SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1614-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYLEEK A. LEWIS,

Defendant-Appellant.

_______________________

Submitted December 5, 2018 - Decided January 28, 2019

Remanded by the Supreme Court June 23, 2020

Resubmitted June 23, 2020 - Decided July 28, 2020

Before Judges Koblitz, Ostrer and Mayer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 14-08-

0877.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michael James Confusione, Designated 

Counsel, on the brief).

Scott A. Coffina, Burlington County Prosecutor, 

attorney for respondent (Nicole Handy, Assistant 

Prosecutor, of counsel and on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

Our Supreme Court in State v. Greene, ___ N.J. ___, ___ (2020) remanded 

this matter on June 23, 2020 for our consideration of the following five issues 

raised by defendant Tyleek A. Lewis through counsel: 

POINT II: THE PROSECUTOR WENT BEYOND 

FAIR COMMENT ON THE EVIDENCE IN 

SUMMATION.

POINT III: THE TRIAL COURT ERRED IN 

ADMITTING THE WAWA VIDEOTAPE INTO 

EVIDENCE.

POINT IV: THE TRIAL COURT INFRINGED 

DEFENDANT'S RIGHT TO DISCOVERY AND 

CROSS-EXAMINATION.

POINT V: THE TRIAL COURT ERRED IN 

DENYING A POST-VERDICT INTERVIEW OF A 

COMPROMISED JUROR.

POINT VI: DEFENDANT'S SENTENCE IS 

IMPROPER AND EXCESSIVE.

We also consider the single issue defendant argues in his pro se

supplemental brief:1

POINT I: IT WAS REVERSIBLE ERROR FOR THE 

JUDGE TO FAIL TO INSTRUCT THE JURY ON 

ACCOMPLICE LIABILITY, ESPECIALLY IN 

1

 We corrected minor typographical errors.
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LIGHT OF THE JURY'S QUESTION SIGNALING 

ITS CONFUSION.

We incorporate the facts as set forth by the Supreme Court. Greene, ___ 

N.J. at ___ (slip op. at 5-8). Defendant was convicted, after judicial merger, of

one count of felony murder by participating in the murder of Edward Baker 

during the commission of a robbery and burglary, N.J.S.A. 2C:11-3(a)(3). He 

was sentenced simultaneously with his co-defendant Carey R. Greene to thirtyfive years in prison with a thirty-year period of parole ineligibility subject to the 

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

now affirm defendant's conviction and remand only to correct the judgment of 

conviction.

I. Prosecutor's Summation.

Defendant argues that the assistant prosecutor's repeated statements to the 

jury that a trial is a "search for the truth" deprived him of a fair trial. Defendant

also argues that the assistant prosecutor's incorrect statement during summation 

that a pendant had been taken from the victim without an immediate curative

instruction constitutes reversible error. We disagree.

"The State's opening statement should be 'limited to the "facts [the 

prosecutor] intends in good faith to prove by competent evidence." '" Greene, 

___ N.J. at ___ (slip op. at 21) (alteration in original) (quoting State v. 
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Wakefield, 190 N.J. 397, 442 (2007)). The opening statement is "intended to 

serve as 'an outline' or a 'roadmap' or a 'general recital' of the case the State 

intends to present." Ibid. (quoting State v. Walden, 370 N.J. Super. 549, 558 

(App. Div. 2004)). "[T]he court must patrol the boundaries of propriety [of a 

prosecutor's opening statement] to ensure that [a] defendant's right to a fair trial 

is not compromised." Id. at ___ (slip op. at 22) (second and third alterations in 

original) (quoting State v. Timmendequas, 161 N.J. 515, 577 (1999)). 

During summation, a prosecutor is limited to "commenting upon the 

evidence and the reasonable inferences to be drawn therefrom," however, the 

presentation is allowed to be forceful and vigorous. State v. Pindale, 249 N.J. 

Super. 266, 285 (App. Div. 1991). A prosecutor is given leeway, but comments 

must be reasonably related to the evidence adduced at trial. State v. Frost, 158 

N.J. 76, 82 (1999). A prosecutor can make inferences based upon the evidence 

but cannot go beyond the facts of the case. State v. R.B., 183 N.J. 308, 330 

(2005). "[A] determination as to whether a prosecutor's comments had the 

capacity to deprive defendant of a fair trial must be made 'within the context of 

the trial as a whole.'" State v. McNeil-Thomas, 238 N.J. 256, 276 (2019) 

(quoting State v. Feaster, 156 N.J. 1, 64 (1998)). 

