SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NOS. A- 5102

- 18 A- 2666

- 20 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. DONALD SCURRY, a/k/a DONALD SCURRY, JR., and TANK SCURRY, Defendant-Appellant.

___________________________ STATE OF NEW JERSEY, Plaintiff-Respondent,

v. CHARLES B. CLARK, Defendant-Appellant.

___________________________

Argued December 18, 2023

— Decided December 28, 2023 Before Judges Mawla, Marczyk, and Chase.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 5102

- 18 On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17

- 12

- 1084. Richard Sparaco, Designated Counsel, argued the cau se for appellant Donald Scurry (Joseph E. Krakora, Publ ic Defender, attorney; Richard Sparaco, on the brief). Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant Charles B. Clark (Jo seph E. Krakora, Public Defender, attorney; Stefan Van J ura, of counsel and on the brief). Kaili Elizabeth Matthews, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin , Attorney General, attorney; Kaili Elizabeth Matthew s, of counsel and on the briefs).
PER CURIAM These are back- to -back appeals. In A- 5102 -18, defendant Donald Scurry appeals from his convictions and sentence for : first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two ); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (cou nt three); third-degree tampering with evidence, N.J.S.A. 2C:29-3(b)(1) (co unt four); and seconddegree possession of a weapon by a convicted person , N.J.S.A. 2C:39-7(b)(1) (count eight). In A- 2666 -20, defendant Charles B. Clark appeals from his convictions and sentence for: second-degree unlawf ul possession of a weapon,3 A- 5102

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N.J.S.A. 2C:39-5(b)(1) (count three); third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (count five); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count six); and four th-degree obstruction of the administration of law, N.J.S.A. 2C:29- 1( a) (count seven). Defendants were tried together before a jury, over the course of eleven days. The same judge heard pre-trial motions, pres ided at trial, and sentenced defendants. The victim, Celeste Cannon, lived in Millville with her three children. She had a two-year-old son with Scurry, and three- and four-year-old daughters with Titus Ramsey. At the time of her murder, she was sixteen weeks pregnant with a fourth child, fathered by Andrew Thompson. Scurry visited Cannon's home la te in the morning of September 20, 2017, with his paramour Rachel Green, whom he had asked for a ride. Not long after entering the house, he exited with Cannon's childre n and told Green he found Cannon lying dead on the floor. Green helped the c hildren into the car and called 9-1- 1. Meanwhile Scurry tried to flag down a passing polic e vehicle for help, but the officer was transporting a prisoner an d could not stop. Instead, the officer contacted police dispatch, and Officer Will iam Stadnick responded.4 A- 5102

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The officer spoke with Scurry, who explained he had spotted Cannon's car still parked in front of the home while he was driv ing by that morning and thought it odd, so he decided to stop and check on her. Scurry said the twoyear- old opened the door for him, and he found Cannon's body inside the house. Officer Jason Vinzinski arrived next, and Scurry told him the last time he had spoken to Cannon was at 8:24 p.m. the prior eve ning, when he sent her a text message about taking their son for a haircut. He tried calling her at 6:52 a.m. the following morning and, when she did not an swer, Scurry asked Green to take him to Cannon's house. Scurry then reitera ted much of what he told Officer Stadnick, except he stated he did not enter Cannon's home, claiming he "wouldn't go inside someone's house without permiss ion." Officers transported Scurry to the police station f or a video-recorded interview with Detectives Miguel Martinez and Nelso n Ferrer. Scurry recounted the events in a similar fashion, and at the end of the interview consented to a search of his phone. The phone contained a video showing him together wi th Cannon the morning prior to her murder. At trial, the State introduced a still image from the video depicting Scurry lying down wi th a nine -millimeter handgun sitting just behind his right shoulder. Scurry's phone also yielded several text messages between him and Cannon the da y before the murder.5 A- 5102

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Police also collected surveillance footage from sev eral nearby residences and businesses, including a Wawa. The State's evidence showed Cannon sent her final t ext to Scurry at 8:21 p.m. the night before the murder. Scurry responded at 8:24 p.m. as follows: "IDC, bitch, you lying." Later that night, Scurry asked Clark's girlfriend, Quashay Brown, for a ride to Cannon's house. She a nd Clark drove him there in Brown's car and returned to Clark's home after dropping him of f. Location data from Scurry's phone placed him outside Cannon's residence as of 12:17 a.m. Scurry texted Cannon "Bitch, wake TF up" at 12:25 a.m. and tw o minutes later texted "pick up the fucking phone, you dumb l ying bitch," and "I' m about to come over so you know what it is." Security cam era footage from a neighbor's residence showed an individual, similar in size and build to Scurry wearing a light -colored sweatshirt and jeans, hurrying away from C annon's residence. Scurry eventually called Brown and Clark for a ride and asked to be picked up on a side street. They picked him up, and Wawa security camera footage show ed they stopped at the Wawa at 3:22 a.m., on their wa y back to Green's house . Scurry and Clark went into the store together wh ile Brown was outside getting gas. Both me n then ret urned to Brown's car, and Brown went into the

store.6 A- 5102

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Brown testified that when they arrived at Green's hou se, Scurry and Clark got out of the car and had a short conversation in the driveway. Scurry then entered Green's home and went to bed. Cl ark returned to the car and asked Brown to drive him to another nearby Wawa beyond a bridge, which spanned the Maurice River. When they were nearly halfway o ver the bridge, Clark told Brown he had changed his mind and wanted to turn ba ck. As Brown made a Uturn, she observed Clark reach out of the passenger window and "chuck[]" something with enough force to reach the water. Police recovered a spent nine -millimeter shell casing melded to a couch's vinyl, next to Cannon's body. A passerby found a g un, a nine millimeter gun, in the Maurice River a few days after the murder. Pol ice also interviewed Thompson and Ramsey. Ramsey arrived at the scene t he morning Cannon's body was discovered and was extremely distraught an d difficult to calm down. Following their convictions, the trial judge senten ced Scurry to a fiftyfive-year term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 , on count

one , and merged counts two and three into count one. Defendant received a five-year concurrent term of incarceration on count four, and a ten-year consecutive term on count eight with a five-year pe riod of parole ineligibility7 A- 5102

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under the Graves Act, N.J.S.A. 2C:43-6(c). Under a separate indictment, Scurry received a concurrent five-year flat term for viola ting probation

