses implicating defendant in the crimes for which Detective 

Branch identified him as a suspect. 
28 A-4100-16T1

"When evidence is admitted that contravenes not only the hearsay rule but 

also a constitutional right, an appellate court must determine whether the error 

impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). Where, as 

here, there was no objection to Detective Branch's testimony about his review 

of the recordings and selection of defendant's photograph, the prosecutor's 

erroneous argument that defendant's photograph was selected based on 

information received, or the court's curative instruction that did not address 

Detective Branch's impermissible testimony, our standard of review requires 

that we determine if the errors were clearly capable of producing an unjust 

result. Branch, 182 N.J. at 353; see also State v. Kemp, 195 N.J. 136, 156 (2008) 

(finding that even where testimony may implicate "the concerns[] interdicted by 

Bankston," a reversal is not required where the totality of the circumstances 

leads to the conclusion that admission of the evidence was harmless).

The assessment of whether the errors in admitting Detective Branch's 

testimony, allowing the prosecutor's comments and in providing the putative 

curative instruction impacted the jury's verdict requires consideration of the 

strength of the State's case, the other evidence presented and any other trial 

errors. See, e.g., State v. Hightower, 120 N.J. 378, 410 (1990). That analysis 

is informed by a recognition that the primary issue—indeed the only contested
29 A-4100-16T1

issue upon which defendant's guilt or innocence depended—was the 

identification of the shooter. 

The State did not present forensic evidence tying defendant to Mayse's 

murder, and the video recordings did not capture the shooting. Thus, the

identification of defendant as the shooter turned on the testimony of the three 

putative eyewitnesses: J.S., Clark and Perna. We appreciate that each of the 

witnesses identified defendant in photo identification procedures and that those 

identifications, if accepted as credible, support the jury's verdict. Perna also 

identified defendant in still photographs taken from the video recordings, and 

J.S. and Perna identified defendant as the shooter at trial. But the reliability of

the witnesses and their respective identifications of defendant as the shooter

were not without issue. 

J.S. and Clark identified defendant in the photo arrays administered in the 

days following the shooting. However, in the hours immediately following the 

shooting, they separately told the police they did not see either the shooting or 

the shooter. J.S. offered reasons for her initial denial—she did not want to be 

identified as a snitch—and the State argued Clark initially denied seeing the 

shooting for the same reason. But the record nonetheless permits the conclusion 

that J.S. and Clark lied either initially to the police or later in their statements. 
30 A-4100-16T1

Moreover, at trial Clark denied any recollection of the shooting. Although the 

court determined his claimed lack of memory was feigned and allowed 

admission of his recorded statement as a result, Clark did not affirmatively 

testified at trial that he observed the shooting or the shooter. Moreover, if his 

lack of recollection was feigned, he lied while under oath before the trial court.

Perna's testimony is likewise filled with disturbing details. She waited 

almost six weeks to contact the police about her observations; the evidence also 

established that at the time of the murder, she allowed Mayse to use her 

apartment to sell drugs in exchange for drugs that she used. The evidence also

showed inconsistencies between her recorded statement and trial testimony, and

suggested a motive for her identification of defendant—a dispute between 

Mayse, for whom she was a maternal figure, and defendant over a drug sale in

her apartment on the evening prior to the murder. 

We need not, and do not, resolve the credibility issues presented by the 

witnesses or assess which version of the events they provided before and during

trial is more believable or persuasive. Instead, we determine only that in light 

of the evidence otherwise supporting a challenge to the credibility of the 

witnesses who provided the identifications that were the lifeblood of the State's 

case, we cannot discount the prejudicial effect of Detective Branch's testimony 
31 A-4100-16T1

that he received information from non-testifying witnesses supporting his

identification of defendant as the suspect. The record provided a substantial 

basis for the jury to question the credibility and reliability of the witnesses'