During opening statements, the prosecutor stated:
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And I submit to you, ladies and gentlemen, that through 

the expanse of this evidence that's going to be presented 

to you over the course of the next few weeks, you are 

going to also see something else and it's what I call the 

thread of truth. You're going to see the thread of truth 

through each piece of evidence and each witness that 

you hear from. And this is very important because it 

has been said that a trial, the reason why we're here, is 

a search for the truth.

 

Defense counsel objected, citing to State v. Love, 245 N.J. Super. 195, 

198-99 (App. Div. 1991) (analyzing whether the jury charge violated defendant's 

due process rights because it diluted the State's burden of proof), but the 

objection was overruled by the court. During the remainder of his opening 

statement, the prosecutor referred to "truth" nine more times. At the conclusion 

of his opening statement, he stated: "I just ask you, ladies and gentlemen, listen 

carefully, search for that thread of truth throughout the entire State's case." 

During summation, the assistant prosecutor again referred to "truth":

The reason why we are here, and I told you this in my 

opening, this trial is a search, and it's a search for the 

truth. And if you recall during my opening, I called it 

the thread of truth. And that's what I want to talk to you 

about. What is the truth?

Because ultimately, you as triers of these facts have to, 

have to make a decision on what is the truth. How do 

we get to that truth? How do we know what the truth 

is? 

 
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He said "truth" many more times in his summation. However, he also 

stated in summation: "And basically what you need to know before we look for 

this search for the truth of what happened on that night, you need to know that 

. . . the State is required to prove each of these elements beyond a reasonable 

doubt."

After the prosecutor's summation, defense counsel renewed the objection 

to the use of the word "truth," arguing it lessened the State's burden. He

requested a curative instruction. The trial court ruled that because the State 

explained that it was required to prove beyond a reasonable doubt all elements 

of the crimes, a curative instruction was not needed. It held that the assistant 

prosecutor's reference to "truth" did not dilute the State's burden and that the 

jury would be given full instructions.

Pursuant to the model jury charges, the court instructed the jury that the

State must prove each element of every crime charged beyond a reasonable 

doubt. See Model Jury Charges (Criminal), "Felony Murder – Non-Slayer 

Participant (N.J.S.A. 2C:11-3(a)(3))" (rev. Mar. 22, 2004); Model Jury Charges 

(Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-1)" (rev. May 10, 

2010); Model Jury Charges (Criminal), "Burglary in the Second Degree 

(N.J.S.A. 2C:18-2(b))" (rev. Apr. 12, 2010).
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In cases where there have been references to the "truth" by the trial court,

our Supreme Court has not reversed. For example, in State v. Purnell, 126 N.J. 

518, 544 (1992), the trial court advised the jury to "search for the truth" as part 

of the jury instructions. It also informed the jury of the State's burden to prove 

its case beyond a reasonable doubt. Ibid. While the Court was concerned 

regarding the court's use of the term "search for truth" because it could dilute 

the State's burden of proof, the Court affirmed because the jury was correctly 

instructed about the presumption of innocence and the State's burden of proof. 

Id. at 545. 

In Love, we rejected an argument by the defendant that the court's 

comment during jury instructions that it was tasked with ascertaining "the truth 

on the evidence" was improper. Love, 245 N.J. Super. at 198-99; see also State 

v. Medina, 147 N.J. 43, 54 (1996) (rejecting defendant's argument that the 

State's burden was diluted because the court instructed the jury to "search for 

truth"). In State v. Hunt, 115 N.J. 330, 372-73 (1989), the Court rejected the 

defendant's argument, similar to the argument made here, that the State's burden 

was diluted because the prosecutor told the jury that it had a duty to determine 

"where the truth rests." Although the prosecutor repeated the "search for truth" 
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phrase many times, the trial court corrected any misunderstanding by clearly 

instructing the jury about the burden of proof. 

Defendant also argues that the prosecutor misled the jury during 

summation by claiming that a pendant had been taken from the victim, and that

the court failed to issue a timely curative instruction. 

