SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2577-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERIK L. JACKSON, a/k/a

TERIK LASHAUN JACKSON,

Defendant-Appellant.

_______________________________

Submitted April 27, 2020 – Decided May 11, 2020

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 17-03-

0355.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Christopher L. C. Kuberiet, Acting Middlesex County 

Prosecutor, attorney for respondent (Joie Piderit, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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-2577-17T12577-17T1

PER CURIAM 

Defendant appeals from his convictions for eleven counts of first-degree 

armed robbery, N.J.S.A. 2C:15-1(a)(2); three counts of the disorderly persons 

offense of simple assault, N.J.S.A. 2C:12-1(a)(1); and one count of fourthdegree resisting arrest, N.J.S.A. 2C:29-2(a)(2), for his involvement in an armedapartment robbery. He received an aggregate eighteen-year prison term subject 

to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.

Three men entered a second-floor apartment with handguns. The men 

threatened and searched the eleven people in the apartment, taking their phones, 

wallets, wedding bands, and cash. The men collected the items, placed them 

into a pillowcase, and got into a car. Nearby officers located the car and pursued 

it. The driver attempted to elude police, eventually fleeing the vehicle on foot 

while it was still in motion. An officer chased after the vehicle's driver, who he 

identified as defendant, and captured him. Police found co-defendant Bryan 

Lambert in a nearby park. Police recovered the victims' missing items from a 

pillowcase found in the car and arrested defendant and co-defendant.

On appeal, defendant argues:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO 

A FAIR TRIAL DUE TO THE STATE 
3

A-2577-17T12577-17T1

WITHHOLDING EVIDENCE THAT THE OWNER 

OF THE GETAWAY VEHICLE HAD CEREBRAL 

PALSY AND COULD NOT HAVE BEEN 

INVOLVED IN THE ROBBERY. [(Raised Below).]

POINT II

THE DEFENDANT WAS DENIED THE RIGHT TO 

A FAIR TRIAL DUE TO JUROR INATTENTION. 

(Not Raised Below).

POINT III

THE DEFENDANT WAS DENIED THE RIGHT TO 

A FAIR TRIAL DUE TO AN ERRONEOUS 

INSTRUCTION THAT THE JURY SHOULD 

CONSIDER THE DEFENDANT'S FLIGHT. [(Raised 

Below).]

POINT IV

THE SENTENCE IMPOSED WAS EXCESSIVE –

THE [JUDGE] IMPROPERLY CONSIDERED THE 

DEFENDANT'S AGE AND MATURITY. [(Raised 

Below).]

I. 

We begin by addressing defendant's argument, that the State violated 

discovery rules by not disclosing the owner (the owner) of the getaway car had 

cerebral palsy. Defendant contends that the owner therefore was unable to run 

and could not have been one of the men who fled in the car. The failure to make 

this disclosure occurred during trial, after defendants rested their respective 
4

A-2577-17T12577-17T1

cases. At that point, the State indicated its intention to elicit rebuttal testimony 

from Detective Kenneth Abode because co-defendant's counsel questioned 

Officer Tamika Baldwin, whose testimony created doubt that Detective Abode 

had sufficiently investigated the owner. Ultimately, the State decided not to 

question Detective Abode after hearing defense counsels' objections. 

"A trial [judge's] resolution of a discovery issue is entitled to substantial 

deference and will not be overturned absent an abuse of discretion." State v. 

Stein, 225 N.J. 582, 593 (2016). However, we do not need to defer "to a 

discovery order that is well 'wide of the mark,' or 'based on a mistaken 

understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 

(2016) (citation omitted) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 

207 N.J. 344, 371 (2011)). We review the meaning or scope of a rule de novo

and need not defer to the trial judge's interpretations "unless we are persuaded

by [his or her] reasoning." State v. Tier, 228 N.J. 555, 561 (2017). We see no 

such abuse.

