STATE OF NEW JERSEY v. ANTHONY FIELD

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0432-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY FIELD, a/k/a
ANTHONY LEE HOWARD
FIELD, and ANTHONY
HOWARD FIELDS,

     Defendant-Appellant.
______________________________

                    Submitted November 18, 2019 – Decided August 13, 2020

                    Before Judges Messano, Vernoia, and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 14-09-2290.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Marcia H. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Lucille M.
                    Rosano, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Anthony Field appeals from his conviction and aggregate

ninety-nine-year sentence for a 2013 Christmas morning shooting that left three

victims dead and two others injured. Based on our review of the record, we

reject defendant's claims the court erred in its jury instruction on flight, by

admitting testimony from a police detective, and in imposing sentence, and we

affirm.

                                       I.

      Just past midnight on the morning of December 25, 2013, Woodley Daniel

stood in the vestibule entryway of Slick's GoGo Bar (Slick's) in Irvington.

Daniel worked security at the bar's front door and collected cover charges from

its patrons. He became involved in a physical altercation with a prospective

customer, later identified as Muhammad Bogar, that spilled out onto the street.

Multiple gunshots were fired by a single perpetrator, leaving Daniel and two

others dead and injuring two of the bar's patrons. During the ensuing police

investigation, multiple witnesses identified defendant as the shooter.

      A grand jury indicted defendant for three counts of first-degree purposeful

or knowing murder,  N.J.S.A. 2C:11-3(a)(1) (counts one, two and three); two

counts of first-degree kidnapping,  N.J.S.A. 2C:13-1(a) (counts five and six); two

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counts of second-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1) (counts

seven and eight); first-degree carjacking,  N.J.S.A. 2C:15-2(a)(1) (count four);

fourth-degree aggravated assault by pointing a firearm,  N.J.S.A. 2C:12-1(b)(4)

(count nine); second-degree unlawful possession of a handgun,  N.J.S.A. 2C:39-

5(b) (count ten); and second-degree unlawful possession of a handgun for an

unlawful purpose, N.J.S.A. 2C 39-4(a) (count eleven). 1

        The trial evidence showed Pierre Clervoyant, Sr. (Clervoyant, Sr.) was

one of Slick's owners. On December 24, 2013, Clervoyant, Sr., his son, Pierre

Clervoyant, Jr. (Pierre), and Camille Hedge tended bar while Daniel worked at

the bar's front door.2 The door opened to a vestibule, which had a second door

that opened into the bar. Once in the vestibule, patrons walked through a metal

detector and were patted down by Daniel. There were surveillance cameras

inside and outside the bar, which worked and recorded on December 24 and 25,

2013.



1
  Prior to trial, the court granted the State's motion to amend count four to charge
a violation of  N.J.S.A. 2C:15-2(a)(2), and counts five and six to charge
violations of  N.J.S.A. 2C:13-1(b)(1).
2
  Because Pierre Clervoyant, Sr. and Pierre Clervoyant, Jr. share a surname, we
refer to Pierre Clervoyant, Jr. as Pierre for clarity and to avoid confusion. We
intend no disrespect by this informality.


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      Late in the evening on December 24, 2013, defendant entered the bar with

Imani Sapini and a man Sapini knew as NuNu. Sapini was a friend of defendant,

who Sapini knew by the name Bullet. 3 Sapini was scheduled to perform as a

singer at the bar. After spending some time in the bar, she exited through the

front door to smoke, heard gunshots, and ran. At trial, Sapini testified she did

not see defendant with a gun that evening and did not see the shooter. When

asked whether she tried to "take a look at the shooter, to see who might

be . . . pulling the trigger," she responded "No, . . . I didn't. I just ran." She

testified that, on the night of the incident, defendant wore a hat and a jacket with

a gray stripe on the shoulder.

      Following a Gross4 hearing, portions of a December 31, 2013 statement

Sapini gave to the police were played for the jury. In the statement, Sapini said

that after the shooting, she saw defendant run toward Bogar's car with a small



3
   The parties stipulated defendant's high school football coach gave him this
nickname because of his quickness, and the judge read the stipulation to the jury,
informing them they "should not draw any conclusion or inferences from this
nickname."
4
   A Gross hearing is a N.J.R.E. "104 hearing . . . the trial court conducts to
determine the admissibility of a witness's inconsistent out-of-court statement --
offered by the party calling that witness -- by assessing whether the statement is
reliable. See State v. Gross,  121 N.J. 1, 10 (1990)." State v. Greene, ___ N.J.
___, ___ n.2 (2020) (slip op. at 10).
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black gun, possibly a nine-millimeter handgun, in his hand. According to her

statement, after the shooting she and Bogar entered Bogar's car first, and Bogar

told defendant he could not get in the car "[b]ecause of what just happened."

Sapini explained that defendant nevertheless entered the back seat of the car,

"and that's when he put [the gun] to [Bogar's] head, and told [Bogar] that he had

to take [defendant] and drop him off."