During summation the assistant prosecutor stated:

Let's talk about this Jesus pendant. What's the 

significance of that? In and of itself, not really too 

much significance. But it's the broken clasp, it's the 

broken clasp that has the significance here. Doesn't it? 

Isn't that indicative of some sort of struggle?

[Counsel for defendant] tried to bring out on his crossexamination well, maybe it was the EMS guys cutting, 

cutting open [the victim's] shirt. But the chain, where's 

the chain that that pendant hung on? I'll tell you where 

it's not, it's not in the house. It's gone. 

Defendant's counsel requested a curative instruction and asked that the 

instruction be provided on the same day that the false statement was made. The 

court provided the instruction the next time the jury convened, two days later.

During the jury charge, the court gave a remedial instruction: 

Further, the prosecutor during summations referenced 

the Jesus pendant and clasp found at the crime scene. 

The prosecutor asked "where's the chain" and further 

stated that the chain was "not in the house." Any 

inference that the chain was stolen by the defendants 

must be ignored by you in your deliberations. The 
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chain was recovered from the body at the autopsy and 

is in the possession of the prosecutor's office.

 

During summation, a prosecutor should not make inaccurate legal or 

factual assertions and is duty-bound to confine remarks to the facts adduced at 

trial. Frost, 158 N.J. at 85. When evaluating a claim of prosecutorial 

misconduct, a reviewing court should first determine if the prosecutor 

committed misconduct and then evaluate whether the misconduct requires a new 

trial. Wakefield, 190 N.J. at 446.

The assistant prosecutor misstated a fact when he said that the chain was 

missing. The comment was inaccurate, but did not have the effect of diverting 

the jury's attention from the facts before it or inflaming the jury. The court 

provided a complete and effective curative instruction regarding the prosecutor's 

misstatement. The court clearly informed the jury that the chain was in fact 

recovered from the victim's body and was in the possession of the prosecutor's 

office. We assume that jurors follow instructions. State v. Miller, 205 N.J. 109, 

126 (2011). 

The assistant prosecutor made the incorrect statement at the end of the day 

on Wednesday and the court provided the curative instruction the next time that 

the court met with the jury, on Friday. It is true that curative instructions should
10 A-1614-15T1

be provided "without delay," State v. Vallejo, 198 N.J. 122, 134 (2009), but we 

do not view the instruction as unduly delayed. 

Prosecutorial misconduct "does not warrant reversal unless it is 'so 

egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211 

N.J. 394, 409 (2012). Reversible error occurs when a prosecutor makes a 

comment so prejudicial that it deprives a defendant of his or her right to a fair 

trial. Id. at 437. The inaccurate statement here was not egregious. "A defendant 

is entitled to a fair trial, but not a perfect one." Wakefield, 190 N.J. at 537 

(quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)). 

II. Videotape.

Defendant contends the court erred when it admitted the Wawa 

surveillance videotape into evidence. He claims the State failed to demonstrate 

that the date and time stamp on the video were accurate and, also, failed to 

explain who provided the video to the police and when.

The court conducted an authentication hearing outside the presence of the 

jury. Heather Hearn, a senior security advisor at Wawa, testified that in 2010 

Wawa recorded security footage on a VCR. At that time, the cameras and 

equipment included a date stamp on the video. The store manager was 

responsible for ensuring the date stamp was accurate and, aside from the store 
11 A-1614-15T1

manager, no other employees could alter the date stamp. Hearn recognized the 

video in the present case as a Wawa security video based on the color labels and 

the information on the video.

Zachary Knauss, a shift manager at Wawa, testified that he worked at the 

Westampton store in July 2010. He provided the surveillance video to 

Westampton Township Police Officer Andrew Brewer at 3:39 a.m. on July 17, 

2010. Brewer testified that he obtained the July 16, 2010 surveillance video 

from the Wawa and turned it over to Detective Sergeant Roger Rogers at 

headquarters. 

The tape received from Brewer was placed into the Westampton Township 

evidence depository. Only Rogers and one other detective had access to it. On 

July 27, 2010, Rogers took the video from the evidence locker and gave it to 

Patrolman Thomas Polite at police headquarters. Polite took the video and 

secured it in his office. Polite testified that he reviewed the Wawa tape looking

for the hat and shoe recovered at the crime scene. He located individuals in the 

Wawa video wearing those items. 

