STATE OF NEW JERSEY v. RASHEED BROWN

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-4209-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RASHEED BROWN,

     Defendant-Appellant.
______________________________

              Submitted January 17, 2018 – Decided May 15, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 15-
              06-1363.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).


PER CURIAM

        Defendant    Rasheed    Brown    appeals    his   convictions     for      the

lesser-included offense of third-degree aggravated assault with a
deadly weapon, 
N.J.S.A. 2C:12-1(b)(2), third-degree possession of

a weapon with the intent to use unlawfully, 
N.J.S.A. 2C:39-4(d),

and fourth-degree unlawful possession of a weapon, 
N.J.S.A. 2C:39-

5(d), as well as his four-year prison term.

     Before us, defendant argues:

          POINT I

          THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
          AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
          THE UNITED STATES CONSTITUTION AND ART. I,
          PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
          VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY
          PREJUDICIAL   AND   CUMULATIVE   OTHER-CRIME
          EVIDENCE.

          POINT II

          THE LIMITING OTHER-CRIME EVIDENCE INSTRUCTION
          WAS INCOMPLETE, DEFECTIVE, AND PREJUDICIAL.
          (Not Raised Below).

          POINT III

          THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
          AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
          THE UNITED STATES CONSTITUTION AND ART. I,
          PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
          VIOLATED BY PROSECUTORIAL MISCONDUCT.   (Not
          Raised Below).

          POINT IV

          THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
          AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
          THE UNITED STATES CONSTITUTION AND ART. I,
          PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
          VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY
          SUGGESTIVE INDENTIFICATION EVIDENCE.



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          A. THE IDENTIFICATION EVIDENCE WAS UNDULY
          SUGGESTIVE AND INSUFFICIENTLY RELIABLE.

          B. THE POLICE FAILED TO PRESERVE PHOTOS FROM
          THE OUT-OF-COURT IDENTIFICATION PROCEDURE.

          POINT V

          THE SENTENCE IS EXCESSIVE: THE TRIAL COURT
          IMPROPERLY BALANCED THE AGGRAVATING AND
          MITIGATING FACTORS.

For the reasons that follow, we affirm.

                                 I

     We discern the following facts from the record.   The conflict

in question allegedly emanated in 2009, when defendant had sub-

let his room – without the authority to do so – at a Newark hotel

serving as a homeless shelter to Jeffrey Taylor.       According to

Taylor, defendant repeatedly assaulted him upon seeing him wearing

a pair of defendant's jeans that were left in the room.      Taylor

claims that the police were contacted but no charges were ever

made against defendant.   Understandably, Taylor no longer stayed

in the room.

     About three years later, Taylor came across defendant outside

an Irvington bar.   An argument ensued before Taylor went into the

bar after seeing defendant pull out a knife.    After having some

drinks, Taylor left the bar with two friends, and defendant again

confronted Taylor brandishing a knife. When Taylor and his friends

got into their car, Taylor gestured to defendant who started

                                 3                          A-4209-15T2
banging on the closed front passenger's side window where Taylor

was seated.    The driver then inexplicably lowered the automatic

window, which allowed defendant to reach inside the car and hold

the knife to Taylor's throat.        Taylor moved back, but defendant

was able to point the knife towards him again.            Taylor grabbed

defendant's arm, but defendant escaped his grasp and slashed his

thigh, stomach, and right thumb with the knife.          The driver then

sped away, not realizing until he pulled over about two blocks

later that Taylor was injured.

     An ambulance took Taylor to the hospital where he informed

the police that his assailant was a former roommate whose name he

could not recall.       After he was treated, Taylor went to the police

station    where   he   gave   detective   Mitchell   Molina   a   physical

description of his assailant that was put into a computer program

to generate photographs of men who fit the description.             Taylor,

however, was unable to identify his assailant from the photos,

which were not saved.

     Ten days later, Taylor informed Molina he believed the man

who stabbed him was named Lamont.        He further believed that Lamont

lived in East Orange and had a girlfriend named Maya.                Taylor

later advised Molina that he thought his assailant's last name was

Johnson.    Consequently, he went back to the police station where

Molina showed him four photographs of men named Lamont Johnson.

                                     4                              A-4209-15T2
However,   he    could   not   identify    his   assailant   in   any    of   the

photographs.

       Further investigation by Molina resulted in a tip that Maya

lived with a man in a basement apartment located next to the bar

where the incident occurred.        When Molina questioned Maya at her

apartment, she stated that her boyfriend's name was Randy Williams

not Lamont Johnson.        After no such person could be identified,

Molina discovered that Maya lived with a man named Rasheed Brown.