      Bogar knew defendant and Sapini prior to the incident. He testified that

he and two friends, Mu Trills 5 and Mushir Cureton, went to the bar to see Sapini

perform. Bogar drove Trills and Cureton to the bar and parked his car around

the corner. A surveillance video recording shows Bogar and his friends arriving

at the bar at 12:26 a.m.

      Bogar testified Sapini told him he would not have to pay the cover charge

to enter the bar because Sapini was performing. According to Bogar, when he

and his two friends arrived at the bar, Trills entered first, went through the metal

detector, was patted down, and was admitted without paying the cover charge.




5
  The police were unable to locate the individual identified as Mu Trills during
their investigation. No one identifying themselves as Mu Trills testified at trial.



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Daniel then patted Bogar down and told him he had to pay the cover charge. 6

Bogar argued with Daniel about the payment, and Bogar testified Daniel then

"start[ed] pushing [him], tussling, [and they] started tussling inside the hallway. "

      Bogar explained that during the altercation, Daniel grabbed Bogar by his

hair, and he and Bogar hit each other. Bogar was pushed out the front door onto

the street, where he pulled away from Daniel and heard shots fired. Bogar saw

defendant shooting a black gun, and Bogar ran to his car.

      Bogar explained that after arriving at his car, he started the engine and

Sapini appeared, entered the car, and sat in the front passenger seat. Defendant

appeared next, opened the rear door, and got in the car, but Bogar told defendant

he would not take him anywhere because defendant "just shot them people."

Defendant pointed a gun at Bogar, started cursing at him and told him to "drive."

Bogar drove away, dropped defendant off at another location, and then dropped

off Sapini. Bogar testified he did not have any weapons with him that evening.




6
  Bogar referred to the individual who required he pay the cover charge and
with whom he had the physical altercation as the "bouncer." It is undisputed the
individual was Daniel.


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                                         6
      Three days later, Bogar gave a statement to the Essex County Prosecutor's

Office.   Bogar was shown two photo arrays, and he identified defendant's

photograph in the second array as the individual who was the shooter.

      At trial, Bogar acknowledged that, at the time of the shooting, he was a

member of a street gang, but he denied knowing whether Sapini was also a

member. He also denied speaking with Sapini during the three years following

the shooting and prior to trial. He denied having had any contact with Trills

following the incident, but he admitted he told the police Trills said he did not

want to be involved with the investigation.

      Ravin Neal, a dancer at Slick's, also testified at trial, explaining she was

about to go outside to smoke when she saw Daniel frisk a man at the front door

and argue with him because the man did not want to leave his weapon outside.

Neal saw Daniel "tussling" with the man and his friend, who Neal identified as

one of the decedents. Neal also saw Pierre jump over the bar and join in the

scuffle, which moved out of the vestibule and onto the street. As Neal stood in

the doorway, she saw a young man in the middle of the street come toward

towards the bar door, "and [he] started shooting."

      Neal testified the shooter was alone, had a gun in his hand, and was in the

middle of the street walking toward the bar while shooting. According to Neal,


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prior to the shooting, the man was in a car parked near the bar. Neal testified

that after he got out of the car, the man went to the middle of the street and shot

Daniel, Pierre, and a third man. Neal further testified she stood there for a "good

minute," looked at the shooter's face, and was certain the shooter was not the

person with whom Daniel tussled at the door.

         On December 25, 2015, Neal gave a statement to the police, explaining

the shooter wore a hat and she would be able to identify him again. Two weeks

later, Neal selected defendant's photograph from an array "as being the shooter

who was outside [the bar]."        Neal did not want to sign her name on the

photograph when she made the identification, but the photo array identification

procedure was played for the jury. Neal identified defendant as the shooter at

trial.

         Guenson Adolphe, Pierre's friend and a regular patron of the bar, arrived

at about 8:00 p.m. He left the bar, and, when he later returned, he saw Daniel

fighting with a man near the bar's front door. Adolphe believed the argument

started because the man did not want to be patted down. Adolphe testified the

man fighting with Daniel was slim and had dreadlocks.

         Adolphe saw Daniel grab the man and attempt to escort him out the door,

and the two men tussled inside the vestibule and swung at each other. Adolphe


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saw Pierre jump over the bar to try to break up the fight, and Adolphe also

attempted to break up the fight. The fight spilled onto the street, and Adolphe

"followed everyone outside the bar as well."

      Adolphe testified that once outside, "he saw an individual, [and] the barrel

of the gun pointing at [him]." He heard the shooter say "I'm going to kill all

y'all." Adolphe put his hands up and was shot in the forearm. He landed on the

ground facing the bar with his back to the street, and he "played dead." He heard

several more gunshots and was shot in his left foot. After the shooting ended

and "people started coming out" of the bar, Adolphe stood up and a friend drove

him to the hospital. The police first interviewed Adolphe on December 26,

2013, after his admission to the hospital. He told the police that he believed a

friend of the man who fought with Daniel was the shooter, and that the shooter

also had dreadlocks. On January 15, 2014, Adolphe was questioned a second

time, and he said the shooter was 5'6" or 5'7" tall, with light brown skin, a

"Sunni-style" beard, and dark clothing. Adolphe was shown two photo arrays,

and he selected defendant's photograph and identified defendant as the shooter.