Detective Timothy Horne, an evidence management custodian with the 

Burlington County Prosecutor's Office, testified that his office received a video 

tape from a Westampton police department detective. The video had a sticker 
12 A-1614-15T1

on it, stating it was a surveillance video from Wawa. He placed it with the rest 

of the evidence for this case in the evidence storage vault, which could only be 

accessed by members of the evidence management unit. Evidence must be 

signed in and out, and the location is secure.

The trial court found that the video was a Wawa surveillance tape from 

July 16, 2010, from approximately 9:40 p.m. to 10:00 p.m. The court was 

satisfied that the chain of custody and time stamping of the video had been 

established in accordance with N.J.R.E. 901 and was admissible. 

N.J.R.E. 901 states: "To satisfy the requirement of authenticating or 

identifying an item of evidence, the proponent must present evidence sufficient 

to support a finding that the item is what its proponent claims." Authentication 

occurs when the court conducts a screening process to decide whether a 

sufficient basis exists, leaving to the jury the final assessment as to whether the 

item is actually authentic. Biunno, Weissbard & Zegas, Current N.J. Rules of 

Evidence, cmt. 1 on N.J.R.E. 901 (2020). "The rule does not require absolute 

certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. 

Div. 1999). 

Properly authenticated videotapes are admissible. State v. Loftin, 287 

N.J. Super. 76, 98 (App. Div. 1996). "[A] trial court's evidentiary rulings are 
13 A-1614-15T1

entitled to deference absent a showing of an abuse of discretion, i.e., there has 

been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) 

(alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).

Here, the court properly determined that the video was authenticated 

under N.J.R.E. 901. The court heard testimony from Wawa employees and the 

police demonstrating the chain of custody. The court personally viewed the tape 

to confirm that it depicted the evening of July 16, 2010, based on the time stamp. 

Where a surveillance camera films a crime, or the events leading up to or 

following a crime, the authenticity foundation can be laid circumstantially. See

Loftin, 287 N.J. Super. at 98-99. "All that is required for authenticity is proof 

that the matter is what its proponent claims." Id. at 99. The court did not abuse 

its discretion in allowing the Wawa video into evidence.

III. Discovery.

Defendant argues that the court infringed on his right to obtain discovery 

and cross-examine witnesses when it rejected his argument that the assistant 

prosecutor failed to produce all investigatory discovery about the victim, Baker. 

He contends that the assistant prosecutor did not provide discovery related to an 

investigation of a drug dealer named Durrell Whitmore and drug activity at 

Baker's home. 
14 A-1614-15T1

The court independently reviewed the discovery that defendant requested 

and found it unconnected to the murder. One reference in the Whitmore reports 

referred to Baker's nickname "Dough Boy" and indicated that Baker was a friend 

of Whitmore. Also, a reference was made to surveillance conducted at Baker's 

home for a particular car. The court explained that these references were an 

insufficient basis to justify turning over information connected to an 

investigation of Whitmore. 

A court's denial of a discovery request is reviewed under an abuse of 

discretion standard. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010). 

Defendant offers no support for his allegations that a third party was responsible 

for Baker's death or that exculpatory evidence was presented in the reports. 

Defendant's argument is based solely on conjecture. "[A]lthough defendants are 

entitled to broad discovery under Rule 3:13-3, they are not entitled to turn the 

discovery process into a fishing expedition." State v. Broom-Smith, 406 N.J. 

Super. 228, 239 (App. Div. 2009). The court did not abuse its discretion in 

denying defendant access to the Whitmore investigation.

IV. Post-Verdict Juror Interview.

Defendant argues that the court erred when it declined to grant his codefendant Greene's request for a post-verdict interview of a juror, necessitating 
15 A-1614-15T1

a new trial. Greene's mother returned home after the verdict was rendered, 

looked out her window, and saw juror six talking with the person who lived 

across the street. She also believed that she may have observed the neighbor 

dropping juror six off at the courthouse. Greene filed a motion to interview 

juror six to determine why she did not disclose her relationship with Greene's 

mother's neighbor. 

