STATE OF NEW JERSEY v. GREGORY GREENE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3387-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY GREENE,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE GREENE,

Defendant-Appellant.

_________________________________

October 30, 2014

 

Argued October 7, 2014 Decided

Before Judges Yannotti, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-09-0799.

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant Gregory Greene in A-3374-11 (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).

Michael A. Priarone, Designated Counsel, argued the cause for appellant Wayne Greene in A-3387-11 (Joseph E. Krakora, Public Defender, attorney; Mr. Priarone, on the brief).

Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in A-3374-11 and A-3387-11 (Grace H. Park, Union County Acting Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief in A-3374-12; Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief in A-3387-11.

PER CURIAM

Defendants Gregory Greene and his brother Wayne Greene were tried jointly and convicted of various offenses in connection with the November 3, 2007 robbery and homicide of Lazaro Tista. Defendants appeal from the judgments of conviction entered by the trial court on October 28, 2011. Gregory's appeal is docketed as A-3374-11, and Wayne's appeal is docketed as A-3387-11. We address both appeals in this opinion.

For the reasons that follow, in A-3374-11, we affirm Gregory's convictions and the sentences imposed by the trial court, but remand for entry of a corrected judgment of conviction. In A-3387-11, we affirm Wayne's convictions and the thirty-five year sentence imposed on count five, charging felony murder, but remand for re-sentencing on count nine, charging witness tampering, and for entry of a corrected judgment of conviction.

I.

Defendants were charged with purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); felony murder, N.J.S.A. 2C:11-3(a)(3) (count five); and bias intimidation, N.J.S.A. 2C:16-1(a)(3) (count six). Wayne also was charged with second-degree robbery, N.J.S.A. 2C:15-1 (count eight); and witness tampering, N.J.S.A. 2C:28-5 (count nine).1 Defendants' pre-trial motions for severance were denied. They were thereafter tried together before a jury. Count eight was severed during trial.

At the trial, the State presented evidence which established that, on the evening of November 3, 2007, at approximately 11:40 p.m., Tista exited a tavern in Plainfield. The bar's surveillance video showed Tista walking down West Front Street and turning onto Grove Street, in the direction of North Plainfield. At around 11:44 p.m., a vehicle owned by Gregory turned onto West Front Street from Grove Street.

About thirty minutes later, Plainfield police officers Reginald Johnson and Alana Walker, who were in an unmarked car at the intersection of West Front Street and Plainfield Avenue, observed two black men, dressed in dark clothing, running and entering a vehicle that had been idling at the corner. The vehicle then drove away.

Johnson and Walker were suspicious. They followed the vehicle and pulled it over after the driver made a right turn without stopping for a red light. Defendants' brother Willie Greene was the driver. The car was registered to Gregory, who was a passenger. Johnson looked inside the car with a flashlight, but did not see any weapons or anything that looked like blood. After a few minutes, Johnson allowed the car to leave, without issuing a citation.

At around 1:04 a.m., Johnson and Walker were flagged down and directed to the body of a man, who was later identified as Tista. The body was lying face down, about thirty to forty feet from the intersection of West Front and Grove Streets. The body was about one foot from the sidewalk near a bridge leading to North Plainfield, and about one block from Tista's home. The officers summoned medical assistance. Tista was pronounced dead at the scene. Medical testimony indicated that Tista died from blunt force trauma to the head, which could have been caused by any hard, blunt object. The officers did not find a wallet on the body, and the police never recovered one, nor did they find any weapon.

The police were told that Tista had a cellphone, which was later found in possession of S.C., Glasper's nephew.2 S.C. and Glasper lived together in the same home. S.C. told the police that he found the phone at school. He later said he found the phone in Glasper's garage on November 4, 2007. S.C. did not know to whom the phone belonged or that it had been stolen.

S.C. believed that it was S.P.'s phone because she sometimes slept in Glasper's garage. According to S.C., S.P. told him she had been out "papi hunting" and that she had hurt someone "real bad." One of the State's witnesses described "papi hunting" as the targeted robbing of persons of Hispanic or Latin American origin, who are believed to be undocumented, when they exit drinking establishments, at which time they are believed to be intoxicated and carrying cash.

During the investigation, the police spoke with F.B.S., who was fourteen years old in November 2007. She had recently run away from a group home with a friend, C.T., through whom she became acquainted with Gregory and Wayne. F.B.S. stated that, on the night of November 3, 2007, she was in a park across the street from Glasper's house, with Glasper, Gregory, two of Gregory's brothers, S.P. and others. F.B.S. said that, sometime between 11:00 p.m. and 11:30 p.m., Gregory and his brothers left in Gregory's car. F.B.S. and Glasper went into his house. A short time later, Glasper received a phone call and departed in Gregory's car.

During the afternoon of November 4, 2007, F.B.S. went with Glasper and others to a hangout, where she saw Gregory. He told her that, the night before, he hit a man in the back of the head with a metal bat, after which he and two of his brothers went through the man's pockets and took money from his wallet. Gregory said they threw the man's wallet away.