Adolphe also identified defendant as the shooter at trial.

      Richard Duvivier was also at the bar when the shooting occurred. He

testified that at around 12:30 a.m., he saw an altercation between Daniel and a


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man at the front door, and he saw Pierre jump over the bar and head toward the

door. Duvivier followed Pierre to the door, where he saw Daniel on top of a

man, trying to restrain him. Duvivier heard multiple gunshots and saw the

shooter fire at Daniel. Duvivier was shot in the ankle and the arm.

      On the day following the incident, Duvivier gave a statement to the police

in which he described the shooter as being 5'6" or 5'7" tall, light-brown skin,

with a "Sunni-style" beard, short hair, dark clothing, a burgundy shirt, and

possibly a skully or hat. Duvivier said the gunman shot Daniel first and he

assumed the shooter had arrived at the bar with the man who was involved in

the altercation with Daniel. Two days after his initial statement, Duvivier

identified defendant in a photo array as the shooter.

      Khaalia Mumford lived with defendant in December 2013 and is the

mother of his children. She testified that on the night of the incident, defendant

wore a black sweater with a gray stripe down the sleeve and black khaki pants

with big pockets.     At trial, Mumford identified defendant on the bar's

surveillance recordings at different times during the incident and identified

defendant in still photographs from the surveillance recordings.

      Mumford also testified defendant arrived at their home in the early

morning on December 25, 2013 and told her, "[he] may be in trouble." He then


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left and returned around noon with gifts for their children. Defendant left shortly

after the children opened their gifts, and Mumford had not heard from him since

that day. She later learned defendant went to Florida, but she was unaware he

had plans to travel there.

      After the shooting, Daniel and Cureton were found unresponsive and were

pronounced dead at the scene. Cureton suffered six gunshot wounds, including

wounds to the face, chest, back, right arm, and right hand. Daniel suffered three

gunshot wounds—to his head, right forearm, and right hip. Daniel and Cureton

shared the same cause of death: multiple gunshot wounds.

      Pierre was in and out of consciousness when the police arrived and was

later pronounced dead at the hospital. It was determined his cause of death was

three gunshot wounds to his lower back and buttocks.

      Duvivier suffered two gunshot wounds, was in the hospital for three days,

and continued to see a doctor as an outpatient for one-and-a-half years. As a

result of his injuries, Duvivier has difficulty walking, and, at the time of trial,

he could not rotate his arm.

      Adolphe was in the hospital for three days as a result of the gunshot

wounds to his right arm, right hand, and left foot. He had surgery o n his foot

about three to four months after the incident and used crutches for six months


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                                       11
thereafter. As a result of his injuries, Adolphe has no feeling in his right hand

and pain in his left foot during cold weather, and he was forced him to drop out

of the state corrections academy.

      Ten shell casings and a partial bullet fragment from a .45 caliber

semiautomatic pistol were recovered from outside the bar. No gun was ever

recovered. On January 28, 2014, law enforcement arrested defendant in Florida

and returned him to New Jersey.

      The jury convicted defendant of the murder of Daniel as charged in count

two and the lesser-included offenses of aggravated manslaughter of Pierre and

Cureton under counts one and three respectively. The jury also convicted

defendant of the lesser-included offenses of third-degree aggravated assault by

causing bodily injury with a deadly weapon to Duvivier (count seven) and

Adolphe (count eight); of second-degree unlawful possession of a handgun

(count ten); and of second-degree possession of a weapon for an unlawful

purpose (count eleven). The jury found defendant not guilty of kidnapping

Bogar (count five) and Sapini (count six) and of carjacking Bogar (count four).

      The court sentenced defendant to forty-five years on the murder

conviction subject to the requirements of the No Early Release Act (NERA),

 N.J.S.A. 2C:43-7.2. The court sentenced defendant to twenty-seven years for


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                                      12
the aggravated manslaughter of Pierre and eighteen years for the aggravated

manslaughter of Cureton, with each sentence subject to NERA's requirements.

The court sentenced defendant to four-and-one-half years on each of the

aggravated assault convictions. The court merged the weapons offenses with

defendant's murder conviction. The court ordered that the sentences be served

consecutively, resulting in an aggregate sentence of ninety-nine years with a

seventy-six-and-one-half-year period of parole ineligibility pursuant to NERA. 7

This appeal followed.

      Defendant offers the following arguments for our consideration:

            POINT I

            THE   INSTRUCTION    ON   FLIGHT   AS
            CONSCIOUSNESS     OF    GUILT    WAS
            UNCONSTITUTIONAL BECAUSE IT SHIFTED
            THE BURDEN OF PROOF FROM THE STATE TO
            THE DEFENDANT.

