SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2503-19 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

KIM A. CARTER, a/k/a 

KIM CARTER, LA-HEEM, 

and RA-HEEM, 

 Defendant-Appellant. 

________________________

Argued April 9, 2024 – Decided April 16, 2024 

Before Judges Puglisi, Haas and Bergman.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 19-02-

0269.

John V. Saykanic, Designated Counsel, argued the 

cause for appellant (Jennifer Nicole Sellitti, Public 

Defender, attorney; John V. Saykanic, on the brief). 

Nancy Anne Hulett, Assistant Prosecutor, argued the 

cause for respondent (Yolanda Ciccone, Middlesex 

County Prosecutor, attorney; Nancy Anne Hulett, of 

counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

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

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2503-19

PER CURIAM 

 A Middlesex County grand jury charged defendant Kim A. Carter in a tencount superseding indictment with first-degree murder (count one); seconddegree unlawful possession of a weapon (count two); second-degree possession 

of a weapon for an unlawful purpose (count three); third-degree possession of a 

controlled dangerous substance (CDS) with intent to distribute (counts four and 

seven); third-degree possession of a CDS with intent to distribute (counts five 

and eight); third-degree possession of a CDS with intent to distribute within 

1,000 feet of school property (counts six and nine); and third-degree financial 

facilitation (count ten). Prior to trial, the court denied defendant's motion to 

sever counts one through three from counts four through ten. 

 Following a multi-day trial, the jury convicted defendant on six of the 

drug charges (counts four through nine); acquitted him on count ten; and was 

unable to return a verdict on the homicide and weapons charges resulting in a 

mistrial on counts one through three. After appropriate mergers, the trial court 

sentenced defendant to an extended ten-year term in prison with a five-year 

period of parole ineligibility on count six, and to a concurrent five-year term on 

count nine. 

 On appeal, defendant raises the following contentions: 
3 A-2503-19

POINT I 

THE TRIAL COURT ABUSED ITS DISCRETION BY 

DENYING DEFENDANT'S MOTION TO SEVER 

COUNTS [ONE], [TWO], AND [THREE] (RELATED 

TO THE MOSES MURDER) FROM THE WHOLLY 

UNRELATED CDS CHARGES (COUNTS [FOUR] 

THROUGH [TEN]) THEREBY DENYING 

DEFENDANT HIS FOURTEENTH AMENDMENT 

DUE PROCESS RIGHT TO A FAIR TRIAL[.] (U.S. 

CONST. AMENDS. VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 9, 10). 

[A.] THE RELEVANT LAW. 

[B.] FACTS IN CARTER MANDATING A 

SEVERANCE. 

POINT II 

THE TRIAL COURT ERRED IN PERMITTING 

DETECTIVE CELENTANO TO TESTIFY AS A) THE 

STATE'S DRUG EXPERT AS THE STATE'S 

EXPERT REPORT DID NOT MEET THE 

REQUIREMENT OF AN EXPERT REPORT[;] B) 

THE EXPERT IMPROPERLY TESTIFIED THAT 

THE DRUGS DEFENDANT POSSESSED ON THE 

DAY OF HIS ARREST WERE CONSISTENT WITH 

DISTRIBUTION[;] C) IMPROPERLY CONSIDERED 

THE MARIJUANA THAT DEFENDANT 

POSSESSED[;] D) IMPROPERLY TESTIFIED THAT 

THE AMOUNT OF DRUGS DEFENDANT 

POSSESSED WOULD RESULT IN AN OVERDOSE; 

E) IMPROPER SPECULATION; AND F) IMPROPER 

REFERENCE TO HEROIN (WHICH IS NOT IN THIS 

CASE), IN VIOLATION OF THE FOURTEENTH 

AMENDMENT DUE PROCESS RIGHT TO A FAIR 

TRIAL AND TO HIS SIXTH AMENDMENT RIGHT 
4 A-2503-19

TO CONFRONT WITNESSES AGAINST HIM. (U.S. 

CONST. AMENDS. VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 9, 10). 

A. THE IMPROPER EXPERT REPORT. 

B. THE IMPROPER OPINION THAT THE 

DRUGS DEFENDANT POSSESSED WERE 

CONSISTENT WITH DISTRIBUTION. 

C. THE IMPROPER REFERENCE TO 

MARIJUANA. 

D. THE IMPROPER TESTIMONY AS TO AN 

"OVERDOSE." 

E. THE EXPERT'S IMPROPER SPECULATION. 

F. THE EXPERT'S IMPROPER REFERENCE TO 

HEROIN. 

POINT III 

THE TRIAL COURT ERRED IN DENYING THE 

MISTRIAL MOTION AS THE PROSECUTOR 

DURING HIS OPENING STATEMENT 

COMMITTED PROSECUTORIAL MISCONDUCT 

A) BY IMPROPERLY COMMENTING UPON 

DEFENDANT'S MARIJUANA POSSESSION 

(WHICH HE IS NOT CHARGED WITH IN THE 

INDICTMENT) AND B) BY IMPROPERLY 

STATING THAT A DETECTIVE SAW DEFENDANT 

WEARING "THE EXACT SAME OUTFIT" AS THE 

SHOOTER NEAR THE SCENE IN VIOLATION OF 

DEFENDANT'S FOURTEENTH AMENDMENT 

DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. 

CONST. AMENDS. VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 9, 10). 
5 A-2503-19

A. THE IMPROPER COMMENT AS TO 

MARIJUANA POSSESSION. 

B. THE IMPROPER COMMENT AS TO 

DEFENDANT WEARING "THE EXACT 

SAME OUTFIT" AS THE SHOOTER. 

POINT IV 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

ADMITTING OBJECTIONABLE AUTOPSY 

PHOTOGRAPHS IN VIOLATION OF THE

DEFENDANT'S SIXTH AMENDMENT AND 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT[S] AND STATE CONSTITUTIONAL RIGHT 

TO A FAIR TRIAL MANDATING A REVERSAL OF 

HIS CONVICTIONS. (U.S. CONST. AMENDS. V, 

VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 

10). 

POINT V 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

CHARGING FLIGHT OVER DEFENDANT'S 

OBJECTION IN VIOLATION OF DEFENDANT'S 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT TO A FAIR TRIAL. (U.S. CONST. AMENDS. 

V, VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 

9, 10). 

POINT VI 

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR JUDGMENT OF ACQUITTAL 

PURSUANT TO R. 3:18-1 AS THE STATE DID NOT 

PROVE DEFENDANT'S GUILT BEYOND A 

REASONABLE DOUBT; DEFENDANT'S 
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CONVICTIONS ARE CONTRARY TO THE DUE 

PROCESS CLAUSE OF THE FOURTEENTH 

AMENDMENT OF THE UNITED STATES 

CONSTITUTION AND THE NEW JERSEY STATE 

CONSTITUTION. (U.S. CONST., AMENDS. V, VI, 

XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10). 

POINT VII 

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MISTRIAL MOTION AS THE JURY 

HEARD INADMISSIBLE AND HIGHLY 

PREJUDICIAL PRIOR BAD ACT 404(B) 

MATERIAL IN VIOLATION OF DEFENDANT'S 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT TO A FAIR TRIAL. (U.S. CONST., 

AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 10). 

POINT VIII 

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MISTRIAL MOTION AS THE 

PROSECUTOR COMMITTED MISCONDUCT BY 

IMPROPERLY QUESTIONING THE WITNESS 

BERRY AS TO DEFENDANT'S RAP VIDEOS THAT 

"TALK ABOUT SHOOTING PEOPLE" IN 

VIOLATION OF DEFENDANT'S FOURTEENTH 

AMENDMENT DUE PROCESS RIGHT TO A FAIR 

TRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. 

CONST. (1947) ART. I, PARAS. 1, 10). 

POINT IX 

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MISTRIAL MOTION AS THE 

PROSECUTOR COMMITTED MISCONDUCT BY 

IMPROPERLY QUESTIONING THE STATE'S 
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WITNESSES DETECTIVE[S] GREGUS AND 

AMBROMAITIS IN A MANNER THAT 

SUGGESTED DEFENDANT WAS IDENTIFIED AS 

THE SHOOTER IN A SURVEILLANCE VIDEO, IN 

VIOLATION OF DEFENDANT'S FOURTEENTH 

AMENDMENT DUE PROCESS RIGHT TO A FAIR 

TRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. 

CONST. (1947) ART. I, PARAS. 1, 10). 

POINT X 

THE PROSECUTOR COMMITTED MISCONDUCT 

A) DUE TO THE IMPROPER QUESTIONING OF 

THE DEFENSE WITNESS CASSANDRA MILLS AS 

TO DEFENDANT'S UNEMPLOYMENT[;] B) BY 

IMPROPERLY CHARACTERIZING MILLS' 

POLICE STATEMENT THAT DEFENDANT SELLS 

DRUGS; C) BY IMPROPERLY SUGGESTING 

DEFENDANT ENDANGERED MILLS' CHILDREN 

WITH DRUG DEALING IN THE HOUSE; AND D) 

BY IMPROPERLY QUESTIONING MILLS AS TO 

HER FAILURE TO MAKE A COMPLAINT TO THE 

POLICE, IN VIOLATION OF DEFENDANT'S 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT TO A FAIR TRIAL. (U.S. CONST., 

AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 10). 

A. IMPROPERLY QUESTIONING AS TO 

UNEMPLOYMENT. 

B. IMPROPER CHARACTERIZATION OF 

POLICE STATEMENT. 

C. IMPROPER QUESTIONING AS TO DRUG 

DEALING AND CHILDREN. 
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D. THE IMPROPER QUESTIONING AS TO 

MILLS' FAILURE TO MAKE A COMPLAINT 

AGAINST THE POLICE. 

POINT XI 

THE TRIAL COURT ERRONEOUSLY REINSTRUCTED THE JURY WITH AN 

IMPERMISSIBLE REFERENCE TO THE CIVIL 

STANDARD OF PROOF IN VIOLATION OF 

DEFENDANT'S FOURTEENTH AMENDMENT 

DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. 

CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 10). 

POINT XII 

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR A NEW TRIAL UNDER R. 3:20-1 AS 

THE VERDICTS WERE AGAINST THE WEIGHT 

OF THE EVIDENCE. (U.S. CONST., AMENDS. V, 

VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 

10). 

POINT XIII 

THE NUMEROUS LEGAL ERRORS COMMITTED 

BY THE TRIAL COURT DEPRIVED DEFENDANT 

OF HIS FIFTH, SIXTH AND FOURTEENTH 

AMENDMENT DUE PROCESS RIGHT TO A FAIR 

TRIAL AND NEW JERSEY CONSTITUTIONAL 

RIGHT TO A FAIR TRIAL. (U.S. CONST., 

AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 9, 10). 

 Having considered defendant's contentions in light of the record and the 

applicable law, we affirm. 
9 A-2503-19

I.

The salient facts are as follows. At approximately 8:30 p.m. on November 

17, 2017, the police responded to the scene of a shooting in New Brunswick, 

where they found the body of Tawan Moses. A subsequent autopsy confirmed 

that Moses had been shot numerous times in his head and torso. 

Based upon surveillance footage of the shooting which showed the shooter 

running away from the scene, and various witness statements including one from 

Tonya Denson who had witnessed an altercation between defendant and Moses 

two days before the shooting, police obtained an arrest warrant for defendant. 

Shortly before 7:00 p.m. on November 21, 2017, officers spotted defendant 

standing on a street near the scene of the shooting. They subsequently arrested 

defendant while he was in the company of a former girlfriend at a location on 

the same street. 

While processing defendant at the police station, Officer Sean Freeman 

noticed an odor of raw marijuana emanating from defendant's crotch area. 

Freeman ran his hands up defendant's left leg and felt a plastic bag underneath 

his pants. Freeman ordered defendant to strip and, as defendant removed his 

clothing, a bag of what Freeman believed to be narcotics fell out of defendant's 

underpants. Later testing confirmed that the bag contained a separate bag of 
10 A-2503-19

marijuana, fifteen small plastic baggies containing crack cocaine, and twenty 

packets of fentanyl, a synthetic form of heroin. Officers also found $540 in cash 

in defendant's right pants pocket. Freeman testified that an elementary school 

was located within 1,000 feet of the scene of defendant's arrest. 