Greene's attorney hired a private investigator who confirmed with the 

neighbor that she was a close friend of juror six and did drive her to the 

courthouse. Greene's attorney alleged that juror six's failure to disclose her 

friendship affected whether counsel would have exercised a preemptory 

challenge during jury selection. Greene was concerned that because his father 

was "killed under untoward circumstances" and his mother had an arrest record, 

the juror could have been exposed to this prejudicial information because 

"people talk." 

Greene's counsel conceded that she lacked any specific information that 

the juror knew that Greene's mother lived in the same neighborhood. Greene's 

investigator's report stated that the neighbor did not know any details about juror 

six's case, the neighbor did not know the case involved her neighbor's son, and 

the juror never discussed the case with her. In fact, according to the report, it 
16 A-1614-15T1

was only after the verdict was rendered that the neighbor heard that Greene's 

mother was related to one of the men found guilty. 

The court denied Greene's request for a post-verdict hearing regarding 

juror six. It explained that granting such a request is an extraordinary measure. 

The connections were "too speculative and too tangential for the [c]ourt to grant 

an interview." 

A criminal defendant is entitled to an impartial jury. State v. Papasavvas, 

163 N.J. 565, 584 (2000). Asking a juror to return to court for an interview after 

a verdict has been rendered and he or she has been discharged is an 

"extraordinary procedure which should be invoked only upon a strong showing 

that a litigant may have been harmed by jury misconduct." State v. Harris, 181 

N.J. 391, 503 (2004) (quoting State v. Athorn, 46 N.J. 247, 250 (1966)). 

"[I]t is virtually impossible to shield jurors from every contact or influence 

that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217 

(1982). Instead, a defendant receives due process when a jury is capable and 

willing to decide the case based solely upon the evidence presented at trial. Ibid. 

A high bar is placed on a party seeking to interview a juror after the jury 

has been discharged. State v. DiFrisco, 174 N.J. 195, 241 (2002). The high 

standard is required to "prevent juror harassment and avoid chilling jury 
17 A-1614-15T1

deliberations." Ibid. The trial court appropriately chose not to call back juror 

six for an interview based on the evidence that Greene's mother's neighbor was 

a friend, especially given that the juror was apparently unaware of the 

connection until after the verdict was rendered. Significantly, defendant was 

not involved with the application to interview the juror, nor implicated in any 

information juror six might have had. 

V. Sentence.

We review a sentence using the abuse of discretion standard of review. 

State v. Roth, 95 N.J. 334, 363-64 (1984). The sentencing court is required to 

qualitatively weigh the aggravating and mitigating factors. State v. Case, 220 

N.J. 49, 65 (2014). The weight given to each is a "function of its gravity in 

relation to the severity of the offense." Roth, 95 N.J. at 368. 

A reviewing court is limited to determining: if the sentencing guidelines 

were followed; if there was competent credible evidence to support the findings 

that were the basis for the sentence; and if the trial court came to an unreasonable 

conclusion. State v. Natale, 184 N.J. 458, 489 (2005). It can vacate the sentence 

if it "shocks the judicial conscience." State v. Cassady, 198 N.J. 165, 181 

(2009). The sentencing court is given wide discretion if the sentence imposed 

is within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). 
18 A-1614-15T1

On September 21, 2015, the court sentenced defendant during the same 

hearing and at the same time as Greene. The court allowed Baker's family and 

Greene's mother to speak. Defendant's mother spoke on his behalf. Defendant

maintained he did not kill Baker. The court reviewed the essential facts of the 

case while addressing both Greene and defendant simultaneously. 

The court analyzed the mitigating and aggravating factors for both

defendant and Greene at the same time. As to defendant, the court applied 

aggravating factors three, the risk of re-offense, and nine, the need for 

deterrence, giving those factors substantial weight. N.J.S.A. 2C:44-1(a)(3) and 

(9). As to factor three, the court concluded that both men failed to take 

responsibility for their conduct. As to factor nine, the court explained that there 

is a need to deter both defendants and others from engaging in similar conduct 

and that the seriousness of the killing showed there was a need to deter both 

defendants from similar conduct in the future. 

