STATE OF NEW JERSEY v. PHILIP S. PATRICK

NOT FOR PUBLICATION WITHOUT THE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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5597-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILIP S. PATRICK, a/k/a

PHILLIP PATRICK,

Defendant-Appellant.

______________________________

October 18, 2016

 

Argued September 15, 2016 Decided

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-00181.

Susan Brody, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief).

KimberlyL. Donnelly,Special DeputyAttorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a June 13, 2014 judgment of conviction after a jury trial. We affirm.

D.D. (the victim) was shot near the Richmond Beer Gardens (the Richmond) in Plainfield on September 27, 2009. Outside the Richmond, the responding officer, Lieutenant Jeffrey Plum, asked the victim several times whether he knew who had shot him, but the victim repeatedly stated that he did not and Lieutenant Plum was unsure whether the victim "knew what was going on." After receiving emergency medical treatment at the scene, the victim was transported to the hospital, where he was pronounced dead.

Outside the Richmond, Lieutenant Plum noticed defendant, who he knew from prior police work, standing at the edge of the crowd that had gathered. Lieutenant Plum told defendant to wait because he considered him a material witness. Defendant went with officers to police headquarters to give a statement and then went home.

Officers from the Plainfield Homicide Task Force watched security videos provided by the Richmond and nearby car dealership. The Richmond video included footage from inside the bar prior to the shooting. It showed defendant on a phone call speaking with a caller for about one minute before entering the bathroom. At approximately the same time as defendant was seen on the phone, his phone log revealed that he received an approximately one-minute-long call from his sister's phone. Roughly one minute later, the sister's boyfriend, Jamal McNeill, an alleged ranking gang member, entered the Richmond and defendant met him at the door. They went into the bathroom together, and were later joined by the victim and another man. When the four men exited the bathroom, defendant and McNeill left the bar through a side door and walked eastbound down East Third Street.

Later footage showed defendant, the victim, and others standing together outside the Richmond. Defendant, the victim and a third man left the group and began walking west. The third man split off from the victim and defendant who continued down the street together. Seven seconds later, the victim dropped to the ground. No gun flash was visible, nor was any weapon. Defendant is seen on the video returning to the Richmond.

In February 2010, defendant was indicted for first-degree murder "as a principal and/or as an accomplice," N.J.S.A. 2C:11-3; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. While incarcerated awaiting trial, defendant met Edwin Price. Defendant allegedly told Price about his gang involvement and how he shot the victim. Price approached the Union County Prosecutor with this information and agreed to testify against defendant.

The jury trial began on January 14, 2014. The trial judge initially instructed the jury, listing the three crimes with which defendant was charged: murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. During the prosecutor's opening statement, he told the jury

The case is charged as defendant committed this murder as a principal or accomplice and the judge will explain the law at the end. You can find guilt by either means. You don't have to be unanimous on which, but the person as accomplice has to share the intent. . . Is [defendant] the shooter, or is [defendant] the person who set it up?

During his opening, defendant's lawyer remarked

[T]he State is charging my client . . . with murder as a principal which means he actually pulled the trigger, but also murder as an accomplice in that he was closely allied with someone else with the intent to cause the murder so he's legally responsible for one of those two reasons.

Despite the fact several people were close by, there were no eyewitnesses to the shooting. The State's key witness was a woman we identify in this opinion as Cathy.1 Cathy testified she and three female friends had gone to the Richmond that night and sat with defendant and another man. Cathy went outside with her friend to smoke a cigarette, and defendant remained in the bar. Cathy saw the victim and another man outside, and walked over to them. While they were outside, the victim said he wanted to go home. Cathy testified a car pulled up, and the victim walked over to talk to the driver while she and her friend waited. After the car pulled around the corner, the victim was on the corner speaking with defendant. Cathy went back inside the bar. When the defendant reentered the bar a few minutes later, Cathy went back outside where she saw the victim lying on the ground.

The bartender testified she saw the victim and a man she did not know go into the bathroom. When the unknown man came out of the bathroom, he left the bar with defendant through a side door. Defendant returned and ordered two beers and went outside again after police arrived.