. Clark was sentenced to eight years with four years of parole ineligibility on count three and a concurrent four-year flat term on count five. Counts six and seven were merged with count five.
Sc urry raises the following arguments on appeal:
POINT I THE DENIAL OF THE DEFENDANT'S MOTIONS TO SUPPRESS DENIED HIM THE RIGHT TO A FAIR TRIAL. (a) THE DEFENDANT'S FORMAL STATEMENTS TO DETECTIVES SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT WAS IN CUSTODY AND WAS NOT ADVISED OF HIS MIRANDA [1] RIGHTS. (b) THE DEFENDANT'S MOTION TO SUPPRESS THE RESULTS OF THE SEIZURE AND EXAMINATION OF HIS CELL PHONE SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE POISONOUS TREE. POINT II DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE WAS PERMITTED TO IMPEACH ITS OWN WITNESS: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE STATE TO PLAY THE PRIOR STATEMENT OF WITNESS . . . BROWN TO THE JURY; THE STATE IMPROPERLY IMPEACHED ITS OWN WITNESS WITH HER

1 Miranda v. Arizona , 384 U.S. 436 (1966).8 A- 5102

- 18 PRIOR INCONSISTENT STATEMENT THAT SHE OBSERVED THE CODEFENDANT THROW AN OBJECT FROM THE BRIDGE OVER THE MAURICE RIVER WHERE THE PURPORTED MURDER WEAPON WAS LATER RECOVERED. POINT III THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT LIMITED HIS ABILITY TO PRESENT EVIDENCE OF THIRD-PARTY GUILT.
POINT IV THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S FAILURE TO PROPERLY WARN THE JURY TO DISREGARD DEFENDANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT IN ITS FINAL JURY INSTRUCTIONS. (Not Raised Below).
POINT V THE VIDEO LOCATED ON DEFENDANT'S CELL PHONE WHICH PURPORTEDLY SHOWED A FIREARM AT OR NEAR THE DEFENDANT WAS INADMISSIBLE AS A PRIOR BAD ACT UNDER N.J.R.E. 404(B) AND WAS ERRONEOUSLY ADMITTED AS PROPENSITY EVIDENCE, THEREBY DENYING THE DEFENDANT A FAIR TRIAL. POINT VI DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE INADMISSIBLE LAY OPINION TESTIMONY BY THE INVESTIGATING DETECTIVE THAT THE DEFENDANT WAS THE PERSON DEPICTED ON THE WAWA SURVEILLANCE VIDEOS, THEREBY INVADING THE PROVINCE OF THE JURY AS THE FACTFINDER. (Not Raised Below).
POINT VII THE DEFENDANT MUST BE RESENTENCED BECAUSE THE COURT DID NOT9 A- 5102

- 18 ADDRESS THE OVERALL FAIRNESS OF THE CONSECUTIVE SENTENCES. (Not Raised Below). Clark raises the following arguments on his appeal :

POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE UNLAWFUL POSSESSION OF A HANDGUN CHARGE AT THE CLOSE OF THE STATE'S CASE.
POINT II THE COURT ERRED IN DENYING SEVERANCE OF SCURRY'S BRUTAL MURDER OF A PREGNANT WOMAN FROM DEFENDANT'S MERE DISPOSAL OF THE HANDGUN AFTER THE FACT. POINT III THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE THAT SHOULD BE REDUCED.
I. Scurry argues the court erred in declining to suppr ess the statements he made to detectives during his interview and the text messages they obtained from his phone. He contends his statements were ma de in the context of a custodial interrogation and were un-Mirandized. As a result, he also argue s the text messages should have been suppressed as fruit of the poisonous tree. Generally, a custodial interrogation is any "questi oning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." M iranda, 384 U.S. at10 A- 5102

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444. It need not entail a formal arrest, handcuffs , or other physical restraint, or even necessarily occur at a police station. State v. P.Z., 152 N.J. 86, 103 (1997). Absent a formal arrest, the "critical determinant of custody is whether there has been a significant deprivation of the suspect's fre edom of action based on the objective circumstances, including the time and pla ce of the interrogation, the status of the interrogator, the status of the suspe ct, and other such factors[,] " such that the restraint on the suspect's freedom of movement is "of the degree associated with a formal arrest." Id. at 102-03 (q uoting California v. Beheler , 463 U.S. 1121, 1125 (1983)). A trial court's findings of fact on this issue are entitled to deference on appeal so long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 242-44 (200 7). However, we review a court's conclusions on matters of law de novo. Stat e v. Shaw, 213 N.J. 398, 411 (2012). At the suppression motion hearing, Officer Stadnick testified about his conversation with Scurry outside the house after he and emergency medical personnel confirmed Cannon was dead. Scurry told O fficer Stadnick he had tried contacting Cannon several times the night before and again in the morning without success. That morning, while driving by her house, he noticed her car11 A- 5102

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still parked in front and thought that odd, so he d ecided to check on her. He then found Cannon's body after his son let him into the house. As he finished speaking with Officer Stadnick, he agreed to wait a t the scene until detectives arrived. Detective Martinez, who was familiar with Scurry fr om prior investigations, arrived and briefly spoke with him outside the house before entering to investigate. When he returned, he aske d whether Scurry would be willing to give a formal statement regarding his discovery of Cannon's body. Scurry agreed, and Detective Martinez transported h im to the police station, where detectives interview ed Scurry for approximately ninety minutes. Notably, on the recording, just prior to the interv iew, a voice can be heard off camera, which Detective Martinez identified as belonging to an officer having a phone conversation about an unrelated case nearby

. In the off-camera conversation, an officer is apparently persuading s omeone to come to the station to speak with police and advising the person there is no warrant for their arrest. The video recording shows the interview room was st ill dark and unoccupied while the off-camera conversation was taking place. Then, Detective Ferrer enters the room, turns on the lights, and brings Sc urry in to wait for the interview to begin

. The off-camera conversation continues, while Scurr y is waiting alone12 A- 5102

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in the room, not engaged in a conversation until the video captured the sound of the phone being hung up at the end of the conversation. Cle arly, the off-camera conversation had nothing to do with Scurry. Once the interview began, Scurry recount ed how he found Cannon's body. When detectives asked for Scurry's consent to searc h his phone, the following colloquy ensued: [SCURRY]:

— (indiscernible). If I say no, then

what'll happen if I say no (indiscernible) consent, though? UNIDENTIFIED SPEAKER: I mean, . . . they're going to apply for a search warrant anyway. [SCURRY]: (Indiscernible). UNIDENTIFIED SPEAKER: (Indiscernible) search warrant, but that