The court applied mitigating factor six because defendant was directed to 

pay restitution. N.J.S.A. 2C:44-1(b)(6). The court orally concluded that it 

would apply mitigating factor eleven to defendant, but his judgment of 

conviction does not reflect this finding. N.J.S.A. 2C:44-1(b)(11). We order 

mitigating factor eleven to be reflected on the judgment of conviction, as 
19 A-1614-15T1

consented to by the State. We also direct that the judgment be corrected to 

reflect that this was not a negotiated plea but a jury trial and that the final charge 

was count one, felony murder, only. The court merged the other counts into 

count one. The court did not abuse its discretion in sentencing defendant to 

thirty-five years in prison, thirty without parole.2

The court sentenced defendant and Greene simultaneously rather than 

individually, a procedure not in line with the sentencing requirement that 

aggravating and mitigating circumstances be considered for every defendant 

individually. "[E]ach '[d]efendant is entitled to [an] individualized 

consideration during sentencing.'" State v. Jaffe, 220 N.J. 114, 122 (2014) 

(second and third alterations in original) (quoting State v. Randolph, 210 N.J. 

330, 349 (2012)); see also N.J.S.A. 2C:1-2(b)(6); State v McFarlane, 224 N.J. 

458, 469 (2016) (remanding for resentencing after sentencing judge stated in an 

unrelated proceeding that "a judge 'always' sentences defendants convicted of 

first-degree murder to sixty years in prison"); State v. McDuffie, 450 N.J. Super.

554, 577 (App. Div. 2017) (noting that a "'one size fits all analysis' falls short 

2 The court added an eighty-five percent parole ineligibility provision and a 

five-year period of parole supervision under NERA to the sentence. The parole 

ineligibility does not appear to have any practical ramifications because the 

thirty-year mandatory parole ineligibility is greater than eighty-five percent of 

thirty-five years.
20 A-1614-15T1

of the specific findings required when imposing sentencing"). Defendant did 

not object to this unusual sentencing process at the hearing or on appeal, and we 

think the court sufficiently discriminated between defendants when imposing 

sentencing. However, it is not an approved procedure and could easily lead to 

confusion and mistake.

VI. Accomplice Liability Charge.

Defendant contends as plain error in his pro se supplemental brief that the 

court erred by failing to instruct the jury on accomplice liability because the jury 

indicated that it was confused during deliberations. Defendant argues that had 

the jury been properly instructed, it may have returned a guilty verdict for 

robbery, but not for felony murder. He also argues that the jury was not 

instructed on lesser-included offenses. 

The court and counsel held a lengthy charge conference during which the 

entire charge was discussed. The court observed on the record that none of the 

parties requested an accomplice liability charge during the charge conference. 

During the jury charge, the court provided instructions regarding the four 

offenses charged in the indictment. As part of the instructions for robbery felony 

murder the court stated:

Under this law, it does not matter which of the 

defendants who had participated in the robbery actually 
21 A-1614-15T1

shot and killed Edward Baker. Nor does it generally 

matter that the act which caused the death was 

committed recklessly or unintentionally or 

accidentally. Each participant in the crime of robbery, 

whether the participant himself caused the death or not, 

would be guilty of felony murder. 

Similarly, as part of the charge for burglary felony murder, it stated:

Under this law, it does not matter which of the 

defendants who had participated in the burglary 

actually shot and killed Edward Baker. Nor does it 

generally matter that the act which caused the death was 

committed recklessly, or unintentionally or 

accidentally. Each participant in the crime of burglary, 

whether the participant himself caused the death or not, 

would be guilty of felony murder. 

After the charge, Greene's counsel reminded the court in a side-bar that the 

counsels for defendants did not want the jury charged on the lesser-included 

offenses and that lesser-included offenses were not included on the verdict sheet. 

Nevertheless, Greene's counsel was concerned that the jury instructions 

could be interpreted to convict defendants of lesser-included offenses. To 

alleviate any concerns by defendants that the jury would mistakenly believe that 

defendants could be found guilty of lesser-included offenses, the court explained 

to the jury that defendants were not indicted for the lesser-included offenses of 

second-degree robbery or third-degree burglary. 
22 A-1614-15T1

On the second day of deliberations, the jury submitted a note to the court, 

which stated:

We understand that to be guilty of felony murder 

robbery, you do not have to be the person who actually 

shot the person but can be found guilty by association. 

Is the same true for felony murder burglary or does each 

person have to enter the residence?