A neighbor testified she had been sitting in her car at the corner of Richmond and Third Streets in Plainfield drinking with her cousins, when she heard someone screaming. She jumped out of the car and saw a woman standing over a body. Before the screaming began, she had seen five or six people standing out in front of the Richmond, "playing around," and had seen two men walking across Third Street. She saw everyone go into the bar, then two men came out and both walked across the street. Seconds later, she heard gunshots and saw a body on the sidewalk next to a parked van.

Another neighbor testified on the night of the incident he had been at home when he heard rapid gunshots. About three-to-five minutes after hearing the shots, he opened his door and saw a "pretty big" black or Hispanic man jogging down the sidewalk across the street from his house, away from the direction of the Richmond, saying "they're shooting up there." Another bystander testified he had driven to the Richmond and passed two black men talking on the phone on the sidewalk next to the fence of a car dealership. One of the men wore a red jacket and the other wore a black one.

Defendant's girlfriend testified she knew defendant was a member of the G-Shine gang, because he had told her so. Defendant also told her McNeill had a higher rank in the gang.

Price testified about meeting defendant in jail after learning they were members of the same gang. Price's gang name was "Smoke," and he described himself as a "foot soldier" but said defendant had identified himself as a "five-star," a much higher rank, which he had attained by doing a "187," gang code for murder.

Price recounted how defendant told him "Dude", the victim, had been selling drugs near the projects, but "Dude" had better drugs than another high-ranking G-Shine member, which was cutting into G-Shine's profits. The G-Shine member told "Dude" if he wanted to sell drugs in that location, he would have to sell them for G-Shine. According to Price, the G-Shine member gave "Dude" drugs to sell for G-Shine, but "Dude" took the drugs and never paid the gang back.

According to Price, defendant got the "green [light] from big homey," whose street name was "Mally G." Price testified "Mally G's" real name was "Jamal or something like that," and he dated defendant's sister. As a result of the "green light," Price testified, defendant "took the position." Defendant told Price two females, one of whom was on a porch, lured "Dude" around a corner. According to Price, defendant shot the victim as he came around the corner and then disposed of the weapon. Defendant told Price "all they had" on him was that he had been seen walking back from the scene. Price stated prior to the murder, defendant had been a "three-star," but this act promoted him to a "five-star."

Under direct examination, Price disclosed he had made previous suicide attempts, had been experiencing auditory and visual hallucinations since his youth, and was dependent on numerous substances. At the time of trial, Price was taking medication. Price testified, after his suicide attempt, when he returned to jail, he heard someone had been in his room, and saw a member of G-Shine talking to someone and pointing at his door. According to Price, this caused him to change tiers at the jail and have himself transferred into protective custody. When prosecutors asked why he had done so, Price replied "snitches don't live long," and he had been labeled "food." He had switched his allegiance from G-Shine to a new gang for the same reasons.

Sergeant Lawrence Brown of the Plainfield Police Department was qualified as an expert on gang culture. He testified a five-star general would run the G-Shine gang in Plainfield, and his superior would be an OG, a sort of regional manager. According to Sergeant Brown, a gang member who followed gang protocol could be promoted, while one who broke protocol could be disciplined, and only the OG could authorize labeling someone as "food."

Detective John Marcelli of the gang intelligence unit was qualified as a gang expert. He testified G-Shine would, as a rule, investigate allegations someone was a "snitch" before taking action. According to Detective Marcelli, one way to do so would be to see whether the person's name appeared in another person's discovery. Without proof, there would be no "green light," but if there was proof, the snitch would either be disciplined or labeled "food."

Detective Marcelli was permitted to read a number of letters, written to and from defendant, into the record and to interpret for the jury sections he identified as coded language, directing others to impose punishment or gang discipline on Price because such statements indicated consciousness of guilt.2

The defense produced no witnesses. During the charge conference, the State requested the court include a charge for conspiracy or accomplice liability. The trial judge rejected the suggestion because there was no evidence in the record to support the theory another person was the shooter. Defense counsel requested the court's permission to tell the jury that accomplice liability was no longer in the case. The request was denied.

On February 6, 2014, defendant was convicted of all counts. On June 13, 2014, the court heard and denied defendant's motion for a judgment of acquittal or new trial. The trial judge sentenced defendant to a forty-five-year prison term for the murder charge, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 to -9; merged the second-degree weapons offense into the murder charge for sentencing purposes; and sentenced defendant to a concurrent four-year term for third-degree unlawful possession of a weapon. This appeal followed.