At trial, Detective Joseph Celentano testified as an expert in illegal CDS 

and street-level drug trafficking. He stated that drug addicts did not typically 

buy their drugs in bulk as they lacked the resources to do so. Rather they 

purchased "smaller quantities" in cash which they used "day by day." In his 

experience, drug addicts were only concerned with their next immediate high, 

as opposed to planning for long-term usage. 

Celentano related that street-level drug dealers usually had more than one 

kind of drug available to sell. Per Celentano, street-level dealers typically sold 

cocaine in tied-off plastic baggies containing a single gram each, and heroin and 

fentanyl in wax paper folds/glassine packets, each containing a single .2 gram 

dose. He explained that fentanyl was a synthetic opioid made from the same 

type of opium as heroin, but fifty to one hundred times more potent than heroin 

and much cheaper. According to Celentano, heroin/fentanyl folds were usually 

stamped with a dealer logo and packed in bundles of ten tied with rubber bands. 
11 A-2503-19

Celentano testified that he examined the baggies containing cocaine and 

the fentanyl folds stamped "Playboy" with a red bunny which were recovered 

from defendant's person, and opined that the packaging was "typical for streetlevel distribution." He stated that if someone were to ingest twenty folds of 

fentanyl at one time, they would likely die. 

Berry testified she had known defendant her whole life and the two shared 

a two-year-old child. Berry stated that, on November 21, 2017, she met up with 

defendant at the arrest scene, which was outside the home of a friend, because 

she needed to ask him for rent money. She confirmed that defendant was 

involved with rap music and made music videos. 

Defendant did not testify at trial, but did present a single witness, his 

current girlfriend Cassandra Mills with whom he had a daughter. Mills testified 

that in 2017 defendant was staying with her at her home in New Brunswick. 

Mills acknowledged that defendant did not work a steady job. Rather, he was 

an entrepreneur who sold Jello shots, t-shirts, and ski masks, and was also 

involved in rap and hip-hop music and made music videos. Miller noted that 

defendant had a drug problem, specifically with crack cocaine and heroin. 

Mills reported that, on November 17, 2017, she returned home at 9:00 a.m. 

after finishing her morning job as a school bus driver and she and defendant 
12 A-2503-19

went to breakfast. According to Mills, defendant was "his regular jolly self." 

Defendant left after breakfast and did not return until "[a]bout 3:00 a.m." They 

also had breakfast as usual on November 18. 

Mills testified that defendant slept at her home each of the next three 

nights. She denied that he was hiding out or that he asked her to dispose of 

anything for him. On cross-examination, she confirmed that, upon searching 

her home after defendant's arrest, police found a box containing a digital scale, 

a plate, baggies and three razor blades. Mills denied that these items belonged 

to her. 

II. 

In Point I of his brief, defendant contends that the trial court erred in 

denying his motion for severance. We disagree. 

Generally, in deciding a motion for severance of charges, the trial court 

enjoys "a wide range of discretion[.]" State v. Coruzzi, 189 N.J. Super. 273, 

297 (App. Div. 1983). A denial of a motion for severance should not be reversed 

"absent a mistaken exercise of that discretion." Ibid. 

"[W]here the evidence establishes that multiple offenses are linked as part 

of the same transaction or series of transactions, a court should grant a motion 

for severance only when [a] defendant has satisfied the court that prejudice 
13 A-2503-19

would result." State v. Moore, 113 N.J. 239, 273 (1988). The courts have 

recognized that any trial involving several charges "probably will involve some 

potential of [prejudice], since the multiplicity alone may suggest to the jury a 

propensity to criminal conduct." Coruzzi, 189 N.J. Super. at 297. However, 

"other considerations, such as economy and judicial expediency, must be 

weighed" when deciding a severance motion. Ibid. These interests may require 

that charges remain joined, "so long as the defendant's right to a fair trial remains 

unprejudiced." Id. at 298. 

The proper inquiry when deciding a motion for severance is whether, if 

the crimes were tried separately, evidence of the severed offenses would be 

admissible at the trial of the remaining charges. State v. Chenique-Puey, 145 

N.J. 334, 341 (1996). If the evidence would be admissible at both trials, the trial 

court should not sever the charges, because the defendant "will not suffer any 

more prejudice in a joint trial than he would in separate trials." Coruzzi, 189 

N.J. Super. at 299. To evaluate whether evidence of each crime would be 

admissible at the trial of the others, and thus whether severance should be 

denied, the trial court must utilize the same standard used to determine whether 

other-crime evidence is admissible under N.J.R.E. 404(b). Chenique-Puey, 145 

N.J. at 341. 
14 A-2503-19

Our Supreme Court's opinion in State v. Cofield, 127 N.J. 328 (1992), sets 

forth the well-established test for deciding whether evidence is admissible under 

this rule: 

1. The evidence of the other crime must be admissible 

as relevant to a material issue; 

2. It must be similar in kind and reasonably close in 

time to the offense charged;

3. The evidence of the other crime must be clear and 

convincing; and 

4. The probative value of the evidence must not be 

outweighed by its apparent prejudice. 

[Id. at 338 (citation omitted).] 

The party seeking to admit other-crime evidence bears the burden to 

establish each of the four prongs. See State v. J.M., 225 N.J. 146, 158-59 (2016). 

A court's determination on the admissibility of other-crime evidence is "entitled 

to deference" and is "reviewed under an abuse of discretion standard." State v. 

Ramseur, 106 N.J. 123, 266 (1987). "Only where there is a 'clear error of 

judgment' should the 'trial court's conclusion with respect to [the] balancing test' 

be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. 

DiFrisco, 137 N.J. 434, 496-97 (1994)). 
15 A-2503-19

Prior to trial, defendant filed a motion to sever the counts pertaining to the 

drugs offenses (counts four through ten) from the counts related to the murder 

(counts one through three). At a hearing on the motion, defense counsel argued 

that the murder charges and the drug charges had nothing to do with each other. 

 The trial court denied the motion. In its oral decision, the court first 

reviewed the facts in the case, highlighting that: (1) per Denson, on November 

15, 2017, the victim allegedly approached defendant, pointed a gun at him and 

told him that he could no longer sell drugs in New Brunswick; (2) Denson saw 

defendant subsequently walk away and heard him mutter "you just messed up"; 

(3) the victim was shot two days later; and (4) at the time of his arrest defendant 

was found in possession of fifteen bags of crack cocaine, twenty folds of heroin, 

marijuana, and $540 in cash. The court noted that, according to the State's 

theory of the case, defendant murdered the victim because of a dispute over drug 

territory and the drugs found in his possession at the time of his arrest were 

proof of his motive. 