Gregory and his two brothers then pulled the man under a bridge. Gregory told F.B.S. that Glasper had been there, acting as a lookout, and that Willie had been the driver. F.B.S. said the next day, she spent time with Glasper, Gregory and two of his brothers at a park. Gregory repeated what he told F.B.S. the previous day.

The police also spoke with J.O., who lived in Plainfield and hung out with Glasper and the Greenes. Initially, J.O. told the police he believed S.P. and others were involved in the murder. However, J.O. eventually told the police that he and three of Gregory's brothers were present when Glasper and Gregory discussed the crimes. Gregory stated that he hit a Spanish man, took his wallet and threw him over a bridge.

In addition, the police spoke with T.S., who hung out with a group that included Glasper, the Greene brothers, and others. T.S. testified that he was with Glasper and F.B.S. on the night Tista was robbed and killed. Gregory arrived with one of his brothers and spoke with Glasper about "papi hunting." The next day, T.S. was with Glasper, Gregory and others, and Gregory spoke about having gone "papi hunting" the night before.

Gregory said they hit a man in the head with a bat and killed him, then dragged his body under the bridge, and took money from his wallet. Later, Gregory told T.S. that they used a metal bat in the attack. The following day, Gregory told T.S. that his brothers, including Wayne, had been with him when they got the "papi." He said they had thrown the bat into a lake or river. On November 17, 2007, the police charged Glasper, Gregory and Willie.

About ten months later, M.B. spoke with the police. She had been dating Wayne in November 2007. She told the police that Wayne called her at about 6:00 a.m. on November 4, 2007. He was upset. Wayne said he had gone "to work." M.B. believed that meant he had been robbing people. Wayne said "they overdid it." He had been with Glasper, Gregory, Willie and Justin Greene.

Wayne told M.B. that Glasper hit a Hispanic person in the head with a metal bat. He said that Willie remained in the car, and that the others went through the victim's pockets. He stated that they had "stashed" the bat. M.B. testified that she had several conversations with Wayne about the offenses. During those conversations, Wayne asked M.B. several times to say that he was with her that day if he ever was arrested. Wayne told M.B. that, if he was arrested, it would be her "head," because she was the only person who knew about the offenses, and because Wayne's family would never "snitch on him." M.B. was frightened by these threats, for herself and for her father.

M.B. broke up with Wayne in the summer of 2008, and left for Peru. She returned in September 2008, and was told that Wayne had been attempting to contact her. Two days later, she went to the police. Wayne was arrested on September 6, 2008.

Glasper testified that initially he did not tell the police about his participation in Tista's robbery and homicide, but after his arrest, he agreed to waive his rights and tell the police about his involvement in the offenses, as well as the roles that Gregory, Wayne, Willie and Justin played in them.

Glasper stated that on November 3, 2007, Gregory called him and asked if he knew anyone from whom he could buy "weed." Glasper said he did and they left with Wayne, Willie and Justin in Gregory's car. They discussed "papi hunting" and began to look for a Hispanic person to rob. Glasper said that most of these individuals are immigrants, who are often drunk and do not report the crimes.

At some point, Gregory identified a victim and gave Willie, who was driving the car, directions on where to go. Willie parked the car and Gregory got out to see if the victim was still walking down the street. Gregory returned and said the victim was coming. Wayne told him to go back and be sure. Glasper took a bat out of the trunk. Glasper participated in the robbery and killing of Tista, with Gregory, Wayne and Justin, while Willie remained in the car.

They discussed who would hit the victim with the bat. Glasper thought the bat would be used to hit the victim in the leg, to stop him from running. According to Glasper, the victim saw them and began to walk in a different direction. Gregory grabbed the bat out of Glasper's hand and said he would "do it" himself. According to Glasper, Gregory ran up to the victim and hit him in the head with the bat.

The others ran to the victim. Glasper took the bat and was told to be the lookout, while Gregory, Justin, and Wayne pulled the victim near the bridge and went through his pockets. After they took the victim's wallet, they returned to the car and divided the money. They stopped at the home of one of Gregory's relatives. On the way, police pulled them over, but let them go without issuing a summons. They stopped to buy "weed" and gas, and then traveled to Glasper's home. According to Glasper, the Greene brothers were in a celebratory mood, without any sympathy or remorse.

Neither defendant testified at trial.

Gregory and Wayne were convicted of aggravated manslaughter, as a lesser-included offense of murder (count one), unlawful possession of a weapon (count two), possession of a weapon for an unlawful purpose (count three), first-degree robbery (count four), and felony murder (count five). They were found not guilty of bias intimidation (count six). Wayne was also was found guilty of witness tampering (count nine). Defendants were sentenced on October 28, 2011. These appeals followed.

II.

We turn first to Gregory's appeal. He raises the following arguments

POINT I

THE TRIAL COURT VIOLATED THE BRUTON[3] RULE BY ADMITTING A STATEMENT PURPORTEDLY MADE BY THE CO-DEFENDANT INCULPATING THE DEFENDANT. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART 1, PARS 9, 10. (PARTIALLY RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN FAILING TO SEVER THE CHARGE OF BIAS INTIMIDATION, DENYING THE DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT IT COULD CONVICT THE DEFENDANT OF FELONY MURDER ON THE BASIS OF BEING A MERE CO-CONSPIRATOR TO ROBBERY. ACCORDINGLY, THE FELONY MURDER CONVICTION MUST BE VACATED. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DISMISSING A JUROR WHO HAD BEEN BRIEFLY ARRESTED DURING THE TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9.