— obviously, that (indiscernible). I know you had mentioned you wante d your phone back right away. [SCURRY]: Yeah. UNIDENTIFIED SPEAKER: And, you know, (indiscernible) willing to give you, you know, (indiscernible). It's up to you. I'm just trying (indiscernible) to get your phone (indiscernible). [SCURRY] : If I say no, (indiscernible) keep me here until

—13 A- 5102

- 18 UNIDENTIFIED SPEAKER: Well, (indiscernible) keep the phone (indiscernible) appl y for a full search warrant and get that information off of there. Scurry consented to a search of his phone, signed a consent form, and gave detectives his passcode. Officer Stadnick's police report did not designate Scurry as either a witness or a suspect, and instead denoted him in an "other" category. The officer explained this was because Scurry had not witnessed the actual crime and, at the time, "wasn't anything other than somebody on scene that I spoke with." Likewise, Detective Martinez testified he did not c onsider Scurry a suspect at the time, but only a witness who had discovered the body. Scurry was not under arrest at the time of the interview. The trial judge credited the testimony of the State 's witnesses. He found the "objective facts of this case at the time of the questi oning" did not "lead to a conclusion that [Scurry] was a natural suspe ct ." Scurry's romantic relationship with Cannon had already terminated, they no longer lived together, and Scurry was in a relationship with Green. He went to Canno n's house with Green; Green was the one who called 9-1-1; and Scurry waived dow n police af ter he discovered Cannon's body. Further, at the time of the interview, there was no physical evidence linking Scurry to the murder.14 A- 5102

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The judge concluded Scurry was not in custody at th e time of the interview. Moreover, the detectives' questions wer e no t coercive, but intended to record Scurry's account, which he had already pr ovided at the scene. He concluded Scurry validly consented to the search of his phone and never revoked his consent. The judge's finding Scurry was not in custody was s ound and supported by the credible evidence in the record. For these re asons, Scurry's argument the text messages retrieved from his phone were fruit o f the poisonous tree also fails. Separately, Scurry argues for the first time on app eal, that he felt pressured to consent to the search, because he was led to bel ieve that, absent his consent, he would not be permitted to leave until detectives had secured a warrant.
Consent to search must be voluntary

. State v. Maristany, 133 N.J. 299, 305 (1993). Consent must be given "with a free and unc onstrained will . . . that is not overborne by physical or psychological duress o r coercion, " State v. Carvajal, 202 N.J. 214, 226 (2010). The voluntariness of consent is viewed within the totality of the circumstances , including whether the individual was already arrested or handcuffed, "consent was obtain ed despite a denial of guilt" or "only after the accused had [already] refused in itial requests for consent to15 A- 5102

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se arch," or "consent was given where the subsequent s earch resulted in a seizure of contraband which the accused must have known wou ld be discovered . . . . " State v. King, 44 N.J. 346, 352-53 (1965). The record shows Scurry voluntarily consent ed to the search. There is no evidence detectives coerced or manipulat ed him by answering his question about what would happen if he declined to grant consent t o search his phone. The totality of the circumstances do es not show his consent was undermined. There were no threats, and Scurry was neither arrested no r handcuffed, and he was free to leave.
II. "We defer to a trial court's evidentiary ruling abs ent an abuse of discretion." State v. Garcia, 245 N.J. 412, 430 (2021). "We wil l not substitute our judgment unless the evidentiary ruling is 'so w ide of the mark' that it constitutes 'a clear error in judgment.'" Ibid. (quoting State v. Medina, 242 N.J. 397, 412 (2020)). Reversal of a conviction is only warranted when a mistaken evidentiary ruling has the "clear capacity to cause an unjust result . . . ." Ibid.
A. For the first time on appeal, Scurry contends he wa s denied the right to a fair trial when the court permitted the State to im peach Brown with her prior16 A- 5102

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inconsistent statement. He argues the court erred by not holding a Gross 2 hearing to establish the statement's reliability. A prior inconsistent statement may be admitted for impeachment purposes and as substantive evidence, provided the witness i s available for crossexamination. Id. at 8. Under N.J.R.E. 607(a)(2), "[t]he party calling a wi tness may not neutralize the witness' testimony by a prio r contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) . . . ." Admissibility of a prior inconsistent statement und er N.J.R.E. 803(a)(1) must be determined at a N.J.R.E. 104 hearing outside the pr esence of the jury. State v. Baluch, 341 N.J. Super. 141, 179 (App. Div. 2001). "[T]he purpose of the [N.J.R.E. 104] inquiry 'is not to determine the cre dibility of the out- of -court statements' but 'whether the prior statement was ma de or signed under circumstances establishing sufficient reliability t hat the factfinder may fairly consider it as substantive evidence.'" State v. Spruell, 121 N.J. 32, 46 (1990) (q uoting State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987)). The burden rests with the proponent of the statement to prove its reliability by a preponderance of the evidence. Gross, 121 N.J. at 15- 16.

2 State v. Gross , 121 N.J. 1 (1990).17 A- 5102

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Reliability is determined in light of any relevant surrounding circumstances, including:

(1) the declarant's connection to and interest in t he matter reported in the out- of -court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4 ) whether the declarant was then in custody or otherw ise the target of investigation, (5) the physical and m ental condition of the declarant at the time, (6) the pre sence or absence of other persons, (7) whether the declar ant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducements or coerc ion for the making of the statement, (13) whether the anticipated use of the statement was apparent or ma de known to the declarant, (14) the inherent believabi lity or lack of believability of the statement and (15) the presence or absence of corroborating evidence. [Id. at 10 (quoting Gross , 216 N.J. Super. at 109 -10).] Brown gave a statement to police memorializing her versi on of the events of the evening of the murder, after she was Mirandi zed and waiv ed her rights. She told police she dropped Scurry off at Green's h ouse, Clark exited the car as well and had a brief conversation with Scurry, then Clark asked Brown to drive him to an other Wawa. When Clark changed his mind, she made a U-turn whil e18 A- 5102