            POINT II

            IT WAS REVERSIBLE ERROR FOR THE
            DETECTIVE TO GIVE HIS OPINION ON THE
            ULTIMATE ISSUE IN THE CASE AND TESTIFY
            THAT, HAVING VIEWED THE SAME VIDEO AS
            THE JURY, HE HAD IDENTIFIED THE PERSON
            "WHO MURDERED THE PEOPLE AT SLICK' S."

7
  The court later entered an amended judgment of conviction reflecting a fifteen-
year period of parole supervision following defendant's release from
incarceration.
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                                      13
            POINT III

            THE IMPOSITION OF FIVE CONSECUTIVE
            TERMS, AMOUNTING TO A SENTENCE OF 99
            YEARS, WITH A PAROLE DISQUALIFIER OF 76
            1/2 YEARS, IS A DE FACTO TERM OF LIFE
            WITHOUT PAROLE. IT WAS IMPOSED WITHOUT
            SERIOUS CONSIDERATION OF DEFENDANT'S
            YOUTH AND ON QUESTIONABLE FACTUAL
            FINDINGS, IS GROSSLY EXCESSIVE FOR THIS
            TEENAGER, AND AMOUNTS TO CRUEL AND
            UNUSUAL PUNISHMENT.

                                        II.

                                        A.

      Defendant objected to the State's request for a jury instruction on flight as

consciousness of guilt. The court overruled the objection and, during the charge

conference, addressed with counsel the substance of the flight charge. As part

of the court's final charge to the jury, it included the model jury instruction on

flight.8 See Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010).

Defendant did not object to the substance of the charge as instructed by the court.




8
   The court deviated from the model jury charge by including a sentence
distinguishing the jury's consideration of flight as evidence of consciousness of
guilt and flight as an element of the kidnapping offense for which defendant was
charged. Defendant does not challenge the inclusion of the sentence, or the
distinction it made, on appeal.
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                                       14
      "The appropriate time to object to a jury charge is 'before the jury retires

to consider its verdict.'" State v. Funderburg,  225 N.J. 66, 79 (2016) (quoting

R. 1:7-2). Where a defendant fails to object to a jury charge at trial, we review

for plain error and "disregard any alleged error 'unless it is of such a nature as

to have been clearly capable of producing an unjust result.'" Ibid. (quoting R.

2:10-2). "To warrant reversal . . . , an error at trial must be sufficient to raise 'a

reasonable doubt . . . as to whether the error led the jury to a result it otherwise

might not have reached.'" Ibid. (quoting State v. Jenkins,  178 N.J. 347, 361

(2004)).

      For the first time on appeal, defendant claims the flight instruction

improperly shifted the burden to him to prove the reason for his flight and to

"disprove flight in order to avoid the damaging consciousness-of-guilt

inference." Defendant also argues the court erred by giving the flight instruction

prior to instructing the jury on the substantive offenses, including the State 's

burden of proving the elements of the offenses charged beyond a reasonable

doubt. We find defendant's arguments are without sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief

comments.




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      The court's flight charge was comprised of a nearly verbatim restatement

of the model jury charge, which is consistent with our Supreme Court's standard

for an instruction on "the inferences the jury may draw" from evidence of flight

as consciousness of guilt. State v. Mann,  132 N.J. 410, 420 (1993). As the

Court explained in Mann, an instruction on flight requires the jury "first . . . find

that there was a departure, and then to find a motive for the departure . . . that

would turn the departure into flight." Id. at 421. The Court further explained

that if the defendant "offers an explanation for the departure, the trial court

should instruct the jury that if it finds the defendant's explanation credible, it

should not draw any inference of the defendant's consciousness of guilt from the

defendant's departure." Ibid.

      The model jury charge is in precise accord with the Court's instructions in

Mann, and, contrary to defendant's claim, the charge did not expressly or

implicitly impose any burden of proof on defendant or any requirement that he

disprove anything. The instruction merely explained the manner in which the

jury should consider the evidence, but only if it first determined "defendant,

fearing that an accusation or arrest would be made against him on the charge

involved in this indictment, took refuge in flight for the purpose of evading the

accusation or arrest." See, e.g., State v. Randolph,  228 N.J. 566, 594-95 (2017)


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(explaining "[f]light will have 'legal significance' if the circumstances

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

(quoting State v. Ingram,  196 N.J. 23, 46 (2008))); see also State v. Latney,  415 N.J. Super. 169, 175-76 (App. Div. 2010) (same). The instruction did not

impose any burden on defendant or define any elements of the offenses for

which he was charged.

      In reviewing the adequacy of a court's charge to the jury, we must consider

the charge as a whole in determining whether it is prejudicial. See State v.

Figueroa,  190 N.J. 219, 246 (2007). As part of its final charge to the jury, the

court repeatedly stated the State has the burden of proving the elements of the

offenses charged beyond a reasonable doubt and that the burden "never shifts to

[ ] defendant." There is nothing in the court's flight instruction suggesting

anything to the contrary.

      We therefore find no error in the model jury charge or in the court's use

of it to instruct the jury on flight as consciousness of guilt.       See State v.