The trial court then applied the four-prong Cofield analysis to determine 

whether proof of the drug offenses would be admissible in a separate trial of the 

murder charges. The court deemed prong one satisfied because: 

In this case, the other act evidence is defendant 

being found in possession of drugs four days after the 
16 A-2503-19

victim's murder. Given that . . . the evidence recovered 

in this case suggests the defendant was selling drugs 

and given the State's assertion that defendant murdered 

the victim, because the victim threatened defendant and 

told defendant that he can no longer sell drugs in New 

Brunswick, the drug charges are . . . related to the . . . 

homicide charges. 

The drug . . . charges here . . . bear on . . . a 

material issue in dispute, because it provides motive for 

the murder. 

 Next, the court found that: (1) prong two was not applicable; and (2) 

prong three was satisfied because the State intended to present testimony from 

the officers who discovered the drugs on defendant's person after his arrest. As 

to prong four, the court found that the probative value of the drug offense 

evidence was not significantly outweighed by its inflammatory potential 

because the evidence clearly supported motive and was integral to the State's 

proof. Thus, as all relevant prongs of the Cofield analysis were satisfied, the 

court ruled that severance was not warranted. 

 We discern no basis for disturbing the trial court's well-reasoned 

determination. As the court noted, the State's theory of the case, which was 

predicated upon Denson's statement regarding the interaction between defendant 

and the victim two days before the shooting, was that the shooting was the result 

of a turf dispute between two drug dealers. The discovery of significant amounts 
17 A-2503-19

of drugs and cash on defendant's person at the time of his arrest supported the 

State's contention that he was a drug dealer with a motive to eliminate the 

challenging interloper, Moses. Under these circumstances, the court did not 

abuse its discretion by denying defendant's severance motion. 

III. 

 Defendant contends in Point II that the trial court erred by permitting 

Celentano to testify because the prosecutor provided a deficient and erroneous 

summary of his intended testimony during discovery. Defendant also contends 

that he was denied a fair trial when Celentano improperly: (1) testified that the 

packaging of the cocaine defendant possessed was consistent with distribution; 

(2) referenced the marijuana possessed by defendant; (3) testified that the 

amount of cocaine defendant possessed would result in an overdose; (4) 

speculated as to whether drug addicts typically had the resources to buy drugs 

in large quantities; and (5) referenced heroin. Again, we disagree. 

We defer to a trial court's evidentiary ruling absent an abuse of discretion. 

State v. Garcia, 245 N.J. 412, 430 (2021). We will not substitute our judgment 

unless the evidentiary ruling is "so wide of the mark" that it constitutes "a clear 

error in judgment." Id. at 430 (quoting State v. Medina, 242 N.J. 397, 412 
18 A-2503-19

(2020)). Reversal of a conviction is only warranted when a mistaken evidentiary 

ruling has the "clear capacity to cause an unjust result." Ibid. 

Pursuant to N.J.R.E. 703, an expert opinion must be grounded in facts or 

data derived from: "(1) the expert's personal observations, or (2) evidence 

admitted at the trial, or (3) data relied upon by the expert which is not necessarily 

admissible in evidence but which is the type of data normally relied upon by 

experts." An expert must "'give the why and wherefore' that supports the 

opinion, 'rather than a mere conclusion.'" Davis v. Brickman Landscaping, 210 

N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v. New Comm. Corp., 207 

N.J. 344, 372 (2010). An expert is not permitted to express "speculative 

opinions" or "personal views" that are either unfounded in the record or that 

contradict the record. Townsend v. Pierre, 221 N.J. 36, 55 (2015). 

 Experts in drug distribution cases are permitted to offer necessary insight 

into matters that are not commonly understood by the average juror, such as the 

significance of drug packaging and weight, the function of drug paraphernalia 

such as scales, baggies and cutting agents, the meaning of drug logos, the value 

of the drugs and how low-level drug transactions are arranged and carried out. 

State v. Cain, 224 N.J. 410, 413-14 (2016). 
19 A-2503-19

However, once apprised of the peculiar characteristics of a drugdistribution scheme, it is left to the jury to decide whether a defendant possessed 

the requisite mental state to commit a particular drug offense. Id. at 414, 426-

27. The expert may not intrude on the jury's exclusive domain as factfinder by 

offering "ultimate-issue testimony" either directly or by way of answers to 

loaded hypothetical questions that "may be viewed as an expert's quasipronouncement of guilt." Id. at 427. It is for the jury to sort through the 

evidence and use its "common sense to make simple logical deductions." Ibid. 

 Defendant begins his contentions on this point by asserting that the 

prosecutor did not provide an adequate summary of Celentano's proposed expert 

testimony under Rule 3:13-3(b)(I). This rule allows the prosecutor to provide 

to the defense a "statement of the facts and opinions to which the expert is 

expected to testify and a summary of the grounds for each opinion" in lieu of an 

expert-authored formal report. The prosecutor's letter stated: 

The State anticipates calling Det. Celentano to 

testify as an expert in the above-referenced trial. The 

expert testimony will explain to the jury how cocaine, 

heroin and marijuana are processed and packaged, the 

value of these drugs, and how these drugs are generally 

distributed. He will also discuss the different methods 

of ingesting heroin, cocaine and marijuana, the 

paraphernalia most commonly possessed by drug users

for ingestion of these particular drugs, and the 

quantities of heroin, cocaine and marijuana normally 
20 A-2503-19

purchased and ingested by users. This testimony will 

be based upon his training and experience as reflected 

in his curriculum vitae enclosed herein. 

Ten months after defense counsel received this summary, he objected to 

it by claiming it was too "generic." The trial court ruled that the objection was 

untimely as counsel had had ten months to seek any needed clarification, and 

the summary, while sparse, satisfied Rule 3:13-3.