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halfway over the bridge, and she saw Clark throw an object out of the car window as if aiming for the water below. When Brown testified at trial, she stated Clark exi ted the car with Scurry at Green's house for "only like two seconds" and de nied she had witnessed the two having any conversation, because she was not pa ying attention. When the prosecutor refreshed Brown's recollection with her prior statement, she then said at most Scurry and Clark "said bye to each other" a nd "that was it." Brown also testified she had turned around before e ven reaching the bridge, but then eventually acknowledged she made a U- tu rn in the middle of the bridge when reminded about her prior statement. She denied having seen Clark "do anything" at that point. When confronted with her statement, she admitted she told police she had seen Clark reach o ut the window, but denied seeing him throw anything, and questioned the accur acy of the transcript of her statement to police. Brown also testified she told police the object Cla rk threw was "small " and assumed it might have been a cigarette or simil ar object. On crossexamination she stated Clark had thrown something " out the window" but not "over the bridge."19 A- 5102

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The next day of trial, the State sought to admit Brown's recorded statement. The court held a hearing to determine t he statement's admissibility. Defense counsel argued the State's introduction of the recorded statement, after Brown had already left the stand, deprived the defe nse of its Sixth Amendment right to further cross-examine her about the statem ent. The trial judge concluded the statement was admissi ble both for impeachment purposes and as substantive evidence, u nder N.J.R.E. 803(a)(1) and N.J.R.E. 607. He reasoned as follows:

The prior statement would be admissible if made by the witness while testifying

— that's satisfied; two, that the maker of the statement is called as a witness befor e the jury and is available for cross-examination

— that was satisfied, she was called; and three, that the prio r statement is made under circumstances establishing its reliability and is either contained in a sound reco rding, or contained in a writing made by or signed by the witness

— my understanding [is] this is a video recording of the witness's statement; it's admissib le

. The judge noted : Brown had denied portions of the statement when th e State confronted her with it ; defense counsel already had the opportunity to cr ossexamine her in that regard; and the defense would b e permitted to recall her if further cross-examination was necessary. Portions of the recording were played for the jury during Detective Martinez's testimony. In the judge's final jury in structions, he explained at some20 A- 5102

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length how the jury could consider the prior statem ent in connection with Brown's testimony. On appeal, Scurry does not challenge the admission o f the prior statement

on co nfrontation grounds. Instead, he argues the failure t o hold a Gross hearing to determine the statement's reliability prior to a dmission

— and the failure to give an appropriate limiting instruction requiring the jury to evaluate the statement pursuant to the same standard for reliabi lity

— is reversible error. He questions whether the statement was inconsistent, n oting Brown neither "disavow[ed]" it nor denied recall ing having made it. Scurry argues the statement was highly prejudicial because it suggested he had given Clark the murder weapon that was later found in the river and colluded with Clark to dispose of the weapon. We are unpersuaded by these arguments. At the outs et, there was no claim asserted before the trial judge that the statement was unreliable. Therefore, a Gross hearing was not required. Scurry's brief doe s not apply the Gross factors to the circumstances in which Brown gave her statem ent. Even so, we are not convinced Brown's statement would be declared unrel iable under the fifteen Gross factors.21 A- 5102

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Indeed, factors one, two, three, and six do not fav or Scurry. Brown was Mirandized before she gave the statement. There is no assertion the Miran da rights were invalid, or that her statement was involuntary , or that Brown did not understand the reasons she was being questioned, th ereby satisfying factors four, nine , twelve, and thirteen. Factors five, seven, and e ight are not applicable. Factor ten is satisfied because the recording of he r statement is complete. Factors eleven and fourteen do not favor Scurry bec ause there is no indication Brown was motivated to fabricate her statement, or that it was not inherently believable. Additionally, factor fifteen was met because her tr ial testimony corroborated much of her statement; a gun was found in the river, and a license plate reader captured her car in the vicinity of the bridge, also corroborat ing her

statement. Brown's statement to police was plainly inconsisten t wit h her testimony. The judge did not abuse his discretion by admitting the statement. The defense had an opportunity to cross-examine Brown and was n ot barred from recalling her. A dditionally, the judge instructed the jury on how to treat the prior inconsistent statement, namely, to judge credibilit y and treat it as substantive evidence

. The judge's instruction detailed at length how the jury must consider22 A- 5102

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the totality of the circumstances surrounding Brown 's prior statement and her testimony

. We affirm the judge's decision to admit Brown's pri or statement for the reasons he expressed following the evidentiary hear ing. The admission of Brown's prior inconsistent statement was not revers ible error.
B. For the first time on appeal, Scurry asserts he was deprived of an opportunity to present evidence of third-party guil t. He claims the judge erred when he prohibited the defense from questioning Thompson i n a manner th at would have implicated Thompson in the murder. Both the federal and state constitutions "guarantee criminal defendants ' a meaningful opportunity to present a complete defens e '" to the charges against them

. State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky , 476 U.S. 683, 690 (1986); State v. Budis, 125 N.J. 519, 531 (1991)). Essential to that opportunity is a right to introduce evidenc e of third-party guilt. State v. Cotto, 182 N.J. 316, 332 (2005). Evidence of a thi rd party's guilt need not substantially prove the guilt of the third party to warrant admission, but "need only be capable of raising a reasonable doubt of [t he] defendant's guilt . . . ." State v. Fortin, 178 N.J. 540, 591 (2004) (quoting State v. Koedatich, 112 N.J.23 A- 5102

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225, 29 9 (1988)). However, the evidence of third-party guilt must hav e more than a speculative connection to the case, and "mus t be capable of demonstrating 'some link between the [third-party] evidence and t he victim or the crime.'" State v. Perry , 225 N.J. 222 , 239 (2005) (alteration in original) (quoting Koedatich, 112 N.J. at 301)

. Thompson testified about his prior criminal record a nd admitted on crossexamination he once owned a .22 caliber gun but den ied owning other guns. Defense counsel impeached Thompson, showing he was previously convicted for possession of .38 caliber hollow-point bullets, and then asked him about the .38 gun itself. Thompson replied the gun was "long gone." Defense counsel also asked him about his other convictions, includi ng one for aggravated assault. Following a brief redirect examination by the State , defense counsel sought to re-cross-examine Thompson regarding the d etails of his aggravated assault conviction. The defense intended to show t hat if Thompson shot

someone 3 with a .38 caliber weapon, it would further underm ine his credibility given his testimony that he had only ever owned the .22 caliber weapon. However, the judge denied defense counsel's request , reasoning that only

3 At sidebar, both counsel and the court recalled Tho mpson having volunteered on re-direct that he had "shot somebody," but that testimo ny is not evident from the transcript.24 A- 5102