On appeal, defendant raises the following issues

I. THE COURT'S ERRONEOUS RESPONSE TO THE JURY'S QUESTION AS TO WHETHER DEFENDANT'S CONDUCT COULD "EXPAND BEYOND THE OPERATION OF A WEAPON" CREATED THE POTENTIAL FOR A FLAWED AND UNSUSTAINABLE VERDICT (NOT RAISED BELOW).

II. THE PROSECUTOR COMMITTED MISCONDUCT, AND IRREPARABLY TAINTED THE TRIAL, BY REPEATEDLY SOLICITING INADMISSIBLE TESTIMONY FROM HIS WITNESSES STRONGLY SUGGESTING THAT THEY HAD REASON TO FEAR RETALIATION FROM DEFENDANT OR HIS ASSOCIATES (NOT RAISED BELOW).

III. THE COURT ERRED IN PERMITTING THE STATE TO INTRODUCE A PLETHORA OF EXPERT TESTIMONY ABOUT GANGS THAT FAR EXCEEDED THE SCOPE AUTHORIZED UNDER TORRES AND GOODMAN[3].

IV. BECAUSE PATRICK'S LETTERS FROM THE JAIL DID NOT REVEAL A CONSCIOUSNESS OF GUILT AND WERE NOT ADMISSIBLE ON ANY OTHER BASIS, THEIR ADMISSION DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).

V. THE TRIAL WAS IRREPARABLY TAINTED WHEN LIEUTENANT PLUM TESTIFIED THAT HE KNEW MR. PATRICK "FROM PREVIOUS POLICE CONTACTS" (NOT RAISED BELOW).

VI. THE 45-YEAR TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

In his pro se supplemental brief, defendant argues the following

I. THE TRIAL COURT ERRED SUA SPONTE BY NOT BELATEDLY INSTRUCTING THE JURY THAT THE DEFENDANT MR. PATRICK[] COULD NOT BE CONVICTED AS AN ACCOMPLICE.

II. THE DEFENDANT-PETITIONER WAS SUBJECTED TO EXTENSIVE UNDUE PREJUDICE RESULTING FROM THE INTRODUCTION OF EXCESSIVE INADMISSIBLE OTHER-CONDUCT EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED PRIOR TO COFIELD/MARRERO[4] TESTS, AND IF ADMITTED SHOULD HAVE BEEN SANITIZED AND FOLLOWED BY MANDATORY LIMITED-USE INSTRUCTIONS TO PREVENT THE JURY FROM CONVICTING DUE TO THE APPELLANT BEING A "BAD PERSON".

III. THE AGGREGATE 45[-]YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE MURDER CONVICTION WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED STATE V. NATALE.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF THIRTY-YEARS.

IV. THE APPELLANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ELICITED TESTIMONY FROM LIEUTENANT PLUM THAT HE KNEW MR. PATRICK "FROM PREVIOUS POLICE ENCOUNTERS."

V. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-PETITIONER MOTION FOR A NEW TRIAL ON THE GROUND THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

I.

Defendant argues the court erroneously instructed the jury regarding "causation" in response to a question about the murder charge instruction. We disagree.

During deliberations, the jury sent out a note asking: "Is it possible for [the court] to elaborate on the definition of causation?" The trial judge explained the jury was required to determine whether "but for the defendant's conduct the victim would not have died" and whether "[D.D.]'s death must have been within the design or contemplation of the defendant." The jury sent a second note asking if "'defendant's conduct' expand[ed] beyond the operation of the weapon in the crime?" The judge invited counsel to be heard before giving instructions. Defense counsel asked the judge to "[j]ust tell them that that question is for you to decide as judges of the fact."

The judge also instructed the jury

That question is for you to decide as the finders of the facts based on the evidence that you've heard in the case and based on your judgments deciding, you know, what evidence you find credible, what evidence you won't find credible. That question is for you to decide as judges of the facts.

Defendant argues the court should have instructed the jury not to consider an accomplice liability theory because the jury's second question suggests they were not convinced defendant was the shooter.

We review the court's instructions under the invited error standard.