POINT V

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

A. Admission of Co-defendant's Statements.

Gregory contends that the trial court erred by admitting testimony from M.B. that Wayne made statements to her implicating Gregory in Tista's robbery and homicide. Gregory contends that the admission of Wayne's statements violated his right to confrontation under the Sixth Amendment to the United States Constitution, and that his convictions must be reversed as a result. We disagree.

N.J.R.E. 803(b)(5) is an exception to the rule precluding the admission of hearsay. The rule permits a statement to be offered against a party if the "statement [was] made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." Ibid. The rule allows the admission of statements among co-conspirators provided the statements are made "'at the time'" and "'in furtherance of'" the conspiracy. State v. Savage, 172 N.J. 374, 402 (2002) (quoting N.J.R.E. 803(b)(5)).

Moreover, the co-conspirator exception "does not offend the Sixth Amendment's guarantee of a defendant's right to confront the witnesses against him." Ibid. (citing Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S. Ct. 2775, 2783, 97 L. Ed. 2d 144, 157-58 (1987); State v. Boiardo, 111 N.J. Super. 219, 229 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971)).

To qualify for admissibility under the rule, the State must meet the following conditions: (1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be "evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it."

[Ibid. (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)).]

It should be noted that "[a] conspiracy continues until its objective is fulfilled." Id. at 403 (citing State v. Cherry, 289 N.J. Super. 503, 523 (App. Div. 1995)). "If a statement is made after the conspiratorial objective is completed, it is generally not admissible under the co-conspirator exception." Ibid. (citing State v. Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991)). "[A] conspiracy may continue beyond the actual commission of the object of the conspiracy if it is shown that a conspirator enlisted false alibi witnesses, concealed weapons, or fled in order to avoid apprehension." Ibid. (citing Cherry, supra, 289 N.J. Super. at 523-24).

Moreover, statements relating to past events may be admissible [under N.J.R.E. 803(b)(5)] if they are "in furtherance" of the conspiracy and "serve some current purpose, such as to [provide] cohesiveness, provide reassurance[s] to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy."

[Ibid. (quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div. 1997)) (alteration in original).]

In deciding defendants' pre-trial severance motion, the trial court reviewed M.B.'s videotaped statement to the police and determined that Wayne's statements to M.B., which implicated Gregory, were made in the course of and in furtherance of a conspiracy because they were made in the context of Wayne asking M.B. to provide him with an alibi. The record supports the court's determination.

M.B. indicated that she had discussed the crimes with Wayne on a couple of occasions, and that he had asked her several times to provide him with an alibi. The trial court found that the statements Wayne made to M.B. about the offenses, and Gregory's participation in them, were part of his effort to have her provide him with an alibi. The record supports that finding. Indeed, Wayne's requests for an alibi would have made no sense if he had not first told M.B. about the crimes.

Even if the trial court erred by admitting Wayne's statements to M.B. implicating Gregory in the crimes, the error does not warrant reversal of defendant's convictions. A violation of a defendant's right to confrontation is subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986). To establish that the error was harmless, the State must show "'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Id. at 680, 106 S. Ct. at 1436, 89 L. Ed. 2d at 684 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).

We are convinced that if the admission of Wayne's out-of- court statements implicating Gregory was erroneous, the error was harmless under this standard. As we have explained, the evidence of Gregory's guilt was overwhelming. That evidence includes Gregory's many statements admitting his involvement in the offenses, as well as the testimony of Glasper.

Therefore, it is beyond a reasonable doubt that the admission of Wayne's statements to M.B. implicating Gregory did not contribute to the verdict. Clearly, there was sufficient evidence to find Gregory guilty even if Wayne's statements to M.B. implicating him in the offenses had not been admitted into evidence.

B. Severance of Bias Intimidation Charge.

Gregory argues that the trial court erred by failing to sever the bias intimidation charge. This issue was not raised below. Therefore, we must consider whether the court's failure to sever the charge for trial was erroneous and, if so, whether it constituted plain error, which is an error "clearly capable of producing an unjust result." R. 2:10-2.

Rule 3:15-2(b) provides that the court may order separate trials if "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses." In determining if joinder is prejudicial to a defendant, the court considers whether, if the crimes were tried separately, evidence of the severed offenses "'would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)) (alteration in original); see also State v. Oliver, 133 N.J. 141, 150-51 (1993).

Gregory argues that he was prejudiced by the references at trial to "papi hunting." He contends that the State would not have been allowed to introduce evidence concerning this practice under N.J.R.E. 404(b) if the bias intimidation charge had been severed. He argues that there was no evidence that he engaged in "papi hunting" other than that which was alleged in this case. He further argues that this evidence could not have been admitted to show motive or intent, because the only motive in this case was robbery. We are not persuaded by these arguments.