Montalvo,  229 N.J. 300, 320 (2017) (finding where a defendant does not object

to the charge, "'there is a presumption that the charge was not error and was

unlikely to prejudice . . . defendant's case'" (quoting State v. Singleton,  211 N.J.
 157, 182 (2012))); State v. Whitaker,  402 N.J. Super. 495, 513-14 (App. Div.


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2008) ("When a jury instruction follows the model jury charge, although not

determinative, 'it is a persuasive argument in favor of the charge as delivered.'"

(quoting State v. Angoy,  329 N.J. Super. 79, 84 (App. Div. 2000))); see also

State v. Rodriguez,  365 N.J. Super. 38, 53-54 (App. Div. 2003) (finding no error

in a jury charge reciting verbatim a model jury charge consistent with New

Jersey precedent).

                                       B.

      During the presentation of the State's case, Newark Police homicide

detective Murad Muhammad testified about the investigation leading to

defendant's arrest. Early in the investigation, Muhammad reviewed surveillance

recordings from Slick's that "contain[ed] the actual shooting."       During the

playing of one of the recordings at trial, the prosecutor questioned Muhammad

as follows:

              PROSECUTOR: Now, Detective, you've viewed this
              video before; correct?

              MUHAMMAD:         Yes.

              PROSECUTOR: Were you able to make any sort of
              determination with regards to the shooter, upon your
              viewing of this video?

              MUHAMMAD:         Yes.



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            PROSECUTOR: And can you tell us what . . . some
            determinations that you made with regard to this
            particular video. Of the shooter.

                ....

            PROSECUTOR: What determinations did you make,
            Detective?

            MUHAMMAD: The identity of the -- who the shooter
            was.

            PROSECUTOR: Identity in what sense?
            MUHAMMAD: Who murdered the people at Slick's.

            PROSECUTOR: And is that by the body type?

            DETECTIVE MUHAMMAD: Yes.

      Defendant argues the recordings were of poor quality; Bogar's, Neal's,

Adolphe's, and Duvivier's identifications of him as the shooter "were less than

rock-solid"; and the State impermissibly buttressed its case by having

Muhammad testify he identified defendant as the shooter. Defendant claims

Muhammad's testimony constituted either inadmissible lay opinion, see N.J.R.E.

701, or expert opinion, see N.J.R.E. 702, because it constituted an opinion

concerning defendant's identity and guilt.

      We review a trial court's ruling on the admissibility of evidence for an

abuse of discretion. State v. Buckley,  216 N.J. 249, 260 (2013). Where, as here,

defendant did not object to the challenged testimony, if the evidence was

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                                      19
admitted in error we also must determine whether its admission is "plain error.

We may reverse on the basis of unchallenged error only if the error was 'clearly

capable of producing an unjust result.'" See State v. Ross,  229 N.J. 389, 407

(2017) (quoting R. 2:10-2). "To warrant reversal . . . an error at trial must be

sufficient to raise 'a reasonable doubt . . . as to whether the error led the jury to

a result it otherwise might not have reached.'" Funderburg,  225 N.J. at 79

(citation omitted) (quoting Jenkins,  178 N.J. at 361).

      Defendant's argument is based on the inaccurate factual premise that

Muhammad opined defendant was the shooter and was guilty. A plain reading

of the questions posed by the prosecutor and Muhammad's responses

demonstrates otherwise.      Neither the prosecutor nor Muhammad mentions

defendant; Muhammad does not identify defendant on the video recording or

otherwise as the shooter; and Muhammad does not opine on defendant's guilt.

      We also reject defendant's claim that despite the lack of any reference to

defendant as the shooter, "the sole and inexorable inference from the detective's

testimony that he identified the shooter was that he had determined it was "

defendant. The argument is undermined by the record.

      The prosecutor inquired about Muhammad's investigation and whether,

based on his review of the recording, he made "any determinations with regards


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                                        20
to the shooter." Muhammad explained he made a determination as to "the

identity of the . . . shooter," but the prosecutor did not ask if Muhammad

identified a particular person as the shooter and Muhammad never said he

identified defendant or anyone else as the shooter.         To the contrary, the

prosecutor asked only "in what sense" had Muhammad determined the "identity"

of the shooter, and Muhammad vaguely explained it was "by the body type."

Muhammad did not suggest his determination about the shooter's body type

resulted in defendant's identification or that he relied on the determination to

take any other actions during the investigation. Cf. State v. Lazo,  209 N.J. 9,

21-22 (2012) (finding improper detective's testimony explaining why he put a

defendant's photo in an array because it "enhanced the victim's credibility and

intruded on the jury's role").

       In sum, we are not convinced Muhammad's vague reference to his

determination concerning the identity of the shooter by his or her body type

constituted an opinion concerning defendant's identity as the shooter,

defendant's guilt, or anything else. He testified he made a determination, but he

did not explain it in any discernable manner related to defendant, and he did not

offer any opinions based on it. Thus, we find no abuse of discretion in the court's

admission of the testimony.