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Thompson's convictions were relevant for impeachmen t purposes, not the underlying circumstances. Moreover , the testimony was redundant because the defense already impeached Thompson on this point. Although the defense's challenge at trial was on impeachme nt grounds, on appeal Scurry now claims he was depriv ed of the ability to show third-party guilt. He asserts the circumstances underlying the prior conviction, to the extent it entailed a shooting, would have shown Thompson had a propensity to commit the murder. Because Scurry never raised this issue at trial, we review the trial judge's ruling for plain error to see if it was "cl early capable of producing an unjust result." R. 2:10 -2. This argument lacks merit. Cannon was murdered wit h a nine -millimeter
gun . Therefore , evidence of Thompson's prior use of a different sor t of weapon bears no obvious connection to this case, invites s peculation, and would only serve to confuse the jury. Moreover, defense counsel was afforded considerable leeway to explore third-party guilt with Thompson. Counsel asked Tho mpson on crossexamination whether he had killed Cannon and questi oned him regarding his: gun ownership; knowledge Cannon had considered term inating her pregnancy ;25 A- 5102

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involvement in another romantic relationship at the time of the murder; and whether he was jealous when Ramsey visited Cannon

. Defense counsel also questioned detectives about th eir reasons for excluding Thompson as a suspect. Counsel elicited testimony from detectives directly bearing on propensity and third-party guil t, namely, a prior accusation that Thompson had held a gun to a woman's head. We are satisfied the trial judge did not abuse his d iscretion by limiting the

re -cross-examination of Thompson. The judge's exerci se of discretion limiting a line of questioning, which at best was tenuous, w as not clearly capable of producing an unjust result.
C. Scurry argues the judge abused his discretion by permitting the State to introduce the still image from the video on his phon e showing a nine-millimeter handgun near him. He asserts the evidence should h ave been excluded as "other crimes" evidence. Other crimes evidence may be admitted fo r purposes other than to prove disposition, including to establish "motive, opportunity, inten t, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J. R.E. 404(b). How ever, other26 A- 5102

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crimes evidence ha s a "unique tendency" to prejudice jurors, State v. Stevens , 115 N.J. 289, 302 (1989), by influencing them to co nvict a defendant "not on the evidence of the specific crime at issue but because of the perception that the defendant is a 'bad' person in general." State v. Gibbons, 105 N.J. 67, 77 (1987). Therefore, such evidence is admitted only with grea t caution. State v. Willis , 225 N.J. 85, 97 (2016). Evidence of a prior bad act is admissible only if (1) it is "relevant to a material issue" in the cas e, (2) the prior act is "similar in kind and reasonably close in time to the offense ch arged[,]" (3) the evidence of the prior act is clear and convincing, and (4) its probative value is not "outweighed by its apparent prejudice." State v. C ofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing the P resumptions of Guilt and Innocence, 38 Emory L.J. 135, 160 (1989)). Additionally, the court must issue a careful, precise limiting instruction to the jury regard ing the appropriate use of the evidence in its deliberations. Id. at 340- 41. "The threshold determination under Rule 404(b) is w hether the evidence relates to 'other crimes,' and thus is subject to c ontinued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevan cy, most importantly Rule
403. " State v. Rose, 206 N.J. 141, 179 (2011). Eviden ce is intrinsic "if it27 A- 5102

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'd irectly proves' the charged offense. . . . If unch arged misconduct directly proves the charged offense, it is not evidence of s ome 'other' crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248- 49 (3d Cir. 2010)). Also , "'uncharged acts performed contemporaneously with t he charged crime may be termed intrinsic if they facilitate the commission of the charged crime.' But all else must be analyzed under Rule 404(b)." Ibid. Scurry moved in limine to exclude the still image on grounds it was irrelevant, highly prejudicial, and improper other crimes evidence. Following an evidentiary hearing, the judge concluded the evidence was intrinsic. Pursuant to Cofield, he reasoned there were distinctive feat ures visible both in the image and the gun recovered from the river to enable a ju ry to conclude the weapons were the same. The judge found the image was clear and convincing evidence of Scurry's unlawful possession of a weapon, an off ense he was charge wit h, and the image was made reasonably close in time to the charged offense. Therefore, the probative value of the image in establishing th e relationship between the murder weapon and the gun in Scurry's possession exceeded any prejudice from its admission. The judge ruled the image would be admitted, subjec t to a limiting instruction to the jury.28 A- 5102

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After the State introduced the image, the judge instr ucted the jury it could consider it "for the purposes of determining whethe r or not . . . Scurry had access

to . . . the weapon in this case." The judge reminded the jury it could consider the still image only for this purpose. If the jury concluded the weapon in the still image was not the same as the murder weapon i n evidence, then it could not consider it for any other purpose, and "[c]ertainly not [for] the propensity to have a weapon, or anything else." We are satisfied the judge's ruling was not an abus e of discretion. The Cofield factors were met. The still image was clea rly relevant to whether Scurry unlawfully possessed a weapon, which made the offen se similar in kind to the one charge. The image was made close in time to Ca nnon's murder and was clear and convincing evidence of weapons possession because the gun wa s lying next to Scurry. Therefore, the probative value out weighed the prejudice. And the jury instruction clearly limited how the jury c ould use the evidence.
D. For the first time on appeal, Scurry argues he was denied the right to a fair trial because the officers who testified on behalf of the State identified him in the Wawa surveillance footage. He asserts the test imony impermissibly encroached on the jury's r ole as factfinder.29 A- 5102

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N.J.R.E. 701 permits lay witness opinion testimony "if it : (a) is rationally based on the witness' perception; and (b) will assi st in understanding the witness' testimony in determining a fact in issue." The purpose of the rule is to "ensure that lay opinion is based on an adequate foundation ." State v. Sanchez, 247 N.J. 450, 466 (2021) (quoting State v. Singh, 245 N.J. 1 , 14 (2021)). A lay witness "need not have witnessed the crime or been present when [a] photograph or video recording was made in order to offer admissible testimony" regarding the identity of an individual in the photograph or recording. Id. at 469. The witness need only "hav e actual knowledge, acquired through his or her senses, of the matter to which h e or she testifies.'" Id. at 466 (quoting State v. LaBrutto , 114 N.J. 187, 197 (1989)). In Sanchez, an officer was permitted to testify that she identified the defendant i n surveillance footage taken shortly after the crimes occurred, because sh e had met with him on numerous occasions while supervising him on parole and was familiar with his appearance from personal observation. Id. at 458, 469. As to the second requirement , assist ing the jury to understand a disputed fact, the lay opinion testimony must pertain to a m atter about which the jury is

not equally "competent as [the witness] to form a conc lusion." Id. at 469- 70 (alteration in original) (quoting State v. McLean, 205 N.J. 438, 459 (2011)). A30 A- 5102