identifications of defendant. Thus, the admission of Detective Branch's 

testimony, the allowance of the prosecutor's argument that other non-testifying 

witnesses or "information [Detective Branch] received" identified defendant as 

the suspect and the court's ineffective curative instruction concerning the 

prosecutor's improper argument not only deprived defendant of his 

constitutional rights, it was highly prejudicial, unfair and supports a reasonable 

doubt about whether the testimony and prosecutor's argument caused the jury to 

reach a verdict it would have otherwise not reached. In other words, admission 

of the testimony and allowance of the argument constituted plain error requiring 

reversal of defendant's conviction and a remand for a new trial. See Branch, 182 

N.J. at 353-54. The prejudice to defendant is not diminished by the fact that the 

testifying witnesses selected defendant's photo from the arrays. To the contrary, 

the witnesses' selections of the photos may have impermissibly served to 

confirm what Detective Branch explained, and the prosecutor emphasized: that 

non-testifying witnesses had identified defendant as the shooter.
32 A-4100-16T1

B.

The prejudicial effect of Detective Branch's testimony, the prosecutor's 

comments regarding Detective Branch's testimony, and the court's ineffective 

curative instruction was further exacerbated by additional errors, including the 

erroneous admission of Detective Branch's testimony identifying defendant on 

the video recording. Defendant did not object to the testimony, but it was clearly 

inadmissible as lay opinion testimony under Rule 701. See N.J.R.E. 701.

The admission of lay opinion testimony is allowed under Rule 701, which 

provides:

If a witness is not testifying as an expert, the witness' 

testimony in the form of opinions or inferences may be 

admitted if it (a) is rationally based on the perception 

of the witness and (b) will assist in understanding the 

witness' testimony or in determining a fact in issue.

[N.J.R.E. 701.]

Opinion testimony may not "intrude on the province of the jury by 

offering, in the guise of opinions, views on the meaning of facts that the jury is 

fully able to sort out . . . [or] express a view on the ultimate question of guilt or 

innocence." State v. McLean, 205 N.J. 438, 457 (2011) (citations omitted). 

"[L]ay opinion testimony is limited to what was directly perceived by the 

witness and may not rest on otherwise inadmissible hearsay." Id. at 460. To be 
33 A-4100-16T1

admissible, lay opinion testimony must be founded on a witness's perception 

which must "rest[] on the acquisition of knowledge through use of one's sense 

of touch, taste, sight, smell or hearing." Id. at 457. 

A fact witness is one who testifies as to what "he or she perceived through 

one or more of the senses." Id. at 460. "Fact testimony has always consisted of 

a description of what the officer did and saw[.]" Ibid. "Testimony of that type 

includes no opinion, lay or expert, and does not convey information about what 

the officer 'believed,' 'thought' or 'suspected,' but instead is an ordinary factbased recitation by a witness with first-hand knowledge." Ibid.

Detective Branch's testimony identifying defendant as appearing in the 

recordings constituted an inadmissible lay opinion under Rule 701. It was not 

based on Detective Branch's personal perceptions of defendant— Detective 

Branch was not present for, and not did not witness, the shooting—and intruded 

on the jury's role by "offering the view of the witness about . . . facts that the 

jury [could] evaluate for itself or an opportunity to express a view on guilt or 

innocence."6 McLean, 205 N.J. at 462. In addition, there were other witnesses, 

 

6

 In contrast, Detective Branch's testimony identifying Clark as appearing on 

the video recordings constituted proper lay opinion testimony. Detective Branch 

saw Clark immediately following the shooting, interviewed him at the hospital 

and observed what Clark was wearing, including Clark's distinctive red 
34 A-4100-16T1