After a defendant's indictment, a prosecutor is obliged, as part of its 

discovery obligations, to provide the defense with the names, addresses, and 

records of statements of any person the prosecutor may call as a witness. R.

3:13-3. There is a continuing duty to provide discovery pursuant to Rule 3:13. 
5

A-2577-17T12577-17T1

R. 3:13-3(f). "Prosecutors are permitted to respond to arguments raised by 

defense counsel as long as they do not stray beyond the evidence." State v. 

Morais, 359 N.J. Super. 123, 131 (App. Div. 2003). 

There is no discovery violation as to the State's potential rebuttal witness

because the State did not interview the owner. Furthermore, after the assistant 

prosecutor represented that Detective Abode would testify that the owner of the 

vehicle had cerebral palsy and was not capable of running and therefore could 

not have been one of the men fleeing from the car, defense counsel objected and 

the State decided not to produce Detective Abode as a rebuttal witness. The 

State did not interview the owner. And there was no prejudice because defense 

counsel was still able to argue to the jury that the owner was a suspect. Thus, 

there is no error.

II.

Defendant asserts for the first time that the judge erred by not dismissing 

Juror #7. According to the sheriff's officer, the juror was "dozing" just before 

the court broke for lunch, and that she seemed "like [she was] kind of trying to 

force herself to stay awake." Defense counsel did not request that the judge take 

any action about this allegation. We consider this contention for plain error. R.

2:10-2. 
6

A-2577-17T12577-17T1

Trial judges should take corrective action when counsel brings a sleeping 

juror to the judge's attention. State v. Scherzer, 301 N.J. Super. 363, 491 (App. 

Div. 1997). If the judge takes corrective action after learning of a sleeping juror

and defense counsel does not request any further action, there is no reversible 

error. Ibid. The Court in State v. Mohammed, 226 N.J. 71, 87-88 (2016), 

refused to find an abuse of discretion where a judge made factual findings, based 

on his own personal observations, that the juror was not sleeping. Even though 

"the juror had 'been having his eyes closed on and off throughout the trial . . . 

he seem[ed] to be paying attention.'" Id. at 88. 

Here, the judge adequately explained his observations of the juror on the 

record. The judge stated, "I've been looking at [Juror #7]. She . . . seems 

attentive to me. . . . I haven't made the observations [that] you've made." The 

assistant prosecutor agreed that he had not observed Juror #7 sleeping. The 

judge then stated that he would continue to "keep an eye on her" to make sure 

that the juror was awake. Even if we were to assume, contrary to what the judge 

found, that Juror #7 had been "dozing"—which is not supported by the record—

before the lunch break, counsel and the witness continued to delve into the same 

subject matter on direct examination. Thus, no prejudice resulted.
7

A-2577-17T12577-17T1

III.

Defendant contends that there was insufficient evidence to support the 

flight charge. He argues that the charge was "grossly prejudicial and 

unwarranted" considering defendant did not testify. 

Whether there is a sufficient evidentiary basis to support a flight charge is 

within the trial judge's discretion, and therefore we review for an abuse of 

discretion. State v. Long, 119 N.J. 439, 499 (1990). A flight instruction "is 

appropriate when there are 'circumstances present and unexplained which . . . 

reasonably justify an inference that it was done with a consciousness of guilt 

and pursuant to an effort to avoid an accusation based on that guilt.'" State v. 

Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010) (alteration in original) 

(quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). "The jury must be able 

to find departure and 'the motive which would turn the departure into flight.'" 

Id. at 176 (quoting State v. Wilson, 57 N.J. 39, 49 (1970)). 

If [the jury] find[s] that the defendant, fearing that an 

accusation or arrest would be made against him/her on 

the charge involved in the indictment, took refuge in 

flight for the purpose of evading the accusation or arrest 

on that charge, then [the jury] may consider such flight 

in connection with all the other evidence in the case, as 

an indication or proof of consciousness of guilt.