- 18

court should consider the "nature, duration, and ti ming of the witness's contacts with the defendant" and the extent to which the con tact occurred near the time of the offense or permitted the witness to observe aspects of the defendant's appearance that might not be readily observable at trial. Id. at 470-72. Other considerations include if "there has been a change i n the defendant's appearance since the offense at issue" to enhance the value of the witness's observations of the defendant closer to the time of the offense, an d whether the recording at issue is either so clear, or of such poor quality, that the witness's identification would be unhelpful at best or highly prejudicial at worst. Id. at 472-73. The court may also consider whether any witnesses outsi de law enforcement would be available to identify the defendant in the same manner at trial. Ibid. Ultimately, admissibility will depend on a consider ation of all the relevant circumstances, and no on e factor is dispositive. Id. at 473-74. Scurry argues Officer Vin zinski's and Detective Martinez's testimony

— identifying him and describing his clothing while discussing the significance of the surveillance footage they had collected and rev iewed during their investigation

— was improper lay opinion testimony. Officer Vinzin ski testified he reviewed seven hours of surveillance footage fro m the Wawa, and was "able to identify" Scurry enter ing the Wawa at 3:22 a.m. He pointed out Scurry in the31 A- 5102

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video by noting the clothing he was wearing. Officer Vinzinski also recounted collect ing and review ing other footage from a nearby business he believed w as on the perpetrator's "possible route of travel," an d observed that an individual depicted in the video had a similar "physical build ," "appearance," and "clothing" to the individual he had identified as S curry in the Wawa footage. Detective Martinez testified he could identify Scur ry from the Wawa footage because he had interviewed Scurry a few day s prior to viewing the video. The detective also gathered footage from a residence near Cannon's home, which depicted an individual in dark pants an d a light-colored sweatshirt moving "away from the scene at a hurried pace," but he could not identify the
person. Defense counsel did not object to this testimony. Regardless, we discern no plainly prejudicial error warranting our interventio n because the jury had the opportunity to view the videos and evaluate the cre dibility of the officers ' representations regarding what the videos depicted. Moreover, both officers interacted with Scurry at the scene just hours after the murder oc curred and the surveillance footage was captured. Their testimony was rationally based on their personal observation of Scurry and the surrounding facts, including that Brown had placed Scurry at the Wawa. The testimony aided the jury, because it32 A- 5102

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provided context and explained the relevance of the surveillance footage the jury was shown and the overall investigation.
III. For the first time on appeal, Scurry argues the judge erred by failing to remind the jury in the final instructions to disregard that he had assert ed his right against self-incrimination during police questionin g. We discern no reversible

error. A suspect's invocation of the privilege against sel f-incrimination "cannot be used against [them] in a criminal trial." State v. Muhammad, 182 N.J. 551, 558 (2005). A violation of this right at trial may be cured with a timely, appropriate instruction to the jury. State v. Sche rzer, 301 N.J. Super. 363, 441 (App. Div. 1997). In this regard, a curative instruction "will not be deemed inadequate" on review "unless there is a real possi bility that the error led the jury to a result it otherwise might not have reache d." Ibid. During the defense's cross-examination of Officer Vinzinski about the investigation, counsel asked him whether he had ever spoken with Scurry about having seen Scurry in the Wawa surveillance footage . Officer Vinzinski responded Scurry "requested a lawyer when [the offi cer] tried to talk to him ."33 A- 5102

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The trial judge immediately called a sidebar, and admonished defense counsel for asking a question guaranteed to elicit the problematic response. Defense counsel then requested a mistrial, which th e judge denied. The judge and counsel then agreed to instruct the jury to dis regard the question and response, because it would be stricken from the rec ord. The judge instructed the jury as follows:

Whether or not somebody seeks the services of an attorney is a constitutional right. You can infer nothing from that. Do you understand that? So if somebody says or you find out that somebody sought the servi ces of an attorney, you can't consider that at all in any way, shape, or form in your decisions with regards to th is case. Do you understand that? So I'm striking tha t. You're not to consider it at all. At the close of the case, the final jury instructio ns reminded the jury it could not consider evidence the judge had stricken. The judge said:

[A]ny testimony that I may have had occasion to str ike is not evidence and should not enter into your fina l deliberations. And I did do that a couple times, remember? Okay. Now, it must be disregarded by yo u. This means that even though you may remember the testimony, you are not to use it in your discussion s or deliberations. On appeal, Scurry asserts the failure to repeat the earlier, curative instruction was plain error. This argument lacks merit.34 A- 5102

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The curative instruction was idiosyncratic of the i ssue to be resolved, namely, to promptly strike from the record and dire ct the jury to ignore t he improper question and answer. We are unconvinced t he jury failed to follow the instruction or that repeating it at the end of the case, e.g., reminding the jury of the stricken evidence, was required under the circu mstances. The problematic question and answer were fleeting and not especiall y egregious. See State v.
Feaster , 156 N.J. 1, 77 (1998) (convictions and sentence aff irmed due to the "fleeting nature" of "defendant's invocation of his right to counsel"). Moreover, the judge 's final instructio ns remind ed jurors they were not to consider any evidence that had been stricken.
IV. Clark argues the judge should have granted his motion to sever his case from Scurry's. This issue is entrusted to the trial judge's sound discretion and will not be disturbed on appeal absent an abuse of that discretion. State v. Sanchez, 143 N.J. 273, 283 (1996). A trial judge deciding a motion to sever must "bala nce the potential prejudice to [a] defendant's due process rights aga inst the State's interest in judicial efficiency." State v. Brown, 118 N.J. 595, 605 (1990) (citing St ate v. Coleman, 46 N.J. 16, 24 (1965)). "A joint trial is preferable because it fosters35 A- 5102