The State did not introduce evidence in this case that Gregory or Wayne engaged in acts of "papi hunting" other than in the incident involving Tista. Furthermore, some explanation of this practice of "papi hunting" was required because Gregory had used that term to describe what he was planning to do on the night Tista was robbed and slain. Thus, evidence regarding "papi hunting" would have been admitted even if the bias intimidation charge had been severed.

In addition, there is no indication on this record that Gregory was prejudiced because the bias intimidation charge was tried along with the other charges. As we stated previously, there was overwhelming evidence of Gregory's guilt, wholly aside from any testimony concerning "papi hunting." Furthermore, the jury found defendants not guilty of bias intimidation, thereby indicating that the evidence regarding "papi hunting" probably did not play a significant role in its decisions finding defendants guilty of the other offenses.

C. Jury Instructions on Felony Murder.

Gregory contends that his felony murder conviction must be reversed because the court's instructions permitted the jury to find him guilty of robbery as a co-conspirator. Gregory contends that conspiracy to commit robbery is not a predicate offense to felony murder. In support of this argument, Gregory relies upon State v. Grey, 147 N.J. 4, 14-17 (1996). This contention was not raised at trial. We therefore review the argument under the plain error standard. R. 2:10-2.

[Felony murder] is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to [N.J.S.A. 2C:38-2], and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants.

[N.J.S.A. 2C:11-3(a)(3).]

To be found guilty of felony murder, a defendant must be found guilty of a predicate offense. Grey, supra, 144 N.J. at 15-17. In Grey, the jury acquitted the defendant of the predicate crime of aggravated arson, for which he had been charged as a principal and an accomplice, and found him guilty only of conspiracy to commit arson. Id. at 16. The Supreme Court held that the defendant's conviction for felony murder could not stand, because "the substantive crime of conspiracy is not a predicate offense for felony murder." Id. at 15.

In this case, however, defendants were not charged with conspiracy to commit robbery. Defendants were charged with and were found guilty of the predicate offense of robbery. Thus, Gregory's reliance upon Grey is misplaced. See Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:2-6 (2013) (noting that liability for substantive crimes committed by co-conspirators must be distinguished from conspiracy to commit those same offenses).

D. Dismissal of Juror.

Gregory further argues that the trial court erred by granting the State's motion to dismiss a juror after summations, but before the jury was charged and began its deliberations. The juror had been arrested for a motor vehicle violation on her way to court. Gregory claims that the court abused its discretion by dismissing the juror because there was no "concrete reason" to believe that the juror could not deliberate fairly. We disagree.

Judges have a duty to preserve the impartiality of the jury throughout the trial court proceedings. State v. Tyler, 176 N.J. 171, 181 (2003). The standard for dismissing a juror during trial before deliberations have begun, is "for good cause shown." Rule 1:8-2(d)(1). A reviewing court may not disturb a trial court's decision to remove a juror "absent a clear showing that the trial court abused its discretion." State v. Mance, 300 N.J. Super. 37, 55 (App. Div. 1997) (citing State v. LaBrutto, 114 N.J. 187, 207 (1989)).

In this case, the court questioned the juror and she stated that her arrest and the experience with the police would not affect her ability to be fair and impartial. However, the court had legitimate concerns about the juror's ability to do so, based upon her demeanor when she discussed her arrest, which had just occurred. In addition, the juror had referred to the police in a derogatory manner, as reported by another juror who the court deemed credible. The record therefore supports the court's determination that there was good cause to dismiss the juror.

In support of his argument, Gregory relies upon State v. Adams, 320 N.J. Super. 360, 368-69 (App. Div.), certif. denied, 161 N.J. 333 (1999), but that case involved the discharge of a juror during deliberations. Here, the juror was dismissed before deliberations. The attorneys had completed their summations, and the next step in the trial was the jury charge. We are convinced that, under the circumstances, the court did not abuse its discretion by dismissing the juror.

E. Sentence

Next, Gregory contends that his sentence is excessive. Again, we disagree.

The trial court merged counts one to four with count five, charging felony murder, and found aggravating factors one, three and nine. N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); -1(a)(3) (risk that defendant will commit another offense); and -1(a)(9) (need to deter defendant and others from violating the law). The court found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (lack of prior criminal record). The court determined that the aggravating factors outweighed the single mitigating factor, and sentenced Gregory to forty years of incarceration, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Gregory argues that the record does not support the court's finding of aggravating factor one. He contends the court relied too heavily on the fact the perpetrators moved Tista's body, while he was in distress, in an apparent attempt to conceal him so that no one would come to his aid. Gregory says that Tista's body was not moved far and it was not hidden. He claims the perpetrators were trying to conceal themselves, not the body.

Gregory further argues that the record does not support the finding of aggravating factor three. He claims the court relied too heavily on the nature and circumstances of the offenses for this finding, and failed to consider his personal characteristics which purportedly "belie a risk of repetition."

Gregory acknowledges, however, that there was some basis for a finding of aggravating factor nine, based on the need to deter violations of the law. He contends, however, that deterrence is a factor in each case and this factor is entitled to less weight in the qualitative weighing of the aggravating and mitigating factors.

Gregory also contends that the court erred by failing to give significant weight to the single mitigating factor. He contends the court failed to consider his limited prior criminal record and the length of time he will be imprisoned.