During Celentano's testimony, defense counsel renewed his objection, 

noting that the summary referenced heroin, not fentanyl. The prosecutor 

responded that an updated discovery letter may have been sent to defense 

counsel after defendant's arraignment on the superseding indictment,1 but that, 

in any event, fentanyl was a synthetic form of heroin and was packaged the same 

way as heroin for street-level distribution. The trial court overruled defense 

counsel's objection. 

We detect no abuse of discretion in the court's ruling. As the court 

observed, defense counsel had ample time to reach out to the prosecutor had he 

really been in doubt as to the substance of Celentano's intended testimony, the 

1

 The original indictment incorrectly listed heroin as the CDS involved in counts 

four and five. The superseding indictment corrected this mistake by listing 

fentanyl as the drug involved in the offenses. 
21 A-2503-19

parameters of which were prescribed under Cain. Moreover, the summary was 

sufficiently detailed to meet the requirements of Rule 3:13-3.

 Next, defendant contends that the trial court improperly permitted 

Celentano to opine that defendant possessed the twenty baggies of cocaine for 

distribution. This argument also lacks merit. 

 During Celentano's testimony, the following colloquy occurred: 

[Prosecutor]: Twenty bags of crack cocaine, is that 

typical of a personal use quantity? 

[Celentano]: Twenty bags of cocaine? 

[Prosecutor]: Yes. 

[Celentano]: The way it's packaged right here? 

[Prosecutor]: Yes. 

[Celentano]: No, that's for distribution. 

 At this point, defense counsel objected and requested a mistrial. The 

prosecutor agreed that Celentano's last statement should be struck, but argued 

that a mistrial was not warranted. The trial court sustained the objection and 

ruled that it was going to strike both the question and the answer and give a 

curative instruction. Thereafter, the court instructed the jury as follows: 

All right. Ladies and gentlemen, I am . . . striking 

the last question and answer and directing you to 

disregard the question and the response. And what that 
22 A-2503-19

essentially means is that when you deliberate in this 

case, you are not to consider for any reason the question 

that . . . was posed and the response given by the 

detective. 

And the reason why I am striking that question 

and answer is because whether the drugs in this case 

were possessed for personal use or for distribution is 

not to be made by the detective sitting here but by you. 

All the detective can testify as an expert is to how 

drugs are packaged, how drugs are used on the street, 

how drugs are ingested, and things of that – things of 

that sort. 

Whether these drugs were possessed for personal 

use or not or possessed for distribution is beyond the 

ken of his testimony, is beyond his expertise. It's for 

you to decide as a jury whether these drugs here were 

for personal use or for the purposes of giving it or 

selling it or distributing it to someone else. 

 Because the court struck the testimony and issued a thorough curative 

instruction, which we presume the jury followed, State v. Smith, 212 N.J. 365, 

409 (2012), there was no need for a mistrial. 

 Next, defendant contends that he was denied a fair trial when Celentano 

was permitted to comment upon the marijuana found in defendant's possession 

despite the fact that defendant was not charged with marijuana possession. 

However, it must be noted that, in the colloquy defendant highlights as 
23 A-2503-19

prejudicial to him, Celentano spoke only in generalities based upon his 

experience and defense counsel made no objection to his testimony: 

[Prosecutor]: Is it typical for people to have an appetite 

for one drug at a time? 

[Celentano]: Yes. Drug users, yes. 

[Prosecutor]: Is it – would it be uncommon or atypical 

for a person to have larger quantities of two different 

drugs simultaneously? 

[Celentano]: I've seen . . . users have marijuana and 

cocaine or marijuana and heroin. Marijuana seems like

a wide drug that's commonly abused. But to have 

cocaine, heroin, and marijuana or Fentanyl, meth, and 

marijuana, that's not typical on the street for a user or a 

dealer to have. 

[Prosecutor]: Do dealers deal to a wide variety of

customers? 

[Celentano]: Yes. 

[Prosecutor]: Do dealers have heroin customers while 

at the same time having . . . cocaine customers or having 

marijuana customers? 

[Celentano]: Yes. 

[Prosecutor]: So is it typical for a dealer to have more 

than one drug available for purchase? 

[Celentano]: Absolutely. 
24 A-2503-19

Given that this testimony fell within Celentano's purview as an expert in 

street-level drug trafficking, we reject defendant's contention that it was 

improper or prejudicial in any way. 

 Next, defendant contends that he was denied a fair trial when Celentano 

testified that ingesting twenty bags of crack cocaine at once would likely result 

in an overdose. However, Celentano did not actually testify to this as defense 

counsel objected before he could answer and the prosecutor did not subsequently 

repeat his question. Rather, the prosecutor asked whether twenty bags of crack 

cocaine was typical of personal use quantity. 

Celentano did testify, without defense objection, that if someone were to 

ingest twenty folds of fentanyl they would probably die. While defendant is 

correct that this case did not involve an overdose, we cannot overlook that 

defendant's defense to the drug distribution charges was that he was an addict 

guilty only of drug possession, not a dealer. Defense counsel made this 

argument to the jury in both his opening and closing statements. As such, the 

prosecutor's exploration of whether the amount of drugs found on defendant's 

person was consistent with reasonable personal usage was a proper response to 

defense counsel's argument. 
25 A-2503-19

 Next, defendant contends that Celentano improperly speculated that drug 

addicts did not typically have the resources to buy large quantities of drugs at 

one time. However, as the trial court found in overruling defense counsel's 

objection, this testimony was offered within the frame of Celentano's experience 

in street-level drug trafficking and thus, was not improper speculation. 

Lastly, defendant contends he was denied a fair trial when Celentano was 

permitted to testify regarding the packaging, pricing and usage of heroin when 

this case did not involve heroin. However, Celentano explained that fentanyl 

was a synthetic form of heroin and was packaged in the same manner for streetlevel sale. The jury was well aware that no heroin was found on defendant's 

person. Thus, we also reject this portion of defendant's argument. 

IV. 

In Point III, defendant argues that the trial court should have denied his 

motion for a mistrial following the prosecutor's opening statement because the 

prosecutor improperly commented upon defendant's possession of marijuana, 

and that an officer observed defendant wearing "the exact same outfit" as the 

shooter. We disagree. 

 A motion for a mistrial should be granted only in those situations which 

would otherwise result in manifest injustice. State v. DiRienzo, 53 N.J. 360, 
26 A-2503-19

383 (1969). The decision to deny a motion for a mistrial is within the sound 

discretion of the trial judge, and will only be reversed on appeal for abuse of 

this discretion. State v. Winter, 96 N.J. 640, 647 (1984). 