J.S., Clark and Perna, who testified they witnessed the shooting and identified 

defendant. See Lazo, 209 N.J. at 23 ("Courts evaluating whether a law 

enforcement official may offer a lay opinion on identification also consider, 

among other factors, whether there are additional witnesses available to identify

the defendant at trial."). More importantly, the testimony added to the prejudice 

resulting from Detective Branch's other testimony and the prosecutor's 

comments during summation concerning the identification of defendant as a 

suspect by non-testifying witnesses because it bolstered the challenged 

identifications made by J.S., Clark and Perna with an impermissible

identification of defendant by the detective in charge of the murder 

investigation. "In an identification case, it is for the jury to decide whether an 

 

sweatpants. His identification of Clark on the recording was based on his 

personal perceptions of Clark on the day of the shooting. His testimony that he 

recognized Clark on the recording was founded on those perceptions, assisted 

the jury in determining whether Clark was present at the scene, and therefore 

constituted proper lay opinion testimony under Rule 701. See, e.g., State v. 

Carbone, 180 N.J. Super. 95, 96-97 (Law. Div. 1981) (finding admissible as lay 

opinion testimony concerning photographic identifications of defendant in an 

armed robbery prosecution by witnesses who had personal knowledge of the 

defendant's appearance at the time of the robbery, but who were not present 

when the robbery occurred); cf. Lazo, 209 N.J. at 24 (finding a police officer's 

testimony that the "defendant's arrest photo closely resembled the composite 

sketch" was inadmissible lay opinion because the officer "had not witnessed the 

crime and did not know defendant; the officer's opinion stemmed entirely from 

the victim's description").
35 A-4100-16T1

eyewitness credibly identified the defendant. . . . Neither a police officer nor 

another witness may improperly bolster or vouch for an eyewitness' credibility 

and thus invade the jury's province." Id. at 24. 

Although we might not otherwise conclude that Detective Branch's 

testimony identifying defendant on the video recording alone constitutes a plain 

error, R. 2:10-2, we are convinced the cumulative effect of its admission with 

the erroneous admission of Detective Branch's testimony concerning the 

identification of defendant as a suspect and inclusion of defendant in the photo 

arrays rendered defendant's trial unfair. The State presented its case in a 

thoughtful and strategic manner and, in our view, it is not by chance that the 

State, in recognition of the credibility challenges to its three putative 

eyewitnesses, sought to bolster its proofs on the only issue that mattered—the 

identification of the shooter. It did so in a subtle but persuasive manner by using 

Detective Branch's testimony to first establish the inescapable inference that 

non-testifying witnesses had identified defendant as the shooter and, as if that 

were not enough, by then asking Detective Branch to identify defendant on the 

recording even though Detective Branch was not present when the shooting 
36 A-4100-16T1

occurred.7 Defendant should have objected to the testimony, but the lack of an 

objection does not obviate the fact that Detective Branch's unchallenged 

testimony was highly prejudicial, unfair and cumulatively requires the 

conclusion that its admission was clearly capable of producing an unjust result 

requiring a reversal of defendant's conviction. Jenewicz, 193 N.J. at 473-74.

C.

Our conclusion there was plain and cumulative error warranting a reversal 

of defendant's conviction based on the admission of Detective Branch's 

testimony concerning his identification of defendant as a suspect prior to his 

review of the recordings, his selection of defendant's photograph for inclusion 

in the photo arrays, and his identification of defendant on the video recordings 

renders unnecessary a consideration of all defendant's remaining claims, most 

 

7 We also observe that the State further sought to directly bolster the credibility 

of the witnesses' identifications of defendant by playing portions of the 

recordings of J.S.'s and Perna's identifications and the entirety of Clark's 

statement and identification of defendant during closing arguments. On appeal, 

the State concedes the credibility of the witnesses' identifications constituted the 

fulcrum upon which defendant's guilt was based—the State argues the playing 

of the recordings during closing arguments was required in response to defense 

counsel's "strenuous[] urg[ing]" that the witnesses' identifications of defendant 

were not credible. 
37 A-4100-16T1

of which were not before the trial court and which can be addressed and raised 

on the record extant during the retrial.8

We will, however, address two claims pertinent to the matter on remand. 