In our view, these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, the record supports the court's findings on the aggravating and mitigating factors, and the weight given to them.

We are therefore convinced that Gregory's sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Accordingly, we affirm Gregory's convictions and the sentence imposed. We remand, however, for entry of a corrected judgment of conviction deleting the erroneous statement on page three that Gregory's conviction was the result of a negotiated plea.

III.

We turn to Wayne's appeal. He argues

I. THE ASSISTANT PROSECUTOR'S REPEATED SUGGESTION TO THE JURY IN HIS QUESTIONING OF STATE'S WITNESSES AND IN HIS OPENING STATEMENT AND SUMMATION THAT DEFENDANT WAS A "[PAPI] HUNTER" AND HAD COMMITTED OTHER OFFENSES AGAINST HISPANIC MEN WAS UNLAWFUL, INFLAMMATORY AND PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).

II. DEFENDANT WAS DENIED A FAIR TRIAL WHEN SEVERAL WITNESSES TESTIFIED THAT THE CO-DEFENDANT (WHO DID NOT TESTIFY) HAD MADE OUT OF COURT STAETMENTS TO THE EFFECT THAT THE DEFENDANT HAD PARTICIPATED IN THE ROBBERY.

III. THE TRIAL COURT ERRED IN EXCUSING JUROR [G.J.] THEREBY DEPRIVING THE DEFENDANT OF HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY AND DEFENDANT SHOULD BE GRANTED A NEW TRIAL.

IV. DEFENDANT'S CONVICTIONS MUST BE VACATED BECAUSE THE TRIAL COURT INCORRECTLY CHARGED THE JURY ON LIABILITY FOR CONDUCT OF ANOTHER AS IT RELATED TO THE VARIOUS COUNTS OF THE INDICTMENT, ERRONEOUSLY INSTRUCTED THE JURORS THAT THEY COULD CONVICT DEFENDANT OF CONSPIRACY TO COMMIT ROBBERY, AND REMOVED THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT FROM THE JUROR[S]' CONSIDERATION OF THE MURDER COUNT (PARTIALLY RAISED BELOW).

V. CUMULATIVE ERROR DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND HIS RESULTANT CONVICTIONS AND SENTENCE MUST BE VACATED.

VI. THE SENTENCES IMPOSED ON THE DEFENDANT FOR MURDER AND FOR TAMPERING WITH A WITNESS WERE EXCESSIVE AND MUST BE REDUCED.

In his supplemental pro se brief, Wayne raises the following additional argument

TRIAL COUNSEL'S STIPULATION NOT TO CROSS-EXAMINE THE STATE'S KEY WITNESS REGARDING THE WITNESS' TEN MONTH DELAY AND/OR FAILURE TO HAVE REPORTED TO POLICE DEFENDANT'S ALLEGED ADMISSION/INVOLVEMENT IN THE DEATH OF LAZARO TISTA WAS DEFIC[]IENT ASSISTANCE THAT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO THE EFFECTI[V]E ASISSTANCE OF COUNSEL; TO CONFRONT THE WITNESS AGAINST HIM, AND TO A TRIAL BY JURY. U.S. CONST. AMEND[S]. 6, 14; AND N.J. CONST. ART. 1, PARA. 10 (1947).

A. Prosecutor's Alleged Improper Remarks.

Wayne contends that the assistant prosecutor improperly suggested in his statements and questioning of the State's witnesses that he was a "papi hunter." Wayne contends that this was unlawful, inflammatory and prejudicial, and denied him a fair trial. This issue was not raised at trial. Therefore, we consider this contention under the plain error standard. R. 2:10-2.

"Prosecutors are afforded considerable leeway" in their statements to the jury "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citations omitted). If a prosecutor's comments are improper, they may constitute grounds for reversal, but only if they were so egregious as to deprive the defendant of a fair trial. Id. at 83 (citations omitted).

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.

[Id. at 83-84 (citations omitted).]

Here, the assistant prosecutor's references to "papi hunting" were not improper. As we stated previously, the assistant prosecutor's use of the phrase was consistent with how Gregory described the crimes against Tista, both before and after they were committed. Moreover, the assistant prosecutor did not assert that Wayne and Gregory had engaged in this practice on other occasions.

Moreover, defense counsel did not object to the remarks, thereby indicating that he did not view them as improper or prejudicial. Defense counsel also had referred to the practice in an effort to argue third-party guilt. In addition, the court instructed the jury that counsel's questions and arguments were not evidence. We presume that the jury followed the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999)).

We are therefore convinced that the court did not err by failing to preclude sua sponte the assistant prosecutor from referring to "papi hunting" in his remarks and questions.

B. Admission of Gregory's Out-of-Court Statements Implicating Wayne.

Next, Wayne argues that the trial court erred by allowing several witnesses to testify that Gregory made out-of-court statements implicating him in the robbery.

The record discloses the following. Prior to trial, and in response to defendants' severance motion, the State represented that it would limit its proofs to admissions by Gregory as to his own conduct. At the trial, Sergeant Jorge Jimenez of the Union County Prosecutor's Office, testified about the investigation of Tista's robbery and homicide. Among other things, Jimenez said that Glasper, Gregory, and Willie had been charged in November 2007, whereas Wayne and Justin were not charged until September 2008.

