STATE OF NEW JERSEY v. A.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.W.,

Defendant-Appellant.

___________________________________________

March 10, 2014

Submitted October 29, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2328.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant A.W. was convicted of three counts of endangering the welfare of a child, N.J.S.A. 2C:24-4, and one count of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The trial judge subsequently sentenced defendant to twelve aggregate years imprisonment. Defendant appeals, and we affirm.

I.

A grand jury issued an indictment charging defendant with two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a); five counts of endangering the welfare of a child, N.J.S.A. 2C:24-4; two counts of sexual assault, N.J.S.A. 2C:14-2(b); and one count of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The trial judge, at the request of the State, dismissed the two aggravated sexual assault charges prior to the start of trial.

The trial took place over five days in October, 2010. After deliberations, the jury found defendant guilty of three counts of endangering the welfare of a child, and one count of aggravated criminal sexual contact, and were unable to reach a verdict on the remaining four counts.

The trial judge sentenced defendant to an aggregate term of twelve years imprisonment, consisting of seven years for one count of endangering the welfare of a child, plus five years for another count of endangering the welfare of a child, to be served consecutively. The sentences on the remaining counts were to be served concurrently to those two counts.

We glean the following facts from the trial record. Defendant's wife, Vivian,1maintained a very close relationship with her sister's three minor children: her older niece, Annette; her younger niece, Amanda; and her nephew, Adam. The three children often stayed at the home that Vivian shared with defendant, their uncle by marriage.

At trial, Annette testified to several specific incidents where defendant touched and kissed her breasts, buttocks, and genitalia, both over and under clothing. These incidents began in 2006, when Annette was turning twelve years old, and ended on her fourteenth birthday in 2008. According to Annette, the first incident occurred in the summer of 2006 at defendant's residence while Vivian was not home. Annette testified that while the two were in the pool together, defendant touched her "butt" and her "private area" over her bathing suit. Annette initially thought it was an accident, but when defendant did it a second time, she exited the pool.

Annette recounted another incident when defendant got on top of her to "grind" his private area next to hers. She also stated that defendant used the phrase "just let me grind" when he wanted to rub against her and would ask her to "kiss it" when he wanted oral sex.

Annette also related an incident that occurred when she visited Vivian and defendant, who were temporarily living at a motel during construction at their home. Annette went into the sauna, and defendant followed her inside. He approached her from behind, put his hand around her waist, and "put his private area against [her] butt." Annette's brother Adam testified that he saw defendant touching Annette in the sauna through the glass door. Annette's younger sister Amanda testified that later that day, she disclosed to Annette that defendant had also touched her "private part" while the two were in the jacuzzi at the motel.

Further, Annette testified that several days before her birthday in 2008, a number of her cousins slept over at Vivian's and defendant's home. That night, defendant allegedly "put his mouth" on Annette's "private area" and later put his mouth on her neck and gave her a red mark or hickey.

On July 1, 2008, Vivian held a birthday celebration for Annette. During the celebration, Vivian noticed that Annette had a red mark on her neck. Vivian joked with Annette that the mark was a hickey, and asked who had given it to her. Vivian testified that Annette did not seem concerned and just "laughed about it."

On July 4 and 5, 2008, Annette and Amanda stayed with Vivian while defendant was away on a trip. Annette had a significant disagreement with Vivian that resulted in the family missing the fireworks. The next day, Annette had an altercation with a younger cousin, Jason. Vivian began to scold her, and a heated argument ensued. Vivian told Annette that she was tired of being disrespected and that Annette was no longer welcome in her home.

At this point, Annette said that Vivian was the one who was being disrespected by defendant. When prodded by Vivian as to what Annette meant by this statement, Annette started to cry and revealed that defendant had been touching her inappropriately for the past two years.

Vivian immediately called her sister, Annette's mother, who called the police on her way to Vivian's house. When the police arrived, Sergeant Joseph Bonsall asked Vivian if the allegations were credible. According to Bonsall, Vivian replied that she thought Annette was telling the truth because the phrases Annette had mentioned defendant saying during the alleged abuse were phrases he said to Vivian when he was feeling amorous.