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                                       21
      Moreover, even accepting defendant's claim Muhammad's testimony may

have been interpreted in some inexplicable manner as an opinion about

defendant's identity or guilt, we do not find its admission raises "a reasonable

doubt as to whether the error led the jury to a result it otherwise might not have

reached." Ross,  229 N.J. at 407.

      Defendant correctly argues identification was the central issue at trial, but

the identification evidence against him was overwhelming. Defendant was

separately and independently identified as the shooter by four different

witnesses, one of whom knew defendant prior to the shootings. In her statement

to the police following the shooting, Sapini, who arrived at the bar that evening

with defendant, explained that defendant, armed with a handgun, entered

Bogar's car immediately following the shooting. Defendant was also identified

on the video recordings by the mother of his children, and the jury was able to

review the recordings during the trial. Muhammad's vague testimony about a

determination he made about the shooter's body type added nothing, and the

testimony, even if improper, does not raise reasonable doubt that its admission

led to a result the jury would not have otherwise reached. See Ross,  229 N.J. at
 407; R. 2:10-2.




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                                       22
                                         C.

      Defendant argues his aggregate ninety-nine-year sentence is excessive,

constitutes a de facto life sentence, and is an unconstitutional cruel and unusual

punishment. He contends the court erred by failing to consider his age—

nineteen—in its sentencing determination, and by failing to apply the standards

for imposition of consecutive sentences established in State v. Yarbough,  100 N.J. 627 (1985).


      Our review of a court's sentencing decision "is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon,  202 N.J. 283,

297 (2010). We "must affirm the sentence of a trial court unless: (1) the

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

State v. Roth,  95 N.J. 334, 364-65 (1984)).


      We are further "bound to affirm a sentence, even if [we] would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent



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credible evidence in the record." State v. O'Donnell,  117 N.J. 210, 215 (1989).

An appellate court should modify a sentence "only when the trial court's

determination was 'clearly mistaken.'" State v. Jabbour,  118 N.J. 1, 6 (1990)

(quoting State v. Jarbath,  114 N.J. 394, 401 (1989)).

      Defendant argues that, because he was nineteen years old when he

committed the offenses for which he was convicted, the sentencing court was

required to apply the principles established in Miller v. Alabama,  567 U.S. 460

(2012), and State v. Zuber,  227 N.J. 422 (2017), for the determination of a

juvenile's sentence that is "the practical equivalent of life without parole,"

Zuber,  227 N.J. at 429. We reject the argument because Miller and Zuber

considered sentencing principles applicable to juveniles, and defendant was an

adult when he committed the murder, two aggravated manslaughters, and two

aggravated assaults for which he was convicted and sentenced. See  N.J.S.A.

2A:4A-22(a) (defining, under the Code of Juvenile Justice, a "[j]uvenile" as "an

individual who is under the age of 18 years"). The principles addressed and

established in Miller and Zuber are inapposite here.

      Although the court correctly rejected defendant's reliance on Miller and

Zuber, it nonetheless considered defendant's age and the Zuber factors in its

sentencing decision. In Zuber, the Court explained that a court determining


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whether to impose a lengthy term of imprisonment for a juvenile "should

consider factors such as [the] defendant's 'immaturity, impetuosity, and failure

to appreciate risks and consequences'; 'family and home environment'; family

and peer pressures; 'inability to deal with police officers or prosecutors' or his

own attorney; and 'the possibility of rehabilitation.'"  227 N.J. at 453 (quoting

Miller,  567 U.S. at 478).

      Here, the court addressed defendant's "chronological age and its hallmark

features[,]" Zuber,  227 N.J. at 445 (quoting Miller,  576 U.S. at 477), noting

defendant's "immaturity, impetuosity, and failure to appreciate risks and

consequences" and that, at age nineteen, defendant made decisions he would not

make with more "worldly experience." The court also considered defendant's

family environment and family and peer pressures, see ibid., concluding

defendant's family environment appeared "entirely solid" and there was no

evidence family or peer pressure played any part in defendant's crimes. To the

contrary, the judge found defendant's "independent act or decision to . . . rachet

it up into a homicidal act was that in the mind of [defendant] . . . alone."

      The court further found defendant's actions suggested a level of "some

sophistication," explaining defendant left the jurisdiction following the

shootings. The court also addressed defendant's prospect for rehabilitation,


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explaining that was the "only factor that really mitigates in any significant form

towards [defendant]" because, as a young man, rehabilitation is "more likely to

occur as [a] . . . youthful offender ages and neurological development

increases."   Thus, contrary to defendant's contention, the court considered

defendant's age, characterizing it as "a non-statutory mitigating factor," and

defendant's potential for rehabilitation in its sentencing calculus. 9

      In addition to its consideration of defendant's age, the court found and

weighed the aggravating and mitigating factors under  N.J.S.A. 2C:44-1(a) and

(b). The court's findings are supported by the record. Bolvito,  217 N.J. at 228

(explaining a court's finding of aggravating and mitigating factors must be

supported by competent record evidence). The court found aggravating factor

three, the risk defendant will commit another offense,  N.J.S.A. 2C:44-1(a)(3).