Under the invited error doctrine, "trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). That principle of law gives voice to "the common-sense notion that a 'disappointed litigant' cannot argue on appeal that a prior ruling was erroneous 'when that party urged the lower court to adopt the proposition now alleged to be error.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340, (2010)).

 
[State v. Munafo, 222 N.J. 480, 487 (2015).]

"The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101 (2014). "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted). When considering whether an invited error requires reversal, we engage in "a close, balancing examination of the nature of the error, its impact on the . . . jury's verdict and the quality of defendant's motives and conduct in bringing about the error." State v. Harper, 128 N.J. Super. 270, 278 (App. Div. 1974).

The failure of the trial court to instruct a jury on the difference between accomplice and principal murder was not error, because the evidence presented at trial and the theory proposed by the defense does not support a conclusion that the jury might have harbored a doubt about whether defendant had committed the murder by his own conduct. Under the principles of State v. Mejia, 141 N.J. 475 (1995), and State v. Brown, 138 N.J. 481, (1994), "courts must instruct juries that to convict one of murder . . . they need not unanimously agree on the form of murder, provided that they agree unanimously and beyond a reasonable doubt that the defendant is guilty of murder." State v. Harris, 141 N.J. 525, 546 (1995). Defendant does not demonstrate the court's instruction "cut mortally" into his ability to maintain a defense on the merits. Harper, supra, 128 N.J. at 277; State v. Corsaro, 107 N.J. 339, 345-46 (1987).

Here, the jury was not charged on accomplice liability, and the State, in summation, argued that defendant was the only person who could have killed the victim. Numerous witnesses testified defendant was the only person who was with the victim when he was killed, and Edwin Price testified defendant admitted to personally killing the victim. The judge's instructions were not clearly capable of producing an unjust result.

II.

Defendant argues the State's expert witnesses on gang culture and the admission of defendant's jailhouse letters exceeded the scope of the judge's initial ruling and went beyond the permissible limits set in Torres, supra, 183 N.J. at 567-72 and State v. Goodman, supra, 415 N.J. Super. at 231-34. Defendant also argues the judge's limiting instructions on the gang-related testimony were insufficient. We disagree and reject each of these arguments.

Gang expert testimony may be admitted at trial for the purpose of showing motive in a homicide case as long as it satisfies the Cofield factors. See Goodman, supra, 415 N.J. Super. at 230-31. In determining admissibility, the trial judge must decide if the proposed testimony is based on "specialized knowledge" that would "assist the trier of fact to understand the evidence or to determine a fact in issue," under N.J.R.E. 702, Torres, supra, 183 N.J. at 567-72; and whether the testimony constitutes impermissible evidence of "other bad conduct" or propensity, under N.J.R.E. 404(b) and Cofield, supra, 127 N.J. at 338. Goodman, supra, 415 N.J. Super. at 229-31.

An expert on gang culture may testify on "gang hierarchy, organization, and discipline," Torres, supra, 183 N.J. at 579-80, as well as gang culture, rivalry, symbolism and language. Goodman, supra, 415 N.J. Super. at 220-22, 230-31. Here, after conducting a Rule 104 hearing, the trial judge ruled the testimony of Sergeant Brown and Detective Marcelli was admissible under Torres, Goodman, and Cofield, if limited to statements about gang hierarchy, organization, discipline and language. Defendant argues the witnesses gave testimony beyond the scope of the court's ruling.

Sergeant Brown testified about G-Shine's organization and hierarchy, as a subset or "set" of the Bloods, and described its rank structure. He described a range of crimes, including murder, that lower-ranking members might commit in order to be promoted within the gang. Sergeant Brown also testified about G-Shine's disciplinary procedures, stating members who did not obey orders could be disciplined by anything from a "DP," which might require a member do push-ups, to a more severe punishment labelling a person as "food," which indicates they would be assaulted or murdered. Labelling someone "food" required approval or a "green light." A low-ranking member who participated in assaulting or murdering "food" could be promoted in rank.

Detective Marcelli testified about G-Shine's terminology and their policy toward "snitches," stating the "G" would not "green light" any action toward a person without obtaining proof they are cooperating with the police. He stated these proofs are normally found in the defendant's "paperwork," or the discovery documents for his case, listing the "snitch" as a witness or as someone who has provided information to investigators. He testified that if the proofs are insufficient, then no green light is given. Both Sergeant Brown and Detective Marcelli testified within the bounds of the categories prescribed by the judge's ruling, which was itself within the limits set by Torres and Goodman.