Molina obtained Brown's license photo, and believing he matched

Taylor's description of his assailant, showed it to Taylor who

confirmed that it depicted his assailant.             Molina then revealed

Brown's name to Taylor.

       On the eve of trial, the judge conducted a Rule 104 hearing

after which she determined that testimony concerning Taylor's

photo identification of defendant and a limited account of the

2009   assault    were   admissible.       After    considering    the     trial

testimony of Taylor, Taylor's friend who drove the night of the

incident, Molina, and the initial investigating police officer –

defendant exercised his right not to testify – the jury found

defendant guilty of the lesser-included offense of third-degree

aggravated assault with a deadly weapon, third-degree possession

of a weapon with the intent to use unlawfully, and fourth-degree



                                       5                                 A-4209-15T2
unlawful possession of a weapon.              At sentencing, after merger,

defendant was sentenced to a five-year prison term.

                                       II

      Initially, we address defendant's argument in Point I that

the   State   was    improperly   allowed       to    introduce   the    highly

prejudicial evidence of other-crimes – the 2009 assault. He argues

that since defendant was not charged for the alleged assault, the

State failed to satisfy N.J.R.E. 404(b) by proving with clear and

convincing evidence that the assault occurred.

      We disagree.     We review the trial judge's decision to admit

evidence, including evidence subject to N.J.R.E. 404(b), for abuse

of discretion.      See State v. Willis, 
225 N.J. 85, 96 (2016); State

v. J.M., 
225 N.J. 146, 157 (2016).            N.J.R.E. 404(b) provides that

evidence of other crimes or bad acts is generally not admissible,

unless   used    for     "proof   of        motive,   opportunity,      intent,

preparation, plan, knowledge, identity or absence of mistake or

accident when such matters are relevant to a material issue in

dispute."     In State v. Cofield, our Supreme Court set forth a

four-pronged test to govern the admission of such evidence:

            1. The evidence of the other crime must be
            admissible as relevant to a material issue;

            2. It must be similar in kind and reasonably
            close in time to the offense charged;



                                       6                                A-4209-15T2
          3. The evidence of the other crime must be
          clear and convincing; and

          4. The probative value of the evidence must
          not be outweighed by its apparent prejudice.

          [State v. Cofield, 
127 N.J. 328, 338 (1992)
          (citation   omitted);  see   also   State   v.
          Carlucci,   
217 N.J.  129,   140-41   (2014)
          (reaffirming the Cofield test).]

          Further, even if relevant under N.J.R.E.
          404(b), such evidence must nevertheless
          survive   the   crucible   for  all   relevant
          evidence: "relevant evidence may be excluded
          if its probative value is substantially
          outweighed by the risk of (a) undue prejudice,
          confusion of issues, or misleading the jury
          or (b) undue delay, waste of time, or needless
          presentation of cumulative evidence."

          [State v. Lykes, 
192 N.J. 519, 534-35 (2007)
          (quoting N.J.R.E. 403).]


The Court has also explained that Cofield's prong two "need not

receive universal application in [N.J.R.E.] 404(b) disputes," and

therefore need not apply where it is not relevant.         State v.

Williams, 
190 N.J. 114, 131 (2007).

     Once N.J.R.E. 404(b) evidence is found to be admissible, "the

court must instruct the jury on the limited use of the evidence."

Cofield, 
127 N.J. at 340-41.   "[T]he court's instruction 'should

be formulated carefully 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


                                7                           A-4209-15T2
and appreciate the fine distinction to which it is required to

adhere.'" Id. at 341 (quoting State v. Stevens, 
115 N.J. 289, 304

(1989)).

     Here, after hearing Taylor's testimony during a N.J.R.E. 104

hearing, the court determined that he was credible and there was

clear and convincing evidence that the 2009 assault occurred, and

allowed    it   to   show   defendant's   "motive    and   perspective"   for

attacking Taylor and how Taylor identified him as his assailant.

The judge found this evidence probative and not prejudicial.                We

agree; there was no abuse of discretion in the admission of

Taylor's testimony that defendant assaulted him three years prior

to the altercation that was being tried.            The fact that defendant

was not charged in that initial assault is of no import, and even

if he was, he could still challenge the admissibility of that

assault.    And, as we discuss next, the judge properly instructed

the jury on the purpose for which the testimony was admitted and

how it could evaluate the testimony.