At trial, however, Vivian testified as a witness for the defense. Her testimony suggested that the siblings had fabricated the accusations due to the altercations between her and Annette before the disclosure. Further, her testimony suggested that Annette's hickey had actually come from Jason, with whom Annette had spent a great deal of time alone in an empty bedroom at Vivian's house.

Defendant also testified and maintained his innocence. He stated that none of the allegations against him were true, and that he could not understand what had prompted Annette and Amanda to accuse him of such behavior. He admitted that he had, at times, been alone in the house with the children, but asserted that at the motel, there were other guests at the pool and sauna area each time that he visited it with them. Defendant also acknowledged that he had used the language Annette reported when being intimate with Vivian, but suggested that Annette might have heard those words if she had walked in on him and Vivian being intimate. Defendant presented fifteen character witnesses to attest to his truthfulness and honesty, including relatives, friends, co-workers, and his minister.

On appeal, defendant raises the following contentions for our consideration.

POINT I: THE JUDGE ERRED IN ALLOWING THE PROSECUTOR, OVER OBJECTION, TO INTRODUCE OUT-OF-COURT STATEMENTS AS THOUGH FOR A LIMITED PURPOSE, WITHOUT ENSURING THAT THOSE STATEMENTS WERE USED IN THAT FASHION AND WITHOUT ISSUING A LIMITING INSTRUCTION TO THE JURY ON THE USE OF THAT EVIDENCE.

POINT II: THE QUESTIONS DEFENSE COUNSEL SOUGHT TO ASK AMANDA ABOUT ANNETTE'S BEHAVIOR WITH [JASON] WERE NOT COVERED BY THE RAPE SHIELD ACT AND THE JUDGE ERRED IN NOT ALLOWING THE QUESTIONING.

POINT III: THE PROSECUTOR'S MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (PARTIALLY RAISED BELOW).

II.

Defendant first contends that the trial judge erred in allowing hearsay testimony during his trial. Defendant argues that the prosecutor responded to hearsay objections from defense counsel by "claiming that the statement was offered not for the truth of the matter, but rather for effect on the listener." Defendant contends that the prosecutor did intend that the statements be used to prove truth, and defendant was prejudiced by the jury hearing the statements. We agree that the testimony constituted inadmissible hearsay, but find the admission did not cause prejudice to defendant resulting in the denial of an unfair trial.

We must review a trial court's evidentiary ruling under a deferential standard. State v. J.A.C., 210 N.J. 281, 295 (2012). Such a ruling "should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" Ibid. (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An appellate court applying this standard 'should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting Brown, supra, 170 N.J. at 147).

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Subject to certain exceptions, hearsay is typically inadmissible. N.J.R.E. 802. However, "[w]hen a statement is offered not for the truthfulness of its contents, but only to show that the statement was in fact made and that the listener took certain action as a result, . . . the statement is not inadmissible hearsay." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 801 (2013) (citing Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376-77 (2007); Toto v. Princeton Twp., 404 N.J. Super. 604, 619 (App. Div. 2009); Spragg v. Shore Care, 293 N.J. Super. 33, 56-57 (App. Div. 1996)).

Defendant only complains about the admission of one specific hearsay statement, which the judge allowed the jury to hear based upon the State's contention that the statement was admissible to show its effect on the listener. Defendant points to the prosecutor's questioning of Amanda about what Annette told Amanda concerning how she got the hickey. Defendant's attorney objected to this line of questioning, and the prosecutor contended that she was eliciting this information for its "effect on the listener . . . not for the truth." The judge then permitted the prosecutor to pursue this matter.

According to Amanda, on the same day that she found out that defendant had given Annette a hickey, she disclosed to Vivian that defendant had also touched her inappropriately several weeks before. Therefore, the State argues, Annette's statement to Amanda about her hickey was only offered to show that "it caused Amanda to take other action."

However, when the prosecutor referred to this hearsay statement in her summation, she did not use it as circumstantial proof to explain Amanda's actions. Instead, the prosecutor argued that it should be considered substantively to show the truth of the statement:

[W]ith [Amanda], she testified she noticed the hickey. She arrived on the 4th and that morning on the 5th she noticed the hickey on [Annette's] neck. She said what's that, and [Annette] told her it was from [defendant], and then shortly thereafter, everything happened.