Defendant asserts the expert testimony emphasized the criminal and violent nature of the gang, which in turn damaged his character and removed any chance the jurors could remain fair and unbiased. Defendant does not demonstrate how the expert testimony was impermissible under Torres and Goodman.

We reject defendant's argument that judge's limiting instructions on the gang-related evidence were insufficient and were not given proximate to the witnesses' testimony. The judge twice instructed the jury "on the limited use of the evidence . . . to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Goodman, supra, 415 N.J. Super. at 231 (quoting Cofield, supra, 127 N.J. at 341) (quotations omitted).

During the testimony of defendant's girlfriend, who explained defendant was a member of G-Shine, the trial judge explained defendant's gang affiliation was a question for the jury to determine. The evidence "is only being admitted for one purpose and one purpose only . . . as it reflects on motive to commit the crime charged here, and you're only to consider it as it reflects on motive and not for any other purpose whatsoever."

During the charge conference, defendant proposed changes to the court's jury instruction on the gang-related evidence, which the court incorporated, explaining to the jury, evidence of gang membership would not normally be admissible to show defendant has a tendency to do wrong, and the jury had to be satisfied defendant was in fact a gang member before they were permitted to give that factor any weight. The court instructed the jury to consider defendant's gang membership for the limited purpose of determining motive, and if they found it was not demonstrative of motive, the jury was to disregard the evidence in its entirety. The court's instructions were proper and in accordance with defense counsel's request. Neither the gang-related testimony nor the court's instructions were clearly capable of producing an unjust result.

III.

Defendant argues his letters from jail, wherein he threatens or solicits others to harm Price, should not have been admitted at trial because they do not demonstrate consciousness of guilt, and even if properly admitted, should have been subject to a limiting instruction.

The State sought to introduce the letters written from defendant while he was in jail awaiting trial. The trial judge expressed concern that portions of the letters were irrelevant and unrelated to the trial and only allowed the detective to read redacted portions at trial related to G-Shine's procedures for dealing with "snitches," which was relevant to gang hierarchy and terminology. Defendant argues his letters should not have been admitted, as they did not demonstrate consciousness of guilt.

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion, State v. Burns, 192 N.J. 312, 332 (2007), and give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 306, 121 S. Ct. 1380 (2001). We do not disturb a court's decision "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

"Declarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with innocence or tend to establish intent are relevant and admissible." State v. Rechtshaffer, 70 N.J. 395, 413 (1976). In Rechtschaffer, the defendant stated if he discovered the identity of his informer, he would kill that person. Ibid. The Supreme Court found the statement was relevant and admissible despite the fact that it could have been interpreted as evidencing the defendant's "dismay at being unjustifiably incarcerated," where it was "consonant with an inference of an admission of guilt." Ibid.; State v. Johnson, 216 N.J. Super. 588, 611 (App. Div. 1987) (finding testimony of threats made by a defendant to a witness intending to induce him not to testify is admissible as evidence of the defendant's consciousness of guilt), certif. denied, 107 N.J. 647 (1987). It is the jury's function to determine the appropriate inference and weight to defendant's remarks. Rechtschaffer, supra, 70 N.J. at 413.

In Goodman, 415 N.J. Super., supra, at 231, we reviewed the admissibility of a letter written by the defendant to a witness, seeking to influence the witness's availability to testify. While incarcerated, the defendant sent a letter to a fellow inmate, mentioning a witness and asking him to "reach out to those mean streets and do your numbers." Id. at 217. We determined such evidence admissible as relevant to defendant's consciousness of guilt where the four prongs of Cofield were satisfied. Id. at 233-34 (citing Cofield, 127 N.J., supra, at 338). Under Cofield, evidence of other crimes or wrongs is admissible if the evidence satisfies the following criteria: (1) "relevant to a material issue," (2) "similar in kind and reasonably close in time" to the act alleged, (3) "clear and convincing," and (4) of sufficient probative value not to be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.