First, defendant argues the judge wrongly instructed the jury that it could only 

consider the lesser-included offenses to murder if it acquitted defendant of 

murder. See State v. Coyle, 119 N.J. 194, 222-23 (1990). More particularly, 

defendant argues the murder charge and the lesser-included offense of 

passion/provocation manslaughter should have been instructed together and the 

verdict sheet should have been tailored to ensure the two charges were 

considered together and not sequentially. 

"[A]ppropriate and proper charges [to a jury] are essential for a fair trial." 

State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 

553, 613 (2004)). A trial court has an "independent duty . . . to ensure that the 

jurors receive accurate instructions on the law as it pertains to the facts and 

issues of each case, irrespective of the particular language suggested by either 

 

8

 For example, if the prosecutor intends to replay the video recordings of the 

identification procedures during his or her summation, the issues shall be 

addressed by the parties and the court at the appropriate time in accordance with 

the procedure required by State v. Muhammad, 359 N.J. Super. 361, 380-83 

(App. Div. 2003). Similarly, the court shall consider the appropriateness and 

content of any proposed flight charge based on the evidence presented during 

the retrial. 
38 A-4100-16T1

party." Id. at 159 (alteration in original) (quoting Reddish, 181 N.J. at 613). 

"Because proper jury instructions are essential to a fair trial, 'erroneous 

instructions on material points are presumed to' possess the capacity to unfairly 

prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42 

(2004)).

Defendant was charged with first-degree attempted murder and with the 

lesser-included charges of attempted passion/provocation murder and 

aggravated manslaughter. The court instructed the jury on the charges in 

accordance with the model jury instructions and defendant neither requested a 

change to the court's proposed jury charges on the offenses nor to the verdict 

sheet. We therefore review the court's instructions and verdict sheet for plain 

error, R. 2:10-2, and will not reverse unless there is an error 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. Funderburg, 225 N.J. 66, 79 (2016) 

(alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

In the context of a jury charge, plain error is a "[l]egal 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 
39 A-4100-16T1

result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original)

(quoting State v. Adams, 194 N.J. 186, 207 (2008)). We consider the jury 

instructions "as a whole" to determine if an error constitutes plain error. State 

v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183 N.J. 554, 564 

(2005)). "[T]here is a presumption that [a] charge was not [in] error and was 

unlikely to prejudice the defendant's case" where, as here, there was no objection 

to the charge. State v. Singleton, 211 N.J. 157, 182 (2012). We find no plain 

error here. 

We consider "[t]he verdict sheet[] in conjunction with the jury charges." 

State v. Galicia, 210 N.J. 364, 386 (2012). As our Supreme Court recently 

stated:

A verdict sheet is intended for recordation of the jury's 

verdict and is not designed to supplement oral jury 

instructions. See State v. Reese, 267 N.J. Super. 278, 

287 (App. Div.), certif. denied, 134 N.J. 563 (1993). 

Although a verdict sheet should list all elements of each 

offense, or no elements of any offense, our inquiry 

focuses on whether the jury understood the elements as 

instructed by the judge, and was not misled by the 

verdict sheet. See ibid. Where we conclude that the 

oral instructions of a court were sufficient to convey an 

understanding of the elements to the jury, and where we 

also find that the verdict sheet was not misleading, any 

error in the verdict sheet can be regarded as harmless. 

See id. at 287-89; State v. Vasquez, 265 N.J. Super. 

528, 547 (App. Div.) (finding no reversible error where 

verdict sheet was erroneous but jury received proper 
40 A-4100-16T1

oral instruction, because "[t]he jury is presumed to have 

understood [the] instructions" (citation omitted)), 

certif. denied, 134 N.J. 480 (1993); see also Sons of 

Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997) 

(stating that judge's charge and interrogatories to jury 

do not provide grounds for reversal unless misleading, 

confusing, or ambiguous).