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the goal of judicial economy and prevents inconsist ent verdicts." State v. Weaver, 219 N.J. 131, 157 (2014). The test for granting severance is rigorous. Brown, 118 N.J. at 605- 06. "The mere existence of hostility, conflict, or anta gonism between defendants is not enough." Id. at 606. A mere risk of prejudice is insufficient to warrant severance as the defendant must show actual prejudi ce. State v. Moore, 113 N.J. 239, 274 (1988). "Separate trials are required only when defendants 'present defenses that are antagonistic at their core.'" Brown, 118 N.J. at 606 ( quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5t h Cir. 1981)). "When [a] defendant's defense strategy is antagonis tic at its core to the defense strategy of his co-defendant so that the ju ry could only believe one of them, severance is in order." Weaver, 219 N.J. at 157. However, "[i]f the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing b oth completely, the defenses are not mutually exclusive." Brown, 118 N.J. at 606. The trial judge acknowledged Clark was not charged with any offense related to the commission of the killing itself, but found the allegation that Clark hinder ed the investigation and prosecution of Scurry for th e murder was inseparable from Scurry's conduct. Indeed, the evi dence of the homicide was36 A- 5102

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integral to the jury 's understanding of the hindering case against Clark. T he evidence relating to disposal of the weapon was rel evant to the prosecution of both cases. The defenses were not antagonistic to one another because neither defendant made a statement implicating the other, a nd all third-party witness testimony would be admissible in either case. The judge therefore concluded there was no justification for severance that would out weigh the interests of judicial economy. On appeal, Clark concedes the jury would have to he ar at least some evidence of the homicide in his case but argues the level of detail necessary to prove the homicide in Scurry's case pervaded and pr ejudiced his chances of acquittal at a joint trial. Clark asserts he was merely an "af ter- the -fact, bit player" in Cannon's murder and the bulk of the evidence re levant to the murder , namely the: abusive texts Scurry sent Clark, crime scene photos of Cannon's body, and evidence showing she was pregnant and her children were home when she was shot, was irrelevant to whether he helped S curry conceal evidence of the homicide. The judge did not abuse his discretion. We are unc onvinced the jury was unable to parse the evidence as it related to each defendant. Nor does the record convince us the jury was impelled to convict Clark based on Scurry's actions

.37 A- 5102

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The State never alleged, and the evidence presented did not sug gest, that Clark played a role beyond the hindering. The judge inst ructed the jury as to the offenses committed by each defendant and Clark does not challenge those jury charges. We must presume the jury followed the jud ge's instructions. State v. Martini, 187 N.J. 469, 477 (2006) (citing State v. Marshall, 173 N.J. 343, 355 (2002)). Clark's reliance on State v. Savage, 198 N.J. Super . 507, 508-09, 513 (Law Div. 1984), is misplaced. Savage, also involved on e defendant charged with murder and another charged with hindering apprehens ion after the fact, but not the murder itself. Id. at 513. However, severance was granted in Savage because it was a capital murder case involving the selection of a "death qualified" jury, for whom the selection process was different. Id. at 509. In such cases, jurors could convict a defendant, but t hen decline to hear the death penalty phase of the case. Ibid. The refore, the court found "if death qualification followed the guilt phase, it is possi ble that not enough jurors would remain to hear the penalty phase due to their absol ute views for or against the death penalty . . . ." Ibid. Severance was required because the possibility that the same jury would not hear all phases of the cases was con trary to "legislative38 A- 5102

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policy favoring trial of all phases of a capital ca se before the 'same jury' . . . ." Id. at 510. Savage is inapposite. Th e offenses charged here were different and the jury selection process for each defendant was not u nique to their offenses. We also reject Clark's reliance on State v. Sterlin g, 215 N.J. 65, 73 (2013). That case involved the severance of charges against a single defendant who committed multiple criminal transactions. Ibid. The concern there was the "danger when several crimes are tried together, tha t the jury may use the evidence cumulatively; that is, that, although so m uch as would be admissible upon any one of the charges might not have persuade d them of the accused's guilt, the sum of it will convince them as to all." Ibid. (quoting State v. Pitts , 116 N.J. 580, 601 (1989)). The offenses here were committed by two defendants within the context of one broad criminal transactio n. V. Clark asserts the judge should have granted his pos t-trial motion for a judgment of acquittal on the unlawful possession of a weapon charge. He argues N.J.S.A. 2C:39-2(b), which permits the jury to draw an inference that defendant did not have a firearm permit unless the defendant establishes otherwise, was39 A- 5102

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unconstitutional as applied here because the State failed to introduce any evidence showing he lacked a permit

. A post-trial motion for judgment of acquittal is go verned by Rule 3:18

- 2. The motion judge may consider all the evidence, dir ect or circumstantial, presented by the State and the defendant, giving th e State the benefit of all the favorable evidence and all the favorable inferences drawn from that evidence, and then determine whether a reasonable jury could find guilt beyond a reasonable doubt. State v. Lodzinski, 249 N.J. 116, 144 (2021); State v. Fuqua , 234 N.J. 583, 590-91 (2018); State v. Williams, 218 N.J. 576, 594 (2014). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essen tial elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). A court must recognize "jurors 'may draw an inference from a fact whenever it is more probable than not that the inference is true . . . .'" Lodzinski, 249 N.J. at 144 (quoting State v. Brown, 80 N.J. 587, 592 (1979)). We apply the same standard on appellate review. Id. at 145. N.J.S.A. 2C:39-5(b)(1), criminalizes the unlawful p ossession of a weapon , which it defines as "[a]ny person who knowingly has in his possession any40 A- 5102

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handgun . .

. without first having obtained a permit to carry the same . . . ." N.J.S.A. 2C:39-2(b) st ates:

When the legality of a person's conduct under this chapter depends on [their] possession of a license or permit or on [their] having registered with or give n notice to a particular person or agency, it shall b e presumed that [they] do [] not possess such a license or permit or ha[ve] not registered or given the requir ed notice, until [they] establish [] the contrary. In State v. Ingram , our Supreme Court considered the constitutionality of the statutory presumption under N.J.S.A. 2C:39-2. 98 N.J. 489, 491 (1985). The Court held: (1) the absence of a required permit is an essentia l

element of a weapons offense as defined under N.J.S .A. 2C:39-5; (2) once possession of a weapon is shown an d an accused fails to come forward with evidence of a permit, the State may employ the statutory presumpt ion of N.J.S.A. 2C:39-2 to establish the absence of the required permit; and (3) a jury should be instructed that although such a statute authorizes the inference th at there is no such permit, the ultimate burden of persuasion rests on the State, with the jury being at liberty to find the ultimate fact one way or the ot her. [Id. at 500.] Detective Martine z testified he "personally did not look" for any perm its for Clark, but in reviewing the evidence gathered d uring the investigation he had41 A- 5102