On cross-examination, Wayne's counsel reviewed with Jimenez the fact that the police had spoken to several witnesses in the days following the crimes, including Glasper, S.P., C.T., and F.B.S. They had provided information about persons who were involved in Tista's robbery and murder. At that point, however, the police had not charged anyone.

At sidebar, Wayne's counsel informed the court that he wanted to introduce portions of statements by these individuals in order to suggest that they were involved in the crimes against Tista or, at the very least, that there were other possible suspects. The court told counsel to defer this line of questioning until those witnesses testified, after which Jimenez could be re-called, if necessary.

Counsel then questioned Jimenez concerning the persons the police had spoken to. Counsel also questioned Jimenez about the date of Wayne's arrest, and its relation to M.B.'s statement to the police. Defense counsel elicited the following testimony from Jimenez

Q. . . . [M.B.] gave a statement to the police?

A. Yes.

. . .

Q. Based on that statement you decided to charge Wayne Greene?

A. Yes -

Q. Now -

A. - and every other statement we took, of course.

Q. Every other statement you took in November of 2007?

A. From the minute we found the victim up until the minute we took the statement from [M.B.] everything is looked at and then decided.

Q. But Wayne Greene wasn't arrested until September of 2008?

A. Correct.

Q. Two days after you took the statement from [M.B.]?

A. Correct.

Q. And the arrest warrant was actually sworn out the same day that you took the statement from [M.B.]?

A. There are two reasons for that. Right.

On re-direct, the assistant prosecutor questioned Jimenez about the decision to charge Wayne in September 2008. He elicited the following testimony

Q. [Defense counsel] asked you questions about . . . when it was that his client, Wayne Greene, was arrested. You remember those questions?

A. Yes.

Q. Specifically, [counsel] asked you about the decision to charge Wayne Greene occurring only after your conversations with [M.B.] Is that correct?

A. Yes.

Q. Detective, up until the point or before talking to [M.B.] did you have information implicating the defendant, Wayne Greene, in this homicide?

A. Yes.

The assistant prosecutor questioned Jimenez about whether these persons had been able to give the police proper names for individuals involved in the crimes against Tista, including Wayne. At that point, Gregory's attorney objected on hearsay grounds. The court overruled the objection and instructed the jury: "This is not being admitted for the truth of the matter, but just for the Sergeant's state of mind about why he did what he did or why he didn't do what he didn't do."

The assistant prosecutor then asked Jimenez whether these individuals had been "able to tell you that they had heard from the defendant Gregory Greene's brothers were also responsible for this homicide?" Counsel for both defendants objected, and the court sustained the objections. The prosecutor then asked: "Were they able to tell you that Gregory Greene's brothers specifically an individual by the name of Bones went into the pockets of Mr. Tista after he was knocked to the ground?"4 Counsel for both defendants objected, and the court brought counsel to sidebar.

The court asked the assistant prosecutor what he was trying to elicit from the witness, and he said he was trying to rebut the suggestion by Wayne's counsel that the decision to charge Wayne had been made only after M.B. spoke to the police. Wayne's counsel objected, stating, "I don't see how it's not being offered for the truth of the matter asserted. The State is also trying to prove that issue."

The court disagreed, however, and stated, "I think you opened [the door to the admission of this evidence] by your cross-examination about why is it that [Wayne] wasn't charged until that much later." The court permitted limited questioning on this subject, but instructed the jury

All right. I want to say this to the jury. It's a variation of the instruction I've given you earlier. That is, just because an attorney asks a question that assumes in the question a fact or an opinion, that has no evidential value. What has evidential value is the witness' answer.

[Also], if there is a question asked by any attorney that assumes a fact in the question or injects an opinion in the question, and I sustain objection to what the attorney said in that question, it has no evidential value.

The assistant prosecutor then asked Jimenez if the witnesses he had spoken to indicated "that an individual by the name of Bones was somehow involved in this homicide of Mr. Tista?" Jimenez replied, "Yes." The court then instructed the jury that this information was not being admitted "for the truth of the matter." The court said it was merely relevant to and should only be considered regarding "the detective's state of mind in terms of why he did something or why he didn't do something." The assistant prosecutor then asked Jimenez if he was able to identify the person known as "Bones" after speaking with M.B. He replied, "Yes."

On re-cross, Gregory's attorney re-visited this issue. He asked whether Jimenez had received multiple names from other witnesses. And on re-direct, Jimenez indicated that only "Bones" had been described as Gregory's brother.

Later in the trial, F.B.S. testified concerning Gregory's admissions that he, Glasper, and two of his brothers were involved in the crimes. Defense counsel did not object to this testimony, and the court gave no limiting instruction on it. In addition, T.S. testified to Gregory's incriminating statements implicating his brothers, including "Bones." There also was no objection to this testimony, and the court gave no limiting instruction concerning it.