     Related to his Point I argument, defendant contends in Point

II for the first time on appeal that the judge failed to charge

the jury that they should disregard the evidence of other crimes,

wrongs or acts if not clearly convinced that they occurred.                 He

further argues the judge failed to charge the jury that it should

not infer that defendant had a propensity to commit crimes or

                                      8                              A-4209-15T2
infer that he had a bad character because he committed "fraud" by

illegally subletting a room to Taylor.   Because defendant did not

object to the charge, we do not "consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available unless the questions so raised on

appeal go to the jurisdiction of the trial court or concern matters

of great public interest."     State v. Robinson, 
200 N.J. 1, 20

(2009) (quoting Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234

(1973)).   In addition, unraised issues that are of constitutional

magnitude or constitute plain error under Rule 1:7-5 – where a

trial error is "of such a nature as to have been clearly capable

of producing an unjust result" – can be heard on appeal.     Id. at

20; State v. Galicia, 
210 N.J. 364, 383 (2012).

     Under these parameters, we decline to consider defendant's

contention that the jury charge was erroneous.     Defendant fails

to articulate a jurisdictional issue, a matter of great public

interest, a constitutional violation, or plain error.   As for the

last, the charges did not produce an unjust result. In considering

the 2009 assault, the jury was provided the Model Jury Charge

(Criminal) "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E.

404(b))" (2007), detailing how it should determine if the 2009

assault occurred.   In pertinent part, the charge provides: "Before

you can give any weight to this evidence, you must be satisfied

                                 9                          A-4209-15T2
that the defendant committed the other [crime, wrong, or act].              If

you are not so satisfied, you may not consider it for any purpose."

Ibid.   Defendant conflates the clear and convincing standard the

judge must apply under Cofield to decide whether the other crimes

evidence is admissible with the model jury charge standard the

jury must apply to determine if it should accept the testimony of

other crimes or bad acts.          See State v. Wilson, 
158 N.J. Super.
 1, 10 (App. Div. 1978) (recognizing the jury decides whether to

accept the testimony of the uncharged offense).

     Moreover,    as   for   the   defendant's   contention   that    Taylor

claimed he committed "fraud," we do not see it.        It is unclear how

Taylor's accusation constitutes fraud.            Neither defendant nor

Taylor cited a criminal statute that was violated by the sublet

arrangement.     The agreement was admitted merely to explain their

prior relationship, which led to           the initial assault.          Even

conceding that the jury should not have been advised the sublet

arrangement was illegal or wrong, the testimony was harmless as

the clear focus of their 2009 relationship was the alleged assault,

and we cannot envision the arrangement established "defendant's

alleged bad character with a propensity to commit crimes" as

defendant argues.




                                     10                              A-4209-15T2
      In Point III, defendant contends the prosecutor improperly

injected his personal opinion in his summation, stating: "In my

opening, I told you [this case] was about identification.                Well,

I was wrong.        I heard the evidence and this weekend I thought

about it using common sense.”        We disagree.

      To warrant a new trial, a prosecutor's conduct must have been

"'clearly and unmistakably improper' and must have substantially

prejudiced defendant's fundamental right to have a jury fairly

evaluate the merits of his defense."           State v. Smith, 
167 N.J.
 158, 181-82 (2001) (quoting State v. Timmendequas, 
161 N.J. 515,

575 (1999)).    In determining whether a prosecutor's actions were

sufficiently egregious we consider: (1) whether defense counsel

made a timely and proper objection; (2) whether the remarks were

promptly withdrawn; and (3) whether the judge struck the remarks

from the record and issued a curative instruction.               Id. at 182.

In   our   review   we   "consider   the   tenor   of   the   trial   and   the

responsiveness of counsel and the court to the improprieties when

they occurred."      Timmendequas, 
161 N.J. at 575.

      If no objection was made, the prosecutor's conduct generally

will not be deemed prejudicial, as the failure to object indicates

counsel did not consider the conduct improper and deprives the

trial judge of the opportunity to take curative action.               State v.

Echols, 
199 N.J. 344, 360 (2009).          Absent an objection, defendant

                                     11                                A-4209-15T2
must establish the conduct constitutes plain error.               State v.

Feal, 
194 N.J. 293, 312 (2008).

     We find insufficient merit in defendant's argument to warrant

discussion here. R. 2:11-3(e)(2). We add only that the prosecutor

is allowed to draw legitimate inferences from the facts presented

at trial, namely that he used his common sense to think about the

evidence.    The prosecutor did not allude to his opinion as being

the correct choice that the jury should abide by, and did not

prejudice defendant's right to have the jury objectively weigh the

evidence so as to require reversal.         See State v. Land, 
435 N.J.