A conviction may be reversed based on prosecutorial misconduct only 

where the misconduct is so egregious in the context of the trial as a whole as to 

deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 

(2007). Although a single instance of prosecutorial misconduct may not be so 

prejudicial as to warrant reversal, the cumulative effect of several such instances 

may create such prejudice. State v. Rodriguez, 365 N.J. Super. 38, 49 (App. 

Div. 2003). When the alleged misconduct involves a particular remark, a court 

should consider whether: (1) defense counsel objected in a timely and proper 

fashion to the remark; (2) the remark was withdrawn promptly; and (3) the court 

gave the jury a curative instruction. State v. Smith, 212 N.J. 365, 403-04 (2012); 

State v. Zola, 112 N.J. 384, 426, (1988). 

The scope of the State's opening statement is limited to the "facts he 

intends in good faith to prove by competent evidence." State v. Hipplewith, 33 

N.J. 300, 309 (1960). "'A prosecutor's opening statement should provide an 

outline or roadmap . . . limited to a general recital of what the State expects, in 

good faith, to prove by competent evidence.'" State v. Walden, 370 N.J. Super. 
27 A-2503-19

549, 558 (App. Div. 2004) (quoting State v. Torres, 328 N.J. Super. 77, 95 (App. 

Div. 2000)). Reversal on the basis of a prosecutor's opening remarks is not 

warranted unless the challenged remark is completely unsupported by the 

evidence and there is a showing of prejudice to the defendant and bad faith by 

the prosecutor. Hipplewith, 33 N.J. at 309. 

a. Marijuana possession 

During his opening statement, the prosecutor stated as follows: 

Mr. Carter is arrested and he is found in 

possession of drugs. And ladies and gentlemen, I said 

to you from the outset this case was about drugs and 

about selling drugs and the control of selling drugs. Mr. 

Carter had 20 folds of fentanyl. 

Now, you will hear from a witness in this case 

that fentanyl is a drug that is sold in lieu of heroin. It 

is a synthetic version of heroin and it is packaged the 

same way. [It] [i]s often sold for the same price and it 

was packaged for sale, 20 folds of it. 

 Also, there are 15 bags, small individualized bags

for personal use of cocaine, one[]s that could be easily 

sold on the street. Mr. Carter also has a small bag of 

marijuana and has over $500 in cash. 

[(emphasis added).] 

Although defense counsel did not immediately object to the comment 

about defendant's possession of marijuana, he moved for a mistrial at the 

conclusion of the prosecutor's remarks arguing as follows: 
28 A-2503-19

[Defense counsel]: Judge, I want to make an 

application for a mistrial based upon the comments that 

were made by [the prosecutor] dealing with my client 

possessing marijuana. He is not charged with 

marijuana in this particular instance before this jury. 

He has not been indicted for it and they shouldn't hear 

about it. It's improper and I object to it. 

[Prosecutor]: First of all, Judge, it was [disorderly 

persons] weight of marijuana, so he couldn't be 

indicted. Second, it's evidential because that's how the 

officers did a search of Mr. Carter. It resulted in a strip 

search of him andTHE COURT: I'm sorry? 

[Prosecutor]: It resulted in a strip search where they 

had to remove all of his clothing. I don't want any 

inference drawn that the police treated him cruelly and 

they did this arbitrarily. The smell of marijuana is what 

prompted them to say we need to do a search. They felt 

something in his underwear. They smelled marijuana. 

THE COURT: All right. 

[Prosecutor]: Judge–

THE COURT: How is your client prejudiced? 

[Defense counsel]: Judge, that is so disingenuous,

number one because they had an arrest warrant for Mr. 

Carter. 

THE COURT: All right, fine. How is he–

[Defense counsel]: Because they are just layering it on, 

layer after layer. The jury has nothing to do or nothing 

to hear with marijuana. 
29 A-2503-19

. . . . 

[Defense counsel]: Judge, I made my record. 

THE COURT: You've made your objection. The 

objection is overruled. 

We agree with the trial court that the comment did not prejudice 

defendant. As the prosecutor noted, the odor of marijuana is what alerted the 

processing officers to the possibility that defendant had drugs on his person and 

prompted the strip search which confirmed that this was the case. 

b. Defendant's clothing 

 In his opening statement, the prosecutor also told the jury that an 

eyewitness to the shooting gave police a "very accurate" description of the 

shooter, i.e., an "African-American male, camouflage jacket, gray hooded 

sweatshirt, dark skin complexion." He related that police obtained surveillance 

video showing the shooting and were able to isolate a photo of the shooter. The 

prosecutor then stated that, upon being shown the photo, Officer Karlo 

Sarmiento "immediately said that at 7:00 on the night of the murder, he saw 

[defendant] wearing the exact same outfit about a block and a half away . . . 

outside a liquor store." 
30 A-2503-19

Defense counsel immediately objected, arguing that according to the 

police reports, Sarmiento actually stated that defendant was wearing a "similar" 

outfit when he saw him earlier. The prosecutor insisted that Sarmiento said that 

defendant was "wearing the exact same clothes as the photograph he was 

shown." The trial court ruled that it was going to remind the jury that what a 

lawyer said in an opening statement was not evidence but what he expected the 

evidence to show. Although the prosecutor disputed the necessity of this 

instruction given that he did not believe he had misspoken, defense counsel did 

not have "any problem with [this] instruction." The court, thereafter, 

reinstructed the jury with this precept at the conclusion of the prosecutor's 

opening statement. 

Although defendant again renews the objection on appeal, the trial court 

committed no error. Our review of the record indicates that when shown the 

photo of the shooter, Sarmiento stated he saw defendant wearing the same outfit 

earlier. As such, and because the trial court repeated the cautionary instruction 

sought by defense counsel over the prosecutor's objection, we reject this portion 

of defendant's argument. 

V.
31 A-2503-19

In Point IV, defendant argues that the trial court abused its discretion by 

admitting certain autopsy photos into evidence. This argument lacks sufficient 

merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Based 

upon our review of the record, including defendant's confidential appendix 

containing the photos, we agree that this material was relevant to establish 

defendant's criminal state of mind and, as the court found, the photos were not 

particularly gruesome. 