We are convinced that the trial court correctly determined that defense counsel had opened the door to the introduction by the State of testimony from Jimenez about statements made by persons implicating Wayne in the offenses. The court properly found that the evidence was admissible for a limited purpose, specifically, to rebut the suggestion by Wayne's counsel that Wayne had only been charged after Jimenez had spoken with M.B.

Although Wayne argues that Jimenez made clear on his cross-examination that he did not charge Wayne solely on the basis of M.B.'s statements, the jury could have been left with that impression from his testimony. It was within the court's discretion to allow the State to offer brief testimony to clarify that issue. Furthermore, the trial court gave the jury several limiting instructions on this testimony, repeatedly making clear that the evidence was only to be considered for the purpose of explaining why and when Jimenez charged Wayne.

We are also convinced that, even if the admission of the statements implicating Wayne was erroneous, it was harmless beyond a reasonable doubt. There was overwhelming evidence of Wayne's guilt, including Wayne's admissions to M.B. There also was extensive circumstantial evidence of Wayne's involvement in the crimes. In light of that evidence, we are convinced that the brief references in Jimenez's testimony to statements of others implicating Wayne were not a factor in the jury's verdict.

C. Dismissal of Juror.

Like Gregory, Wayne argues that the trial court erred by dismissing the juror who had been arrested on the way to court before the jury had been charged and deliberations began. As we explained previously, this contention is entirely without merit. The court did not abuse its discretion by dismissing the juror.

D. Jury Instructions.

Wayne argues that the trial court erred in certain of its instructions to the jury.

1. Order of the Charge.

During the charge conference Wayne's counsel expressed concern about the order of the charge, with the discussion of vicarious liability preceding the discussion of the substantive offenses. Counsel did not object to this aspect of the charge. To the contrary, counsel agreed with the court that this was the way charges are usually done.

We reject Wayne's contention that the charge was confusing. We note that the court provided the jury with a written copy of the instructions. Furthermore, the jurors had the opportunity to ask questions, and some did. The jurors did not express any confusion about this aspect of the charge. Although Wayne maintains that the jurors would have been "better served" if the concepts of vicarious liability were repeated with respect to each count, this was not required.

2. Instructions on Aggravated Assault.

Wayne also argues that the trial court erred by instructing the jury that it could not consider co-conspirator liability with respect to the lesser-included offense of aggravated assault. Here, the court instructed the jury on purposeful or knowing murder and four lesser-included offenses: aggravated manslaughter; reckless manslaughter; second-degree aggravated assault; and third-degree aggravated assault.

The court discussed vicarious liability for these offenses twice during the charge conference. After Wayne's counsel noted concern about the order of the charge, the court stated

[T]he accomplice liability . . . makes clear that . . . you could have different states of mind between the aider and the abettor and the actor. But, this man was killed. So, in co-conspirator liability, you're liable for the action of your co-conspirator, whatever that may be.

. . . [T]he man died, so it can't be less than reckless manslaughter. The jury could find that the act in killing the victim was reckless manslaughter and not murder. But, it can't be an [aggravated] assault because the man died.

. . . [B]ut, in the accomplice liability, you can have those different levels. So that, you know, somebody could be sitting in that car or participating in the robbery with the state of mind that . . . I'm only going to commit an aggravated assault. That's all I think that's going to happen here.

So, I point that out to you I believe it's legally correct. But, I just wanted to point that out to you in case you missed it. If anybody wants to say anything about it, now is the time.

But . . . you can't be liable where a death took place. You can't be liable as

. . . a co-conspirator for aggravated assault.

Ultimately, in its charge on co-conspirator liability the court instructed that "[i]f . . . you find . . . that the defendant was a member of a conspiracy to rob Lazaro Tista, then you may also . . . find [the defendant] guilty of the murder or of any lesser included charges." However, later in the charge, when specifically addressing the lesser-included offenses of second and third-degree aggravated assault, the court told the jury that: "In considering the various aggravated assault [charges], be advised that only accomplice liability and not co-conspirator liability is applicable."

Wayne's counsel never disagreed with the court's analysis and never objected to the jury charge. We therefore review this section of the charge for plain error. R. 2:10-2.

We note that the State did not allege that Wayne struck Tista with the bat. Therefore, Wayne could be found guilty of murder, or one of the lesser-included offenses, only as an accomplice or as a co-conspirator.

To be guilty as an accomplice, Wayne would have had to possess the requisite intent to commit the murder or one of the lesser-included offenses. State v. Maloney, 216 N.J. 91, 105 (2013) (citing State v. Whitaker, 200 N.J. 444, 458 (2009)). Furthermore, "a co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy." State v. Bridges, 133 N.J. 447, 466-67 (1993).

Here, the court's instructions permitted the jury to find Wayne guilty of aggravated assault as an accomplice, if he possessed the requisite intent to commit that offense. However, the court correctly instructed the jury that it could not find Wayne guilty of aggravated assault as a co-conspirator, because if there was a conspiracy to commit an aggravated assault, the victim's death was not a reasonably foreseeable risk of the conduct undertaken to effectuate such an assault.