[State v. Gandhi, 201 N.J. 161, 196-97 (2010).]

A purposeful killing in New Jersey can be either murder or the lesserincluded offense of passion/provocation manslaughter. See State v. Grunow, 

102 N.J. 133, 138-40 (1986). Here, defendant does not argue that the 

passion/provocation manslaughter charge was incorrectly included in the jury 

instruction. 

In Coyle, the Court addressed the jury instructions that must be given 

where evidence in the record supports a finding of passion/provocation 

manslaughter. 119 N.J. at 221. The Court noted that where evidence of 

passion/provocation exists, the State may only obtain a murder conviction if it 

proves beyond a reasonable doubt that the purposeful killing was not the product 

of passion/provocation. Ibid.

Here, the judge correctly instructed the jury on the elements of murder 

and passion/provocation manslaughter in accordance with the model criminal 

jury instructions. See Model Jury Charges (Criminal), "Murder, 
41 A-4100-16T1

Passion/Provocation and Aggravated/Reckless Manslaughter (N.J.S.A. 2C:11-

3(a)(1) and (2); 2C:11-4(a), (b)(1) and (2))" (rev. June 8, 2015). In pertinent 

part, the court instructed the jury that defendant is guilty of murder if they found 

"beyond a reasonable doubt that [he] purposely or knowingly caused . . . 

Mayse'[s] death, or serious bodily injury that then resulted in death, and that he 

did not act in the heat of passion resulting from a reasonable provocation, the 

defendant would be guilty of murder." (Emphasis added). In its charge on the 

offense of passion/provocation manslaughter, the court instructed that if the jury 

found "defendant purposely or knowingly caused death, or serious bodily injury 

that then resulted in death, and that he did act in the heat of passion resulting 

from a reasonable provocation, the defendant would be guilty of 

passion/provocation manslaughter." These instructions accurately described the 

different elements of the offenses at issue in this case in accordance with the 

requirements in Coyle. 119 N.J. at 221. 

Defendant contends that the court's charge and the verdict sheet 

erroneously instructed the jury to consider the murder and passion/provocation 

charges sequentially, and that it was necessary that the court instruct the jury 

that it should consider the charges at the same time. Defendant ignores that the 

State was required to prove the absence of passion/provocation as an element of 
42 A-4100-16T1

the murder charge, and the jury necessarily considered the issue of 

passion/provocation when it found defendant guilty of murder. In other words, 

even accepting defendant's contention it was error for the court not to expressly 

instruct the jury to consider the charges at the same time and for the verdict sheet 

not to direct the jury to do so, defendant suffered no prejudice from the purported 

errors because in the jury's consideration of the murder charge, it found beyond 

a reasonable doubt that the State proved an absence of passion/provocation. We 

find no plain error in the court's instructions or the verdict sheet, see, e.g., 

Gandhi, 201 N.J. at 197, but do not limit the parties from requesting different 

jury instructions or a verdict sheet based on the evidence presented at 

defendant's retrial.9

We also consider defendant's claim that the court erred by denying his 

request for an evidentiary hearing on the admissibility of out-of-court 

identifications of defendant made by J.S., Clark and Perna, and by denying his 

 

9

 We remind the parties and trial court of the availability of the Supreme Court 

Committee on Model Criminal Jury Charges' Criminal Sample Verdict Sheets, 

which include a "Sample Verdict Sheet (Murder (Own Conduct, 

Passion/Provocation and Aggravated/Reckless Manslaughter)), Revised [June 8, 

2015]," and commend its use on remand if appropriate based on the evidence 

presented. We note the sample verdict sheet requires that the jury render its 

verdicts on murder and passion/provocation manslaughter in response to a single 

question. 
43 A-4100-16T1

motion to exclude evidence concerning the identifications at trial. We review 

an order denying a motion to bar an out-of-court identification under the 

standard we apply in "our review of a trial court's findings in any non-jury case." 