VI. 

 Defendant argues in Point V of his brief that the trial court abused its 

discretion by instructing the jury on the permissible inference of consciousness 

of guilt flowing from flight in connection with the murder count. However, 

defendant was not convicted on this count or the related weapons offenses. 

Because the flight charge had no capacity to prejudice defendant concerning the 

drug charges, we reject defendant's contention on this point. 

VII. 

 In Point VI, defendant argues that the trial court erred by denying his 

motions for a judgment of acquittal at the end of the State's case and again 

following the jury's verdict. This argument also lacks merit. 

The test to be applied on such a motion is 
32 A-2503-19

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

that evidence direct or circumstantial, and giving the 

State the benefit of all its favorable testimony as well 

as all of the favorable inferences which reasonably

could be drawn therefrom, a reasonable jury could find 

guilt of the charge beyond a reasonable doubt. 

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

 Here, the State provided ample evidence to support the court's denial of 

defendant's motions. Specifically, lab tests confirmed that the drugs found in 

defendant's possession were fentanyl and cocaine; Celentano's testimony 

provided a basis for the jury to infer that defendant intended to distribute these 

drugs; and there was testimony based on a certified school zone map that 

defendant was within 1,000 feet of a school when he was arrested. Under these 

circumstances, the court correctly denied defendant's motions. 

VIII. 

 Defendant argues in Point VII that the trial court erred by denying his 

mistrial motion after a redacted portion of Densen's recorded statement was 

inadvertently played for the jury. However, this contention is not persuasive. 

 During her statement to the police, Denson speculated that Moses may 

have put pressure on defendant to stop selling drugs in the area because 

defendant was "the big man . . . on the block right now." Defendant asked the 
33 A-2503-19

court to order the State to redact this portion of the statement before playing it 

for the jury, and the court agreed. 

 At trial, the prosecutor gave the jury redacted transcripts of Denson's 

statement, but mistakenly played the unredacted recording. However, all the 

juror heard was the detective's question, "Okay, and what would be a reason to 

go to [defendant]" because the prosecutor stopped the tape before the detective 

completed the question and before Denson replied that defendant was the "big 

man on the block." 

 Nevertheless, defendant moved for a mistrial. The trial court denied the 

motion because the jury had not heard the inadmissible portion of the tape. The 

court solicited defense counsel's input in crafting a cautionary instruction, and 

the court then instructed the jury as follows: 

Now, when you were here we were at Page 6 on 

the transcript, and as it was being played . . . there was 

a question posed by the detective, and at that point [the 

prosecutor] stopped the recording. There's a reason for

that, because this Court has made a determination as to 

what is evidence in this case and what is not evidence 

in this case. And as you can see on your transcript the 

bottom half has been cut out. And the reason it's cut 

out is because . . . that's not the evidence that you are to 

– that is not evidence in this case. 

You are hearing a selection made by the Court of 

the recording of the statement that was given by Tonya 

Denson to the police. What you are hearing is what the 
34 A-2503-19

prosecutor, defense counsel and the Court have agreed 

is the appropriate evidence for your consideration in 

this case. 

So keep in mind that what is evidential is – is 

what you hear on this tape. You're not to speculate 

about what you don't hear. You are not to speculate or 

wonder in any way about what you are not hearing on

the audiotape. All right? Let's proceed. 

 Thus, the jury never heard the remark that had been redacted. Because 

the trial court also provided the jury with a strong curative instruction, defendant 

was in no way prejudiced by the prosecutor's error. Therefore, we reject his 

contention on this point. 

IX. 

 Turning to Point VIII of defendant's brief, we also reject his argument that 

the prosecutor improperly questioned Berry about defendant's rap videos. When 

the prosecutor asked Berry if the videos "talk about shooting people," she 

answered "no" and defense counsel objected and moved for a mistrial. The trial 

court denied this request, but gave the jury the following instruction: 

All right, so ladies and gentlemen, the prosecutor 

asked this witness questions related to what she knows 

about defendant's life. And to that extent, he inquired 

about [defendant's] participation in the creation of rap 

music. 

We all know and all have an understanding what 

rap music is all about is – is – is lyrics that – that – that 
35 A-2503-19

talk about the urban experience, the urban drug culture 

where they're shooting and where there's drugs. 

Just because someone engages in and writes 

music and – and participates in the production of music 

related to rap music is not evidence that a person has 

committed an offense such as is charged in this 

indictment. 

So to that extent, you are not to consider just 

because Mr. Carter may have participated in the 

production of rap music that he is in any – that that 

constitutes some sort of evidence that he committed any 

of these offenses. 

We presume that the jury followed this instruction. Smith, 212 N.J. at 409. 

Contrary to defendant's contention, this case is plainly distinguishable 

from State v. Skinner, 218 N.J. 496 (2014). In that case, our Supreme Court 

reversed the defendant's convictions of a number of charges, including 

attempted murder and aggravated assault, finding that he had been unduly 

prejudiced by the admission at trial of graphically violent rap lyrics he had 

written which "could be fairly viewed as demonstrative of a propensity toward 

committing, or at the very least glorifying, violence and death." Id. at 499-500, 

521. In so doing, the Court "reject[ed] the proposition that probative evidence 

about a charged offense can be found in an individual's artistic endeavors absent 

a strong nexus between specific details of the artistic composition and the 
36 A-2503-19

circumstances of the offense for which the evidence is being adduced." Id. at 

522.

Here, not only were no violent lyrics (written by defendant or someone 

else) introduced into evidence, but Berry denied that defendant's videos talked 

about shooting people, and the court administered a curative instruction in 

accordance with Skinner. Therefore, we reject defendant's contention that he 

was unduly prejudiced and denied a fair trial as a result of the prosecutor's 

questioning of Berry. 

X.

 In Point IX, defendant argues that the trial court erred by denying his 

motion for a mistrial after the prosecutor questioned Detectives Brandt Gregus 

and David Abromaitis in a manner that defendant believes suggested he was 

identified as the shooter in a surveillance video. This argument lacks sufficient 

merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). 