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not seen any permits. The defense offered no evide nce to the contrary. The judge instructed the jury on the inference issue as follows:

The third element the State must prove beyond a reasonable doubt is that the defendant did not have a permit to possess such a handgun. If you find the defendant knowingly possessed the handgun and there is no evidence that the defendant had a valid permi t to carry such a handgun, then you may infer, if you th ink it appropriate to do so, based upon the facts prese nted, that defendant had no such permit. Know however, as with all other elements, the State bears the burden of showing beyond a reasonab le doubt the lack of a valid permit, and that you may draw the inference only if you feel it is appropriate to do so under all the facts and circumstances. Defense counsel moved for a judgment of acquittal, po inting out the State had offered no substantive evidence bearing on Clar k's lack of a permit, and appl ying the statutory inference would oblige Clark to test ify on his own behalf , which was contrary to his right to remain silent. The trial judge denied the motion, reasoning the State could not be expected to prove a negative and could rely on the statutory inference. However, because the State had the burden of proof, the jury would be free to accept or reject t he inference in the context of its evaluation of the evidence. Giving the State the favorable inference, it is cl ear the jury accepted Detective Martinez's testimony the evidence gathere d during the investigation42 A- 5102

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revealed no gun permit for Clark. It is also obvio us the jury properly applied the jury instruction regarding the statutory infere nce . As the judge aptly noted, the State was not required to do more to invoke the statutory presumption. We discern no error.
VI.
A. Finally, both defendants challenge their sentences . Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J. 321, 347 (2019). Therefore, we review for an abuse of discretion. State v. Jones, 232 N.J. 308, 318 (2018). We defer to the sentencing court's factual findings and should not "secondguess" them. State v. Case, 220 N.J. 49, 65 (2014). "To facilitate meaningful appellate review, trial j udges must explain how they arrived at a particular sentence." I bid. We will reverse a sentence where: the findings of fact on the aggravating and mitigat ing factors were not based on competent and credible evidence in the record; the court applied the incorrect sentencing guidelines enunciated in the criminal co de; or the application of the facts to the law constituted such an error of judgm ent as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).43 A- 5102

- 18 B. Scurry asks us to remand his sentence because the t rial judge failed to explicitly address the fairness of imposing consecu tive prison terms for his firstdegree murder and certain-persons convictions as re quired by State v. Torres , 246 N.J. 246, 270

- 73 (2021). The State agrees. For these reasons, we remand for a statement regarding the overall fairness of S curry's sentence as required by
Torres

. We add, however, that the judge should also make fi ndings under the State v. Yarbough factors. 100 N.J. 627, 643- 44 (1985). There, our Supreme Court held when a court determines whether a sentence sho uld be concurrent or consecutive it should qualitatively weight the foll owing factors:

(a) the crimes and their objectives were predominan tly independent of each other; (b) the crimes involved separate acts of violence o r threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so clo sely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous . . . .44 A- 5102

- 18 [Torres, 246 N.J. at 264 ( quoting Yarbough, 100 N.J. at 643

- 44) .] The judge's sentencing in Scurry's case lacks an as sessment under Torres and Yarbough. For these reasons, we remand and dir ect the judge to reconsider Scurry's sentence by making the findings required u nder Torres and Yarbough. Scurry does not otherwise challenge his sentence. Therefore, our remand is circumscribed.
C. Clark argues his sentence was excessive. He allege s the court gave too much weight to aggravating factor three because his criminal record was not substantial. He asserts to the extent the judge's finding of aggravating factor nine relied on Clark's knowledge that the object he threw off the bridge was a gun, the judge impermissibly double-counted elements of the offen ses for which he was convicted. He contends his eight-year sente nce was unjustified and the judge should have sentenced him to the minimum sent ence of five years with forty-two months of

parole ineligibility. The trial judge observed that Clark, at thirty-two years of age, had three arrests as a juvenile, including two diversions and one adjudication, and thirteen arrests as an adult, including five ordinance viola tions and three disorderly persons convictions. Although the judge noted Clark had no indictable45 A- 5102

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convictions he nonetheless "had repeated contact with the crimina l justice system[.]" Therefore, he found aggravating factor three

— the risk he would commit another offense, N.J.S.A. 2C:44-1(a)(3) , applied and should be given substantial weight. The trial judge found aggravating factor nine

— the need for deterrence, N.J.S.A. 2C:44-1(a)(9), because even assuming Clark initially believed he was only doing a favor for a friend, he knowingly accepted th e gun, with knowledge of Scurry's criminal background. The judge noted C lark was friends with Scurry and knew him for "a good portion of his life. He k nows he's had a murder charge before. . . . He knows he has an extensive crimina l record, and he asked the jury to believe, which they did not believe, that he han ded him a package. And he had no idea what was in there." The judge found:

Under the circumstances, as we know them, there's no way he didn't know that was a gun. Zero . No way.

. . . . So what . . . is that saying about . . . the risk associated with this individual and the need for deterrence. That's the moment of nope. I'm not do ing that. . . . So even if he was willing to drive him here and drive him there at all ungodly hours of the morning , . . . the decision to take the gun from him, that's a46 A- 5102

- 18 nonstarter. That's where deterrence comes in, beca use at some point, no matter who it is, you say no, and that's where deterrence comes in. The trial judge found no mitigating factors and concluded the aggr avating factors clearly preponderated. As we noted, the judge sentenced Clark to a n eight-year term, subject to a four-year period of parole ineligibility pursuant t o the Graves Act, N.J.S.A. 2C:43-6(c), on the unlawful possession count , concurrent to a flat four-year term on the hindering count. He then merged the remaining counts into the unlawful possession count and imposed appropriate fines and penalties. Clark's sentence was not an abuse of discretion. Both aggravating factors were supported by the evidence in the record. The judge did not double-count Clark's offense when he found aggravating factor ni ne. Although the judge found Clark could not credibly claim ignorance that the object he disposed of was a gun, the reasons for applying aggravating factor nine did not hinge on the
gun possession. Rather, the judge was pointing out Cl ark's willingness to commit the offenses given the circumstances. Clark received the midrange sentence on the unlawfu l possession count.
S ee N.J.S.A. 2C:43-6(a)(2) (sentencing range of betwee n five and ten years for second-degree offense). The sentence does not shoc k our judicial conscience.47 A- 5102

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Affirmed in part and remanded in part in A- 5102

- 18 . Affirmed in A- 2666

- 20. We do not retain jurisdiction.