Super. 249, 269 (App. Div. 2014).

     Turning to Point IV, defendant argues that Taylor's out-of-

court identification of defendant from a single photo shown by

Molina was unnecessarily suggestive and should not have been

admitted.    Defendant further emphasizes the unreliability of the

identification process by pointing out that Taylor told police his

assailant's name was Lamont Johnson, and not defendant.        Moreover,

he maintains the detective's failure to preserve the photos of men

named Lamont Johnson did not comply with State v. Adams, 
194 N.J.
 186, 202-03 (2008), and State v. Earle, 
60 N.J. 550, 552 (1972),

and therefore warrants a new trial.         Again, we disagree.

     We     accord   a   trial    judge's     findings   regarding      the

impermissible    suggestiveness    of   the   identification   procedure

                                   12                              A-4209-15T2
"considerable weight."        Adams, 
194 N.J. at 203 (quoting State v.

Farrow, 
61 N.J. 434, 451 (1972)).           "[A] defendant has the initial

burden    of    showing    some    evidence    of     suggestiveness"       in   the

identification      proceeding      "that     could     lead   to    a     mistaken

identification."       State v. Henderson, 
208 N.J. 208, 288 (2011)

(citations omitted).         "The findings of the trial judge as to

reliability of the witnesses are [also] entitled to considerable

weight."       State v. Wilson, 
362 N.J. Super. 319, 327 (App. Div.

2003).     The identification may be admitted into evidence as long

as "there is sufficient credible evidence in the record to support

the findings."      Adams, 
194 N.J. at 203.

     In our view, we agree with the judge's finding that Taylor's

identification of defendant through a single photo shown to him

by Molina was not impermissibly suggestive. There is no indication

that the manner in which Molina conducted the identification

process        suggested    that      defendant        was     the       assailant.

Significantly, before being shown the photo, Taylor knew defendant

from their sublet agreement and the assault in 2009.                     And Taylor

had ample opportunity to see defendant before he entered the bar

and after he left the bar prior to the assault in question.

Moreover, between those two assaults, Taylor testified that he had

seen defendant on three occasions and avoided contact with him.



                                       13                                   A-4209-15T2
Simply put, defendant was not a stranger to Taylor before he

reached into the car and slashed Taylor with a knife.

       The   fact   that    Taylor      had   mistaken        defendant's    name    is

insignificant in determining whether the photo identification was

admissible; it is the circumstances surrounding his identification

of defendant's photo that is important.                     Although we agree with

defendant that the photos of "Lamont Johnson" should have been

preserved,      under     the    totality         of    the   circumstances,      this

shortcoming     does     not    undermine         the   reliability     of   Taylor's

identification.

       Finally, in Point V, defendant maintains the record supports

a three-year sentence – not the four-years given – because there

was no basis for the judge to apply aggravating factor numbers

three and nine.         
N.J.S.A. 2C:44-1(a)(3)(the risk of re-offense);

-1(a)(9) (the need to deter).            He also suggests mitigating factor

five should have been considered because it was Taylor's taunts

that caused defendant to attack him with the knife.                          
N.J.S.A.

2C:44-1(b)(5) (victim induced defendant's conduct).

       Review of a criminal sentence is limited; a reviewing court

must   decide    "whether       there   is    a    'clear     showing   of   abuse   of

discretion.'"       State v. Bolvito, 
217 N.J. 221, 228 (2014) (quoting

State v. Whitaker, 
79 N.J. 503, 512 (1979)).                   Under this standard,

a criminal sentence must be affirmed unless "(1) the sentencing

                                         14                                   A-4209-15T2
guidelines were violated; (2) the findings of aggravating and

mitigating   factors   were   not   'based   upon   competent   credible

evidence in the record;' or (3) 'the application of the guidelines

to the facts' of the case 'shock[s] the judicial conscience.'"

Ibid. (alteration in original) (quoting State v. Roth, 
95 N.J.
 334, 364-65 (1984)).    If a sentencing court properly identifies

and balances the factors and their existence is supported by

sufficient credible evidence in the record, this court will affirm

the sentence.    See State v. Carey, 
168 N.J. 413, 426-27 (2001);

State v. Megargel, 
143 N.J. 484, 493-94 (1996).

     Here, we are unpersuaded that the judge erred in sentencing

defendant. We find support in the record for the judge's findings,

and the sentence does not shock our judicial conscience.

     Affirmed.




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