Thus, the prosecutor urged the jury to consider Amanda's testimony about Annette's statement for its truth, to show that defendant was the person responsible for the hickey on Annette's neck. Defendant's attorney did not make an objection to this portion of the prosecutor's summation. Nonetheless, it is readily apparent that the prosecution impermissively used the hearsay statement for its truth, regardless of the limited use originally set forth in the State's proffer.

Even so, Annette's statement that defendant was the source of the hickey on her neck had already been conveyed to the jury during Annette's direct examination. The jury had previously heard the disputed information directly from the declarant, and defendant's attorney had the opportunity to address this topic with Annette during her cross-examination. Therefore, Amanda's testimony as to Annette's statement about the hickey was merely cumulative because Annette herself had already stated under oath that defendant was the person responsible for giving it to her. Under the circumstances, defendant's claim of prejudice from the hearsay is insubstantial, and any error in its admission was manifestly harmless. See State v. Cotto, 182 N.J. 316, 331 (2005) (where police testified about victims' identification improperly as excited utterances, but error was harmless as victims themselves testified of their identification and were subject to cross-examination); State v. Frost, 242 N.J. Super. 601, 618 (App. Div.) (where police improperly testified about victim's statements, but error was harmless as the statements "were identical to the testimony given by [the victim] herself at trial"), certif. denied, 127 N.J. 321 (1990). Similarly, while the prosecutor's reference to Amanda's testimony during her summation may have been an improper argument based on inadmissible hearsay, it does not constitute reversible error, as it was not so egregious as to be "clearly capable of producing an unjust result." R.2:10-2.

Defendant also argues that regardless of the admissibility of the hearsay testimony, the lack of a N.J.R.E. 105 limiting instruction as to the proper consideration of this proof constitutes reversible error. We disagree.

Although a trial judge should give a limiting instruction sua sponte to avert the risk of undue prejudice, when a defendant fails to request such an instruction at trial, we must determine if the failure to give the instruction constitutes plain error. State v. Cofield, 127 N.J. 328, 340-42 (1992). Indeed, a trial judge's failure to provide such an instruction does not necessarily warrant reversal. See State v. Nelson, 318 N.J. Super. 242, 254 (App. Div.) ("When, as here, a limiting instruction should have been given, even though it was not requested, the 'failure to do so is not per se plain error . . . .'" (quoting State v. Allison, 208 N.J. Super. 9, 18 (App. Div.), certif. denied, 102 N.J. 370 (1985))), certif. denied, 158 N.J. 687 (1999); State v. Montesano, 298 N.J. Super. 597, 617-18 (App. Div.) (finding that judge's failure to provide the jury with a sua sponte limiting instruction as to a co-defendant's voluntary written statement "was not clearly capable of producing an unjust result"), certif. denied, 150 N.J. 27 (1997).

Plain error is reversible only if "it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Under that standard, "[r]eversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal quotation marks and citations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004).

In this case, we are not convinced that any potential for prejudice existed because, as we stated previously, Annette had already testified that defendant was responsible for the hickey on her neck. Thus, even if the trial judge ideally should have given a sua sponte limiting instruction, his failure to do so in these particular circumstances does not constitute a reversible error. See Cofield, supra, 127 N.J. at 340-42; Montesano, supra, 298 N.J. Super. at 617-18.

III.

Next, defendant contends that testimony his attorney sought to elicit from Amanda regarding Annette allegedly spending time alone in an unused bedroom at Vivian's house with Jason does not fall under the Rape Shield Law, N.J.S.A. 2C:14-7, and was improperly excluded at trial. We do not agree.

At trial, defense counsel asked Amanda whether she noticed that Annette and Jason "were spending time in the bedroom with a locked door." The prosecutor objected on the basis that testimony alleging prior sexual acts of the victim with another person was not permitted under the Rape Shield Law. Defendant's attorney explained that he was pursuing this line of questioning because, according to defendant, Jason and Annette were secreting themselves in a bedroom and "that's where the hickey came from." The trial judge then declined to permit the line of questioning to continue.