Here, defendant's jail letters satisfied the Cofield test. The trial court properly redacted the letters to include only the portions in which defendant threatened or solicited others to harm Price, which was relevant to show his consciousness of guilt. The letters demonstrate conduct "consonant with an inference of an admission of guilt." Rechtschaffer, supra, 70 N.J. at 413. Defendant's claims of innocence bear on the weight, not the admissibility, of the evidence, and it is appropriate in such cases to allow the jury to weigh defendant's statements. See Ibid.

Defendant also argues his letters are more prejudicial than probative and the court erred in failing to provide a sufficiently carefully crafted limiting instruction. As previously stated, the court instructed the jury to only consider defendant's gang membership for the limited purpose of determining motive. Therefore, because defense counsel did not object to the trial court's instruction, the plain error standard applies and reversal is warranted if the error is "clearly capable of producing an unjust result". R. 2:10-2.

IV.

We reject defendant's argument that the prosecutor committed misconduct by asking questions of Cathy and Price inferring they were afraid of or subject to retaliation. Defendant argues this line of questioning constituted prosecutorial misconduct, and the judge should not have allowed it.

"Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness." State v. Wakefield, 190 N.J. 397, 436 (2007). To warrant reversal, a prosecutor s questions must be 1) "clearly and unmistakably improper" and 2) substantially prejudice a defendant's fundamental right to a fair trial. Id. at 438. When Cathy was asked about her prior inconsistent statements, she repeatedly emphasized that she had been drunk when the police took her statement. The prosecutor then asked "[a]re you afraid of something?" She replied "[n]o." The prosecutor then asked if "[a]nything happen[ed] to you that may affect what you had to say about this incident?" Defense counsel objected to the question and the judge overruled. Cathy replied

Some things happened, but I still remember the way I remember it now. But if you're asking me if some things happened, some things did happen but not to make me change my mind about what happened that night. I'm just telling it as much as I can remember.

It was not improper for the prosecutor to inquire possible reasons for Cathy s inconsistent testimony. The prosecutor's questions were open-ended and allowed Cathy to respond with any possible explanation for her inconsistent statements.

Cathy said she was not afraid and nothing had changed her memory, repeatedly stating she had been intoxicated when she gave her prior statements. Neither the prosecutor's questions, nor Cathy's answers, would have "substantially prejudiced" defendant's right to a fair trial, and the judge did not err in permitting this line of questioning. See State v. Echols, 199 N.J. 344, 359-61 (2009) (finding no reversible error where prosecutor remarked on witness intimidation to explain inconsistent testimony, and briefly commented on the jurors' safety during the eighteen-day trial).

Defendant also asserts the prosecutor improperly questioned Price, specifically challenging Price's testimony that after he informed on defendant and returned to jail, he felt he was in danger. Price had been told someone had been inside his cell, where he kept his notes, and he stated other inmates appeared to be pointing and talking about him. Price said he knew he had been labeled a "snitch," and he had seen a lot of people get stabbed in the jail. Price said he left his prior tier because of this concern, and he was placed in protective custody. Price joined a different gang when he was transferred to another prison, because he was in danger of reprisals from G-Shine.5

"[T]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." Ramseur, supra, 106 N.J. at 320. "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972). Prosecutorial misconduct is grounds for reversal where it is so egregious that it deprives defendant of a fair trial. Neither the questioning of Cathy nor Price amounted to misconduct.

Defendant did not object to Price's testimony at trial. Therefore, it does not warrant reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. Because the same information regarding reprisals against Price were contained in defendant's properly admitted jailhouse letters, defendant fails to demonstrate that allowing the jury to hear that same information from Price was clearly capable of producing an unjust result.

V.

We also reject defendant's argument that Lieutenant Plum's testimony that he knew defendant "from previous police contacts" was so prejudicial as to warrant reversal of his convictions. Lieutenant Plum testified he was dispatched to the scene of the shooting, where he encountered the victim laying on the ground, suffering from gunshot wounds. He testified he knew both defendant and the victim because of prior police contact after having worked as a policeman in Plainfield for twenty-two years.

Lieutenant Plum's testimony about his prior knowledge of defendant was not reversible error. "[E]vidence suggesting that [a] defendant was previously involved in criminal activity is fraught with danger and creates an unfair risk that [a] defendant might be convicted, not by the evidence in the case for which his is on trial, but by virtue of his prior criminal conduct." State v. Mays, 321 N.J. Super. 619, 632 (App. Div.), certif. denied, 162 N.J. 132 (1999).