Even if the court erred by refusing to permit the jury to consider co-conspirator liability for aggravated assault, the error was not "clearly capable of producing an unjust result." R. 2:10-2. The jury found Wayne and Gregory guilty of aggravated manslaughter. In view of the evidence presented at trial, there was little likelihood that the jury would find Wayne not guilty of that offense, and guilty of aggravated assault, whether as an accomplice or as a co-conspirator.

3. Conspirator and Co-Conspirator Liability.

Wayne also argues that the instructions on vicarious liability "erroneously conflated the concepts of the substantive crime of conspiracy, accomplice liability and complicity pursuant to [N.J.S.A.] 2C:2-6b," thereby allowing the jury to find him guilty of robbery based only upon a finding of conspiracy to commit robbery.

However, the court did not charge the jury that it could find defendants guilty of conspiracy to commit robbery. Rather, the court charged the jury that it could find defendants guilty of certain crimes as a co-conspirator. This section of the instructions was drawn from the charge on conspiracy as an inchoate crime, but it contained general language relating to the definition of a conspiracy. Moreover, Wayne was never charged with conspiracy and that crime was not listed on the verdict sheet.

4. Conspiracy to Commit Robbery and Felony Murder.

In addition, Wayne argues that the instructions on robbery and felony murder were flawed. Like Gregory, Wayne contends that conspiracy to commit robbery is not a predicate offense for felony murder. He maintains that the felony murder conviction cannot stand because there is no assurance that the verdict was for a predicate offense to felony murder.

However, as we stated previously, Wayne was not charged with conspiracy to commit robbery. He was charged with the predicate offense of robbery, for which he could be found guilty as a co-conspirator. We conclude that the instructions on robbery and felony murder were not erroneous.

E. Cumulative Error.

Wayne argues that the cumulative impact of the alleged errors he cites require reversal of his convictions and remand for a new trial. We disagree. Wayne's argument on this point is without sufficient merit to warrant comment. R. 2:11-3(e)(2).

F. Sentence.

Wayne argues that his sentences are excessive and must be reduced.

Here, the court merged counts one through four with count five, which charged felony murder. The court found aggravating factors one, three and nine. N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); -1(a)(3) (risk that defendant will commit another offense); and -1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (lack of prior criminal record).

The court determined that the aggravating factors outweighed the single mitigating factor, and sentenced Wayne on count five to thirty-five years in jail, with a thirty-year period of parole ineligibility. The court also imposed a ten-year consecutive term on count nine, charging witness tampering.

Wayne argues that there was insufficient evidence to support the court's finding on aggravating factor one. He says that the record did not support the court's statement that the victim had been concealed so that no one would come to his aid. Wayne also argues that the record does not support the court's finding of aggravating factor three. Wayne was twenty-two years old at the time of sentencing, and he had no prior arrests or convictions as an adult or juvenile.

In addition, Wayne contends that the finding of aggravating factor nine should have been given little weight in the sentencing analysis. He further argues that the court erred by failing to provide an explanation for imposing a consecutive, maximum sentence of ten years on the witness tampering charge.

We are convinced that there is sufficient evidence in the record to support the court's findings of the aggravating and mitigating factors, and the weight given to them. We are also convinced that the thirty-five year sentence imposed on the felony murder count is not manifestly excessive or unduly punitive or an abuse of the judge's sentencing discretion, and the sentence does not shock the judicial conscience. See O'Donnell, supra, 117 N.J. at 215-16; Roth, supra, 95 N.J. at 363-65.

We conclude, however, that the court erred by failing to provide reasons for imposing the maximum sentence of ten years on the witness intimidation charge, and for requiring that the sentence be served consecutive to the thirty-five years imposed for the felony murder conviction. We remand the matter to the trial court for resentencing on that count.

F. Ineffective Assistance of Counsel.

In his supplemental pro se brief, Wayne contends that he was denied the effective assistance of trial counsel in violation of his rights under the United States Constitution and the Constitution of the State of New Jersey. He claims that his attorney erred by failing to cross-examine and confront M.B.

Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding. . . . Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.

[State v. Preciose, 129 N.J. 451, 460 (1992) (citation omitted).]

We decline to consider Wayne's claim of ineffective assistance of counsel. The trial record is inadequate to resolve the question of whether counsel's cross-examination of the witness was constitutionally ineffective under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defendant may, if he chooses, pursue the claim in a timely-filed petition for post-conviction relief.

Accordingly, we affirm Wayne's convictions and the sentence imposed on count five. We remand the matter to the trial court for resentencing on count nine. In addition, the judgment of conviction should be corrected to delete the erroneous statement on page three that Wayne's conviction was the result of a negotiated plea, and to remove count eight, which was severed, from the list of final charges.

Affirmed in A-3374-11, but remanded to the trial court to enter a corrected judgment of conviction; affirmed in part, reversed in part in A-3387-11, and remanded to the trial court for re-sentencing on count nine and correction of the judgment of conviction. We do not retain jurisdiction.

1 Muhammed Glasper, Willie Greene and Justin Greene also were charged in the indictment. These defendants pled guilty prior to trial. Glasper testified as a witness for the State pursuant to his plea agreement.

2 We refer to S.C. and others involved in the matter by their initials, in order to protect their privacy.

3 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

4 The evidence indicated that Wayne is also known as "Bones."