9
  Although age is not distinctly identified as a factor to be considered under our
sentencing statutes, see, e.g.,  N.J.S.A. 2C:44-1(a) and (b), a court may properly
consider a defendant's age in its assessment of mitigating factors two, "[t]he
defendant did not contemplate that his conduct would cause or threaten serious
harm,"  N.J.S.A. 2C:44-1(b)(2); four, "[t]here were substantial grounds tending
to excuse or justify the defendant's conduct, though failing to establish a
defense,"  N.J.S.A. 2C:44-1(b)(4); eight, "[t]he defendant's conduct was the
result of circumstances unlikely to recur,"  N.J.S.A. 2C:44-1(b)(8); and thirteen,
"[t]he conduct of a youthful defendant was substantially influenced by another
person more mature than the defendant,"  N.J.S.A. 2C:44-1(b)(13). Here,
however, defendant presented no evidence, other than he was nineteen when the
crimes were committed, supporting a finding of any of these mitigating factors.


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As noted by the sentencing court, the factor is supported by evidence showing

defendant's prior minor brush with the law—a 2013 municipal court

conviction—did not dissuade him from committing the knowing and purposeful

murder, aggravated manslaughters, aggravated assaults, and weapons offenses

for which he was convicted. Although the court did not expressly correlate

defendant's failure to accept any responsibility for his actions and lack of any

remorse as a basis for its finding of aggravating factor three, those facts also

support its finding there is a risk defendant will commit another offense. See

State v. Carey,  168 N.J. 413, 427 (2001) (finding defendant's failure to accept

responsibility for his crimes "does not irrefutably prove that [the] defendant is

likely to re-offend, but it does provide support for" such a conclusion).

      The evidence also supports the court's finding of aggravating factor nine,

the need to deter defendant and others from violating the law,  N.J.S.A. 2C:44- -

1(a)(9). The court found there was a need for general and specific deterrence

because defendant engaged in gun violence, caused the death of three

individuals, and caused long-lasting injuries to two others. The court correctly

noted that the need for deterrence increases proportionately with the degree of

the offenses for which a defendant is sentenced, and that defendant committed

the most serious crime found in our Criminal Code, knowing and purposeful


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murder, as well as two aggravated manslaughters and two aggravated assaults.

See Carey,  168 N.J. at 427; see also State v. Megargel,  143 N.J. 484, 501 (1996)

("[D]emands for deterrence are strengthened in direct proportion to the gravity

and harmlessness of the offense and the deliberateness of the offender." (citation

omitted)).

      The court further appropriately considered "defendant's role in the

incident to determine" there was a "need to deter him from further crimes and

the corresponding need to protect the public from him." Megargel,  143 N.J. at
 501. "As the Court has held, '[t]he paramount reason we focus on the severity

of the crime is to assure the protection of the public and the deterrence of ot hers.

The higher the degree of the crime, the greater the public need for protection

and the more need for deterrence.'" State v. Fuentes,  217 N.J. 57, 74 (2014)

(alteration in original) (quoting Megargel,  143 N.J. at 500). Here, the number

and seriousness of the crimes defendant committed support the court's finding

of aggravating factor nine.

      The court found mitigating factor seven, defendant has no prior history or

prior delinquency or criminal activity and lead a law-abiding life for a

substantial period of time prior to the commission of the present offenses,

 N.J.S.A. 2C:44-1(b)(7). The court explained that but for his municipal court


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conviction, defendant had led a law-abiding life, and concluded defendant's

record supported a finding of the factor.

      The court's weighing of the factors also finds support in the record. The

court weighed defendant's age and "lack of . . . criminal sophistication" against

the need for general and specific deterrence, to which the court assigned heavy

weight. The court further found the aggravating factors preponderated over the

mitigating factors. We discern no basis to "second guess" the court's findings

and determination, see Megargel,  143 N.J. at 494 ("Judges who exercise

discretion and comply with the principles of sentencing remain free from the

fear of 'second guessing.'" (citation omitted)), because they are supported by the

record.

      We also find no abuse of the court's discretion in its imposition of the

terms of imprisonment for each of the offenses.         The court's finding the

aggravating factors preponderate over the mitigating factors supported the terms

of imprisonment imposed for each of the offenses.

      We reject defendant's assertion the court erred by imposing consecutive

sentences for the murder, two aggravated manslaughters, and two aggravated

assaults. Defendant argues that because the indictment charged defendant with

three counts of murder but the jury convicted him of only one count of murder,


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the jury found defendant had only one purpose—to kill Daniel—and therefore,

"the crimes and their objectives were not predominantly independent of each

other[.]" Defendant claims that "[b]y rejecting murder convictions for two of

the decedents and returning manslaughter verdicts for them, the jury concluded

that their deaths were the reckless byproduct of the singular objective to kill the

third victim." Moreover, defendant contends that his crimes were committed so

closely in time and place as to indicate a single period of aberrant behavior.