State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). We accept the 

court's findings that are "supported by sufficient credible evidence in the 

record," State v. Gamble, 218 N.J. 412, 424 (2014), and review de novo the 

court's legal conclusions "and the consequences that flow from established 

facts," id. at 425.

To obtain an evidentiary hearing on the admissibility of eyewitness 

identification evidence, "a defendant has the initial burden of showing some 

evidence of suggestiveness that could lead to a mistaken identification." 

Henderson, 208 N.J. at 288. That evidence must generally be tied to one of the 

system variables identified by our Supreme Court in Henderson. Id. at 288-89. 

Before the trial court, defendant asserted only that the photo identification 

proceedings during which J.S., Clark and Perna identified defendant were 

suggestive because Clark described the shooter as a dark-skinned male and the 

photographs included in the arrays shown to the witnesses included lightskinned males and J.S. refused to sign the photo she selected. The court 

reviewed the photographs shown to the witnesses, determined that the 
44 A-4100-16T1

photographs depicted individuals sharing similar skin tones, rejected the notion 

that J.S.'s refusal demonstrated any evidence of suggestiveness and found no 

evidence supporting defendant's claim that the photo identification procedures

were suggestive. We find defendant's claim that J.S.'s refusal to sign the photo 

she selected demonstrated suggestiveness lacks sufficient merit to warrant 

further discussion. R. 2:11-3(e)(2). We have also reviewed the photographs 

and are satisfied they provide sufficient credible evidence supporting the court's 

findings, Gamble, 218 N.J. at 424, and legal conclusion that defendant failed to 

sustain his burden of demonstrating sufficient suggestiveness to warrant an 

evidentiary hearing on the admissibility of the out-of-court identifications of 

defendant, Henderson, 208 N.J. at 288. 

For the first time on appeal, defendant argues the court erred by allowing 

evidence concerning the out-of-court identifications because the officers who 

conducted the photo identification procedures did not record the witnesses' 

statements concerning their levels of confidence as required under Rule

3:11(c)(7) and State v. Delgado, where our Supreme Court held that law 

enforcement officers are required to make "a written record detailing the out-ofcourt identification procedure, including . . . the dialogue between the witness 

and the interlocutor, and the results." 188 N.J. 48, 63 (2006). We consider 
45 A-4100-16T1

defendant's argument under the plain error standard because, again, it was not 

raised before the trial court. R. 2:10-2. Thus, "it is defendant's burden to 

demonstrate that the police failed to create an adequate record of the [out-ofcourt identification procedure] and that such failure was clearly capable of 

producing an unjust result." Wright, 444 N.J. Super. at 362-63. 

Here, the State complied with the recordation requirements imposed by 

Rule 3:11 and Delgado; the photo identification procedures for J.S., Clark and 

Perna were video recorded and the subject of written reports by the officers who 

conducted them. Those records, however, do not include the witnesses' 

statements of their levels of confidence in their selection of defendant's photo

because they were not asked by the officers to state their levels of confidence. 

"It is . . . critical for law enforcement to record a witness' full statement 

of confidence when an identification is first made—before any possible 

feedback," State v. Anthony, 237 N.J. 213, 226 (2019), because without such a 

recording "the defendant may not learn about confirmatory feedback or other 

suggestive behavior," id. at 233. Although it appears defendant was not 

deprived of any information about possible feedback because the photo 

identification procedures were video recorded, and defendant was provided with 

the recordings prior to trial, on remand defendant may request an evidentiary 
46 A-4100-16T1

hearing based on his claim that, as a result of the officers' failures to request the 

respective witnesses' level of confidence, the photo identification procedures 

were suggestive. See generally, id. at 233-34. We offer no opinion on the merits 

of such a request, which the court shall consider and determine based on the 

record presented. 

Reversed and remanded. We do not retain jurisdiction.