In response, the court re-read the relevant jury instructions. The court also 

reminded the jury that a separate verdict should be rendered for each defendant 

and that each case should be decided individually.

The jury's question caused the defense to request additional jury 

instructions. Greene's counsel wanted an instruction about how there cannot be 

"guilt by association" for any of the charges. The State suggested providing an 

accomplice liability charge. Initially, Greene's counsel agreed with the State 

and defendant's counsel seemingly joined in that request at that time, but later 

Greene's counsel opposed an accomplice liability charge. The court observed 

that no one brought up an accomplice liability charge during the charge 

conference. Ultimately, the court did not provide the accomplice liability 

charge, but rather instructed the jury further about "guilt by association" by 

stating:

In reference to this note, the [c]ourt recharged you on 

the principles of multiple charges where there is more 
23 A-1614-15T1

than one defendant and felony murder burglary. The 

[c]ourt now takes this opportunity to further respond to 

the statement guilt by association. There is no guilt by 

association. In your determination of whether the State 

has proven beyond a reasonable doubt each and every 

element of the offenses charged, defendants are entitled 

to have each count considered separately by the 

evidence which is relevant and material to that 

particular charge based on the law as I have given it to 

you.

You must also return separate verdicts for each 

defendant as to each of the charges being tried. In other 

words, you will have to decide each case individually. 

Whether the verdict as to each defendants [sic] are the 

same depends on the evidence and your determination 

as judges of the facts. 

Neither defendant objected to this charge. 

"It is a well-settled principle that appropriate and proper jury charges are 

essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). A jury

charge sets up a "road map to guide the jury" and must explain the law to the 

jury in the context of the material facts of the case. Ibid. (quoting State v. 

Martin, 119 N.J. 2, 15 (1990)). A jury charge must be reviewed in its entirety 

to determine the overall effect. Ibid. If a defendant fails to object to the jury 

charge, the court may hold, pursuant to Rule 1:7-2, that he or she waived the 

right to challenge the jury instruction on appeal. State v. Afanador, 151 N.J. 41, 

54 (1997). 
24 A-1614-15T1

Because this issue was not raised below, defendant must show plain error 

"clearly capable of producing an unjust result." Ibid.; R. 2:10-2. In the context 

of a jury charge, plain error has been defined as "[l]egal impropriety . . . 

prejudicially affecting the substantial rights of the defendant sufficiently 

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

of itself the error possessed a clear capacity to bring about an unjust result." 

Ibid. (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). 

Errors in criminal jury instructions are "excusable only if they are harmless 

beyond a reasonable doubt." State v. Vick, 117 N.J. 288, 292 (1989). 

Defense counsel did not complain that the court failed to charge the jury 

with accomplice liability and did not file a motion seeking a new trial on the 

basis that the court should have provided an accomplice liability charge. 

Moreover, counsel did not object to the charge that the court provided to the jury 

about "guilt by association." The court provided the jury with clear and 

comprehensive instructions that satisfied the concerns of the defendants

regarding the jury's use of the term "guilty by association" in its note.

"Only if the record clearly indicates a lesser-included charge—that is, if 

the evidence is jumping off the page—must the court give the required 

instruction." State v. Funderburg, 225 N.J. 66, 81-82 (2016) (quoting State v. 
25 A-1614-15T1

Denofa, 187 N.J. 24, 42 (2006)). Defendant strategically asked the court not to 

charge lesser-included offenses. As a result, defendant's argument on appeal 

that the court should have nevertheless advised the jury on lesser-included 

offenses is rejected. Defendant "cannot beseech and request the trial court to 

take a certain course of action, and upon adoption by the court, take his chance 

on the outcome of the trial, and if unfavorable, then condemn the very procedure 

he sought and urged, claiming it to be error and prejudicial." State v. Jenkins, 

178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). 

"[W]hen a defendant asks the court to take his proffered approach and the court 

does so, [the Court has] held that relief will not be forthcoming on a claim of 

error by that defendant." Ibid.

We affirm the convictions and remand only to correct the judgment of 

conviction by adding mitigating factor eleven, eliminating the statement that it 

was a negotiated plea and reflecting the merger decision that defendant is guilty 

of one count of felony murder only. We do not retain jurisdiction.