[Model Jury Charges (Criminal), "Flight" (rev. May 10, 

2010).]
8

A-2577-17T12577-17T1

"Flight of an accused is admissible as evidence of consciousness of guilt, 

and therefore of guilt." Long, 119 N.J. at 499. "That said, '[m]ere departure, 

however, does not imply guilt' as '[f]light requires departure from a crime scene 

under circumstances that imply consciousness of guilt.'" State v. Ingram, 196 

N.J. 23, 46 (2008) (alterations in original) (quoting Long, 119 N.J. at 499); see

also Wilson, 57 N.J. at 49 (stating "[a] jury may infer that a defendant fled from 

the scene of a crime by finding that he departed with an intent to avoid 

apprehension for that crime. It is not necessary that he flee from custody or that 

he be found hiding").

Testimony established that the "tipping point," that is "departure to avoid 

detection or apprehension," was present in this case. Ingram, 196 N.J. at 47. 

Police located the vehicle that defendant was driving, activated their overhead 

lights, and attempted to pull the car over. Defendant made several turns to elude 

police, "cut[ting] through . . . cars" and making "[a] series of zig zags through 

different buildings." When defendant realized he could not exit the parking lot 

in his car, he fled on foot while the car was still in motion. Given that the 

evidence reasonably supports an inference that defendant fled with "a 

consciousness of guilt" to avoid apprehension, the trial judge did not abuse his 

discretion in giving the flight instruction. Latney, 415 N.J. Super. at 175-76. 
9

A-2577-17T12577-17T1

IV.

Defendant argues that the judge erred by sentencing him to eighteen years' 

imprisonment—the same sentence as his co-defendant. He asserts that the judge

held him to a "higher standard" because he was older and should have had better 

judgment than his co-defendant. 

We review a trial judge's sentencing for an abuse of discretion. State v. 

Jones, 232 N.J. 308, 318 (2018). 

[A]n appellate court is bound to affirm a sentence, even 

if it would have arrived at a different result, as long the 

trial [judge] properly identifies and balances 

aggravating and mitigating factors that are supported by 

competent credible evidence in the record. Assuming 

the trial [judge] follows the sentencing guidelines, the 

one exception to that obligation occurs when a sentence 

shocks the judicial conscience. 

[State v. Cassady, 198 N.J. 165, 180 (2009) (emphasis 

added) (quoting State v. O'Donnell, 117 N.J. 210, 215-

16 (1989)).]

We only disturb a sentence where the judge did not follow the sentencing 

guidelines, the evidence did not support the aggravating and mitigating factors, 

or the sentence is clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 

(1984). 

Here, the judge considered the appropriate aggravating and mitigating 

factors, and he made findings on the record. The judge considered defendant's 
10 A-2577-17T12577-17T1

prior criminal history, including defendant's juvenile record consisting of 

weapons and theft offenses. Defendant has a previous obstruction and two 

resisting arrest convictions and a hindering charge. Defendant violated 

probation three times and ultimately went to state prison. Additionally, 

defendant violated his Intensive Supervision Program. 

Although the judge noted that defendant is older than his co-defendant 

and therefore should demonstrate "better judgment, more maturity," the judge 

placed greater emphasis on defendant's prior criminal record. We reverse a

defendant's sentence if there is an "obvious sense of unfairness" between 

sentences of co-defendants. State v. Roach, 146 N.J. 208, 232 (1996). "The 

question . . . is whether the disparity is justifiable or unjustifiable." Id. at 233. 

Here, defendant's sentence was not disparate, but rather equal to that of 

his co-defendant. The judge properly highlighted that defendant "has . . . an 

adult criminal record. He spent time in prison." The judge correctly countered

defendant's degree of culpability with defendant's age, maturity, and criminal 

history. Because defendant's sentence does not "shock[] the judicial 

conscience," Cassady, 198 N.J. at 180, and because the judge appropriately 

considered the aggravating and mitigating factors, the judge did not abuse his 

discretion. 
11 A-2577-17T12577-17T1

Affirmed.