 Our review of the record demonstrates that Gregus referred to defendant 

by name rather than as the "suspect" when testifying about a photo of three 

people taken from a surveillance video. However, the trial court struck the 

testimony and gave the jurors an immediate curative instruction directing them 

to disregard the remark. Thus, there was no basis for a mistrial. 
37 A-2503-19

Similarly, the trial court later correctly denied defendant's motion for a 

mistrial after Abromaitis stated that the "suspect" was depicted in photographs 

he reviewed on the witness stand. Moreover, this remark was fleeting and 

because defendant was not convicted of the murder and weapons charges that 

were the subject of this testimony, he failed to demonstrate he was prejudiced 

in any way by the remark. 

XI. 

In Point X of his brief, defendant asserts he was denied a fair trial when 

the prosecutor (1) questioned Mills regarding defendant's unemployment; (2) 

mischaracterized Mills's police statement; (3) suggested that defendant 

endangered Mills's children through his drug activities; and (4) questioned Mills 

as to her failure to make a complaint over her treatment by police. However, he 

has not provided any legal argument supporting this contention other than his 

point heading. See State v. Hyuang, 461 N.J. Super. 119, 125 (App. Div. 2018) 

(an issue not briefed is deemed waived); see also State v. Hild, 148 N.J. Super. 

294, 296 (App. Div. 1977) (stating that the "absence of any reference to the law" 

in a brief "suggests a like paucity of authority helpful to the party."). 

In any event, we have reviewed each of the examples defendant cites and 

find no impropriety on the prosecutor's part in his questioning of Mills. Contrary 
38 A-2503-19

to defendant's contention, defense counsel opened the door to inquiries about 

defendant's employment when he elicited testimony from Mills regarding 

defendant's activities as an entrepreneur. Moreover, the prosecutor 

appropriately cross-examined Mills on defendant's drug use after she stated that 

he "hustled" on the street. 

The trial court sustained defense counsel's objection to the prosecutor's 

question asking Mills whether her children were present in the home during the 

period in which the drug paraphernalia the police found in her home was there. 

Mills never provided an answer to this question. Finally, we are satisfied the 

trial court correctly overruled defense counsel's objection to the prosecutor's 

question concerning why Mills did not complain to police about her treatment 

by them during her interview with them. 

XII. 

 In Point XI, argues that the trial court erred by referring the jurors to the 

civil standard of proof while reinstructing them during deliberations. This 

contention is meritless. 

The court gave this instruction to the jury in response to its request for 

examples of "reasonable doubt" or a shorthand explanation of this term. After 

consulting with counsel, the court first told the jurors where the definition of 
39 A-2503-19

reasonable doubt could be found in the written instructions it had previously 

provided to them. The court then instructed the jury as follows: 

The State must prove . . . every element of an offense 

beyond a reasonable doubt. So what's a reasonable 

doubt? Let's start with this. 

As – as I told you, in a civil case the plaintiff has 

to prove the case by a standard of proof that we call a 

preponderance of the evidence. That means the greater 

weight of the evidence. In that case, imagine a scale of 

justice. In order for a plaintiff to achieve a 

preponderance, he would have to tip the scale ever so 

slightly to his side.

In a criminal case, the burden of proof is higher. 

We call that burden of proof beyond a reasonable doubt. 

Beyond a reasonable doubt is satisfied when you are

firmly convinced of the defendant's guilt. That is you 

don't harbor in your mind an honest and reasonable 

uncertainty about the guilt of the defendant after you 

have given full and impartial consideration to all of the 

evidence. 

Now, of course, a doubt is one that leaves the 

reasonable person, after hearing the evidence, in doubt. 

Whether that doubt arises from the evidence itself or 

from a lack of evidence. The law – the law only 

requires that you be firmly convinced, because we 

cannot know most things with absolute certainty. So in 

criminal cases, the law does not require proof that

overcomes every possible doubt. 

If, based on your consideration of the evidence, 

you are firmly convinced that the defendant is guilty of 

the crime charged you must find him guilty. If, on the 

other hand, you're not firmly convinced of the 
40 A-2503-19

defendant's guilt, you must give the defendant the 

benefit of the doubt and find him not guilty. 

 Contrary to defendant's contentions, we discern no impropriety in the 

court's instruction. Defendant does not explain how the court's explanation of 

the reasonable doubt issue prejudiced him in the context of the entire charge. 

See State v. Torres, 183 N.J. 554, 564 (2005) (A jury charge "must be read as a 

whole in determining whether there was any error."). The court clearly 

explained that the civil standard of proof did not apply and that the criminal 

standard was far more rigorous. In this context, the mere mention of the civil 

standard, in order to emphasize the State's greater burden of proof in this 

criminal case, does not mandate reversal. 

XIII. 

 Prior to sentencing, defense counsel moved for a new trial, arguing that 

the trial court had erred in: (1) denying the severance motion; (2) permitting the 

prosecutor to reference defendant's possession of marijuana in his opening 

statement; (3) admitting the identification of defendant by Gregus; (4) admitting 

the identification of defendant by Abromaitis; (5) permitting Celentano to 

testify; (6) admitting autopsy photos; (7) allowing the prosecutor to question 

Berry regarding defendant's rap videos; (8) permitting the prosecutor to question 

Mills as to why she had not complained of the abusive treatment of her by police; 
41 A-2503-19

and (9) charging the jury on reasonable doubt. The trial court denied the motion 

finding that: (1) counsel's arguments were, in large measure, completely 

unrelated to the counts dealing with the drug charges; (2) each issue had been 

addressed by the court with ample reasons set forth on the record; and (3) 

nothing in counsel's arguments indicated that the issues had been wrongly 

decided. 

In Point XII of his brief, defendant merely recites the same assertions he 

made to the trial court without providing any additional legal argument, noting 

that each has been raised in a separate point in his appellate brief. We have 

already rejected all of defendant's contentions. Therefore, we are also satisfied 

that the court's denial of the defendant's motion for a new trial was not "a 

miscarriage of justice under the law." See R. 2:10-1; State v. Labrutto, 114 N.J. 

187, 207 (1989). 

XIV. 

Finally, defendant asserts in Point XIII of his brief that the cumulative 

prejudice of the errors he raises deprived him of a fair trial. Having rejected 

defendant's argument that any reversible error occurred during his trial, we also 

reject his cumulative error argument. 

Affirmed.