Such a risk is not evident here. After Lieutenant Plum described the basis for his knowledge of defendant, the prosecutor asked if he was familiar with the victim and how many years he had been on the police force. The court did not give a curative instruction as none was requested. The statement was brief and innocuous and not likely to have led to an unjust verdict.

VI.

In considering whether a guilty verdict was against the weight of evidence produced at trial, "[the appellate court's] task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting Rule 2:10-1), certif. denied, 134 N.J. 476 (1993). An appellate court "must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). The objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (1997).

Here, the jury heard testimony from numerous witnesses that defendant was the only person with the victim at the time of his death, and that he had a motive to kill the victim. There was sufficient evidence to support the jury's finding of guilt.

VII.

We reject defendant's argument his sentence is manifestly excessive and the court failed to provide a sufficient factual basis for its findings. Applying deferential standard to the sentencing court's determination, we affirm because there was no clear showing of abuse of discretion. State v. Bolvito, 217 N.J. 221, 228 (2014).

"The test 'is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Roach, 146 N.J. 208, 236 (1996) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)).

After hearing counsel's arguments, the trial judge reviewed defendant's criminal history, which included four prior indictable convictions, three of which were drug offenses and the other two violations of probation and found defendant had "committed offenses throughout his whole adult life," and based on his "character and attitude" he was likely to reoffend.

The court found aggravating factors three, the risk of re-offense, five, the substantial likelihood of involvement in organized criminal activity, six, the nature and extent of defendant's criminal record, and nine, the need for deterrence. The court rejected mitigating factor ten, finding defendant was not likely to respond favorably to probationary treatment. The court found the aggravating factors substantially outweighed the nonexistent mitigating factors. Defendant's additional sentencing arguments are without sufficient merit to warrant a written opinion. R. 2:11-3(e).

Affirmed.

1 We refer to the key witness under the pseudonym Cathy to protect her identity.

2 A letter dated August 25, 2010, from defendant to a Union County Jail inmate stated

The situation with Ole Boy is crazy for real. I found out when my lawyer came and asked if I knew him. That little nigga know I never talked to him about anything, let alone my case. He probably was mad over that little scuffle or something who knows I'm still mad at a nigga wanting me to go to jail especially knowing I ain't got shit to do with it.

A letter from defendant to a state prison inmate dated January 3, 2011 stated in part

As far as dude, he is down there. I know that for sure. So he on the compound somewhere . . . Bro, you can't be mad at me for some shit I ain't do. That little nigga made up a story so it won't hurt me, only help. Bro, I am way smarter than that to even explain my case to anyone. Anyone could have made up a story. His shit was funny though.

A March 8, 2011 letter from defendant to a Yardville inmate in stated in part

Bro, I heard your man Smoke down there now. Please throw him a hella party lemon heads. Not you, but someone.

A second letter from defendant to the state prison inmate, dated August 12, 2011, read in part

I don't know exactly where Smoke at down there. I will look again or try to see if your bro can check the computer for me. Edwin Price. Them ain't be niggas terrible. I don't got enough paper for them. You man End Dot terrible. So is everyone who in da whip down there. Yeah, your bro down there too. They still ain't move on some shit I told them to do. They can't take DP's but want to give them.

An undated letter from defendant to a Northern State Prison inmate stated in part

Mad shit going out there in the world and I am mad as hell knowing snake ass fat ass snitch set my family up like that. I told Moo stay away from him. You never liked the nigga and I know why. He is straight snake. I told bro watch his letters. They would be read in and out and watch his convos with niggas, but I hope he listened though cause the dude's funny style for real shit. It's a nigga down there who made up a fucked up story on me. Edwin Price.

3 State v. Torres, 183 N.J. 554 (2005); State v. Goodman, 415 N.J. Super. 210 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

4 State v. Cofield, 127 N.J. 328 (1992); State v. Marrero, 148 N.J. 469 (1997).

5 Defendant argues even if the prosecutor did not commit misconduct, Price's testimony should not have been allowed because there was no basis for Price to believe that defendant knew that Price had informed on him, or that he was in any danger. However, Price was already aware of the risk of cooperating against a fellow gang member.