      When a defendant receives multiple sentences of imprisonment "for more

than one offense, . . . such multiple sentences shall run concurrently or

consecutively as the court determines at the time of sentence."  N.J.S.A. 2C:44-

5(a). The statute does not define when consecutive or concurrent sentences are

appropriate. In Yarbough, the Court set forth the following guidelines for

determining whether a consecutive sentence is appropriate:

            (1) there can be no free crimes in a system for which
            the punishment shall fit the crime;

            (2) the reasons for imposing either a consecutive or
            concurrent sentence should be separately stated in the
            sentencing decision;

            (3) some reasons to be considered by the sentencing
            court should include facts relating to the crimes,
            including whether or not:



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            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous;

            (4) there should be no double counting of aggravating
            factors;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense[.]

            [ 100 N.J. at 643-44 (footnote omitted).]

      "A sixth factor, which imposed 'an overall outer limit on the cumulation

of consecutive sentences for multiple offenses not to exceed the sum of the

longest terms,' was eliminated by the Legislature in a 1993 amendment to"

 N.J.S.A. 2C:44-5(a). State v. Liepe,  239 N.J. 359, 372 n.4 (2019). The statute

now provides "[t]here shall be no overall outer limit on the cumulation of

consecutive sentences for multiple offenses."  N.J.S.A. 2C:44-5(a).



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      The court's imposition of consecutive terms for the murder, two counts of

aggravated manslaughter, and two counts of aggravated assault was based on a

reasoned application of the Yarbough standards. Although we find the court's

determination the crimes were not committed so closely in time as to indicate a

single period of aberrant behavior is not supported by the record, the court 's

other findings support its imposition of consecutive terms for what it found were

crimes involving "separate acts of violence or threats of violence" involving

"multiple victims."     See, e.g., Carey,  168 N.J. at 427-28 (explaining a

consecutive sentence can be imposed even if a majority of the Yarbough factors

support concurrent sentences).

       "[C]rimes involving multiple victims represent an especially suitable

circumstance for the imposition of consecutive sentences because the 'total

impact of singular offenses against different victims will generally exceed the

total impact on a single individual who is victimized multiple times.'" State v.

Molina,  168 N.J. 436, 442 (2001) (quoting Carey,  168 N.J. at 428). Thus, "the

multiple-victims factor is entitled to great weight and should ordinarily result in

the imposition of at least two consecutive terms when multiple deaths or serious

bodily injuries have been inflicted upon multiple victims by the defendant."

Carey,  168 N.J. at 429-30. As the Court has explained, a "core principle" in


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                                       32
determining whether to impose consecutive sentences is that "by virtue of their

impact on multiple lives, crimes involving two or more victims are particularly

suited for the imposition of consecutive sentences." Liepe,  239 N.J. at 375. That

principle "resonates most clearly in cases in which a perpetrator intentionally

targets multiple victims" but it also applies in "cases in which . . . the defendant

does not intend to harm multiple victims but it is foreseeable that his or her

reckless conduct will result in multiple victims." Ibid. (quoting Carey,  168 N.J.

at 429).

      Defendant caused the death of three individuals and bodily injury to two

others. The court correctly determined defendant's violent crimes committed

against five separate victims constituted separate crimes for which consecutive

sentences were appropriate. We are therefore satisfied the court's application of

the Yarbough factors and decision to impose consecutive sentences for the five

violent crimes for which defendant was convicted was supported by the record,

see, e.g., id. at 377-78 (finding three consecutive custodial sentences were

warranted where there were "injuries inflicted on multiple victims"); Carey,  168 N.J. at 430-31 (finding it "appropriate to impose consecutive sentences on

defendants" whose crimes "result in multiple deaths or multiple persons

sustaining serious personal injuries"), and not so wide of the mark as to require


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                                        33
our intervention, see ibid. (applying abuse of discretion standard to review a trial

court's imposition of consecutive sentences).

      The fairness of the overall sentence should be considered in reviewing the

imposition of consecutive sentences, State v. Sutton,  132 N.J. 471, 485 (1993),

and defendant argues his aggregate ninety-nine-year sentence should shock our

judicial conscience and constitutes cruel and unusual punishment. To be sure,

the court imposed a very long sentence, but the sentence's validity is not

measured by its length. A determination of whether a sentence shocks the

judicial conscience requires consideration of the court's "application of the

guidelines to the facts of [the] case." Fuentes,  217 N.J. at 70. The court properly

applied the sentencing guidelines to defendant's unspeakable and indiscriminate

gun violence that resulted in the death of three innocent victims and bodily

injury to two others. As the Court explained in Liepe, "defendant may spend

the rest of his life in jail[,]" however, the trial court's task "was not to ensure

defendant's eventual release, but to devise a sentence commensurate with

defendant's crimes."  239 N.J. at 379. Because the "consecutive terms do not

violate statutory or judicial guidelines for sentencing," and the aggregate term

imposed "do[es] not shock the judicial conscience[,]" we find the court did not

abuse its discretion. Ibid.


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                                        34
      Any other arguments made by defendant that we have not expressly

addressed are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

      Affirmed.




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