In cases involving sexual assault, the Rape Shield Law serves to presumptively exclude evidence relating to a victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). A defendant seeking to introduce such evidence must apply for a hearing with the trial court to determine if the evidence could be admitted under other provisions of the law. Ibid. The Rape Shield Law allows testimony regarding a victim's prior sexual history with a person other than the defendant only when it relates to proving that another individual is the source of certain physical evidence, or when the evidence could negate the element of force. N.J.S.A. 2C:14-7(c), (d); State v. Budis, 125 N.J. 519, 530 (1991). The purpose of the law is to "'protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant.'" State v. Schnabel, 196 N.J. 116, 128 (2008) (quoting State v. Garron, 177 N.J. 147, 165 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)).

We reject defendant's contention that his trial counsel's line of questioning concerning a third person who might be responsible for Annette's hickey is not covered by the Rape Shield Law. For purposes of the statute, "sexual conduct" is defined as "any conduct or behavior relating to sexual activities of the victim, including but not limited to [a] previous or subsequent experience of sexual penetration or sexual contact[.]" N.J.S.A. 2C:14-7(f). Defendant's attorney sought to show that Annette and Jason had spent time alone in a bedroom, and that he was responsible for giving her a hickey in the course of a physical interaction. The allegation implies that Jason and Annette had engaged in sexual contact under N.J.S.A. 2C:14-7(f). The testimony was not was not offered into evidence for the purpose of "proving the source of semen, pregnancy or disease." N.J.S.A. 2C:14-7(c).

In order to protect a defendant's right to a fair trial, "'evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact.'" Schnabel, supra, 196 N.J. at 130 (quoting Garron, supra, 177 N.J. at 172). In determining the admissibility of evidence of prior sexual conduct, a court must first determine whether the evidence was relevant to the defense. Budis, supra, 125 N.J. at 532. If relevant, the court must then decide whether the probative value outweighs the prejudicial effect to the victim. Ibid. "The probative value of the prior acts depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense." Id. at 533.

In this case, defendant did not provide "clear proof" that Annette had sexual contact with her young cousin and received the hickey from him rather than defendant. Eliciting testimony that Annette had been alone in a bedroom with another male and that male may have given her a hickey, is not sufficient, on its own, to satisfy the first prong of this test. See State v. P.S., 202 N.J. 232, 261-62 (2010) (ruling that proffered evidence to establish that plaintiff had previous sexual contact, consisting of a single notation in a medical report that lacked specific details, was "simply too thin" to "satisfy the requirement that there be 'clear proof' that the prior acts occurred." (citing Budis, supra, 125 N.J. at 532-33)); see also State v. J.D., 211 N.J. 344, 359 (2012).

Consequently, the trial judge's decision to exclude the proposed testimony did not amount to an abuse of discretion. In these circumstances, the judge did not misapply the Rape Shield Law. Rather, his refusal to permit this line of questioning based upon mere supposition was entirely correct. See P.S., supra, 202 N.J. at 261-62. In any event, defense counsel was able to elicit the desired information regarding Annette and Jason spending time together during Vivian's direct examination. Thus, any alleged error was clearly harmless.

IV.

Last, defendant alleges that several components of the prosecutor's closing argument were grossly prejudicial and amounted to prosecutorial misconduct that rendered the trial essentially unfair. Viewing the prosecutor's remarks in the context of her entire summation, we are not persuaded.

First, defendant contends that the prosecutor impermissibly testified to the jury when she stated that Annette and Amanda would have told a "better lie" if they were fabricating defendant's acts of sexual assault. Defendant argues that this argument was "improper because it proceeds on the basis of facts not in evidence; the witnesses' ability and motivation to lie." In addition, defendant argues that the prosecutor impermissibly testified to the jury when she suggested during summation that the phrase "let me grind on you" was not a common phrase with which a fourteen-year-old girl would otherwise be familiar.

The State points out that Annette's and Amanda's ability to lie was indeed addressed during the trial. During the defense counsel's cross-examination, he elicited testimony from them that they were capable of lying, and had done so on past occasions, and he addressed these admissions in his summation.

Defendant also objects to the prosecutor's use of language such as the "defense attorney would have you believe," contending that it implies that the defense was fabricated. Again, the State counters that defendant's attorney used similar language in his own summation.

Next, defendant contends that the prosecutor's discussion of his character witnesses was intended to undermine their value. In particular, he argues that it was improper for the prosecutor to state that "[t]here's no typical portrait of a man who would sexually abuse children," when there was no evidence presented at trial to support this statement. The State argues that the prosecutor was making fair comment on the evidence. Significantly, defendant did not object to any of these abovementioned alleged acts of misconduct during the prosecutor's summation itself.

Defendant also contends he was prejudiced by one statement that counsel did object to during the prosecutor's summation. The prosecutor stated that "the defense attorney would have you believe that [Vivian] never saw or heard [her sworn] statement. Make no bones about it. She did. They have copies of those statements." This comment was in response to defense counsel's assertion during his summation that Vivian had not seen her statement before the trial and walked in "cold," as opposed to Annette and Amanda, who admitted being prepared by the State before trial. Defendant's attorney objected, stating that the prosecutor was "far outside of the record" and lacked "proof of anything she's telling them." The trial judge instructed the prosecutor not to refer to anything the defense attorney may have done to prepare for trial.

Here, defendant contends that the trial judge did not address this issue properly because he merely reminded the jurors that their recollections of the evidence controlled. Specifically, the trial judge stated during his jury charge:

You'll recall that the attorneys made objections to each other's closing arguments regarding the other's recollection of the evidence . . . . Irrespective of my recollection or the attorneys' recollection, to the extent that either side has mischaracterized or incorrectly recalled the evidence or I misrecalled the evidence, that's a matter for you to decide. What the lawyers say in their arguments is not evidence and should not be treated as such by you. You must rely solely on your collective recollection about these issues and any other aspects of the evidence. To the extent the lawyers' comments are in conflict with your recollection, you must completely disregard it.2

Prosecutors are afforded wide latitude in presenting summations. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Yet, a prosecutor is obligated "not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Further, it is as much the prosecutor's "'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) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).

The prosecutor must ensure the comments in summation "are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Prosecutors should not make inaccurate legal or factual assertions and must confine their comments "to evidence revealed during trial, and reasonable inferences to be drawn" therefrom. State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003) (citing State v. Smith, 167 N.J. 158, 178 (2001)), certif. denied, 180 N.J. 150 (2004). However, "a prosecutor may nonetheless make 'a vigorous and forceful presentation of the State's case.'" State v. Zola, 112 N.J. 384, 426 (1988) (quoting State v. Bucanis, 26 N.J. 45, 57, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).

In evaluating whether prosecutorial misconduct requires reversal, we must determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing Ramseur, supra, 106 N.J. at 322; State v. Siciliano, 21 N.J. 259, 282 (1956)). Usually, if no objection is made during summation, then the remarks will not be considered prejudicial. Ramseur, supra, 106 N.J. at 323; State v. Ingram, 196 N.J. 23, 42 (2008). However, in particularly egregious circumstances, the prosecutor's comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J. Super. 85, 89-92 (App. Div. 1994). Improper comments by a prosecutor require reversal "when they 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).

Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see also State v. Loftin, 146 N.J. 295, 390 (1996) (accepting the presumption that juries follow a court's instructions). An instruction to jurors "that statements by counsel are not evidence" is sufficient to keep a prosecutor's "clearly improper" statement from necessitating reversal of the trial court's verdict. State v. Setzer, 268 N.J. Super.553, 566 (App. Div. 1993), certif. denied, 135 N.J.468 (1994). Here, the judge appropriately provided this instruction to the jury.

We are satisfied that none of the challenged comments, alone or together, deprived defendant of a fair trial. Most of the remarks were not objected to during the summation, suggesting that when these remarks were made, defense counsel did not view them as prejudicial to his client. See Ramseur, supra, 106 N.J. at 323. The one troubling comment, concerning whether Vivian had read her statement before testifying, might have been inappropriate, but the judge sustained the objection and the jury received the proper instruction. In the context of the prosecutor's entire summation, this one flawed argument realistically could not have been enough to prejudice the jury. Moreover, any prejudice that arose was cured by the trial court's clear instructions to the jury that the attorneys' remarks made in summation were not to be considered as evidence. See Smith, supra, 212 N.J. at 409.

We have considered the contentions raised in defendant's pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 We refer to the victims and other family members by pseudonyms to protect their privacy.

2 This instruction closely tracks the current Model Jury Charge (Criminal), "Function of the Jury" (Rev. Jan. 14, 2013).