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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1966-18






                    Argued January 19, 2021 – Decided May 4, 2021

                    Before Judges Fasciale and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 18-01-0010.

                    Jennifer A. Randolph, Designated Counsel, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender, attorney; Jennifer A. Randolph, on the

                    Sarah D. Brigham, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
             General, attorney; Sarah D. Brigham, of counsel and on
             the brief).


       Defendant appeals from his jury trial conviction for second-degree certain

persons not to have weapons,  N.J.S.A. 2C:39-7(b). He contends the trial court

erred in denying his motion to suppress the handgun found in his jacket pocket.

He also contends his admission to police that the gun was concealed in his

pocket was elicited in violation of his Miranda rights. 1 Defendant further

contends the trial court erred by denying his Batson/Gilmore 2 motion contesting

the prosecutor's use of peremptory juror challenges, and by allowing the State

at trial to elicit testimony regarding another gun and drugs that were found in

the residence into which defendant had fled. He also argues the court imposed

an excessive sentence.

       After carefully reviewing the record in light of the applicable principles

of law, we reject all but one of defendant's contentions. The record before us

shows that the trial court abruptly ended the Batson/Gilmore hearing after the

prosecutor offered a race-neutral explanation for only one of the two African

    Miranda v. Arizona,  384 U.S. 436 (1966).
   Batson v. Kentucky,  476 U.S. 79 (1986); State v. Gilmore,  103 N.J. 508

                                        2                                  A-1966-18
American jurors who, defendant claims, were impermissibly challenged on the

basis of race. We remand the matter for the trial court to complete the truncated

hearing. In all other respects, we affirm the conviction and sentence, subject to

the outcome of the Batson/Gilmore hearing on remand.


      In January 2018, a grand jury indicted defendant for second-degree

unlawful possession of a firearm,  N.J.S.A. 2C:39-5(b), and second-degree

unlawful possession of a firearm by a certain person, that is, a person previously

convicted of a specified crime,  N.J.S.A. 2C:39-7(b). Defendant filed a motion

to suppress the handgun. The motion judge convened an evidentiary hearing

after which defendant's motion to suppress was denied.

      On October 23, 2018, a different judge granted the State's motion to admit

into evidence admissions defendant made during the encounter with police.

That judge, who presided over the trial, also granted the State's motion to

dismiss count one of the indictment for second-degree unlawful possession of a

firearm,  N.J.S.A. 2C:58-4, 2C:39-5(b).

      Jury selection occurred over the span of two days. At the conclusion of

the voir dire process, defendant asserted a Batson/Gilmore violation, claiming

the prosecutor improperly excused two of the three African American jurors on

                                         3                                  A-1966-18
the panel.   The trial judge denied defendant's motion after requiring the

prosecutor to explain why only one of the two minority jurors had been

peremptorily excused.

      The trial judge convened a bifurcated trial from October 30, 2018 to

November 1, 2018, after which the jury found defendant guilty of the certain

persons handgun offense.     Defendant appeared before the trial judge for

sentencing on December 7, 2018. The judge denied the State's motion to impose

an extended term as a persistent offender pursuant to  N.J.S.A. 2C:44-3(a). The

judge then imposed an eight-year prison term with a five-year period of parole

ineligibility. The judge ordered the sentence to be served consecutively to the

prison term defendant was already serving on his prior convictions for second-

degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b)(1), second-degree

certain persons not to have a weapon,  N.J.S.A. 2C:39-7(b)(1), third-degree

hindering,  N.J.S.A. 2C:29-3(b)(4), and fourth-degree resisting arrest, 2C:29-


      Defendant raises the following contentions for our consideration:

             POINT I

                                      4                                   A-1966-18


             1. POLICE EXCEEDED THE

             POLICE      LACKED     THE

             3.    POLICE      LACKED



                   5                       A-1966-18

              POINT IV

              ON THE BASIS OF RACE

              POINT V

              DEFENDANT'S         SENTENCE        IS   MANIFESTLY


        We first address defendant's contention the motion judge erred in denying

the motion to suppress the handgun. We discern the following facts from the

suppression hearing.

        In the early morning hours of November 2, 2017, a team of New Jersey

State Police members assembled at the 1200-block of Thurman Street in Camden

to execute an arrest warrant for Julian Bell, 3 who resided at 1235 Thurman

Street. The State Police had been conducting a long-term investigation of

motorcycle thefts in the area. Earlier that evening, they observed Bell engaging

    Bell is not a codefendant and is not a party to this appeal.

                                          6                                A-1966-18
in a suspected narcotics transaction in front of the 1235 residence. The officers

had an outstanding Automated Traffic System ("ATS") warrant for Bell.

      The team of officers observed a group of several men, including Bell and

defendant, standing in front of 1235 and 1237 Thurman Street. The team

approached and identified themselves as police officers, which prompted the

group of men to flee. The officers observed Bell and defendant running toward

the 1237 residence.    The officers pursued Bell and followed him into the

residence. The officers lost sight of Bell and defendant. Once inside, the

officers conducted a sweep-search of the premises for Bell. One of the officers,

Detective DeVirgiliis, looked into a room that had no furniture. He observed

defendant lying prone on the floor with his arms stretched out in what the

detective described as a "safety position." Detective DeVirgiliis had not ordered

defendant to assume that submissive position. Detective DeVirgiliis knew that

the person on the floor was not Bell. The detective handcuffed defendant as a

precautionary measure and asked if he had any weapons. Defendant responded

that he had a knife. Detective DeVirgiliis conducted a frisk during which he

secured the knife, which was clipped to defendant's belt. The detective also

observed a bulge and removed cigarettes, a lighter, and keys. While conducting

the frisk, Detective DeVirgiliis told defendant he would probably be let go soon,

                                       7                                   A-1966-18
as he was not the subject of the investigation. Defendant replied it was unlikely

he would be released.         Detective DeVirgiliis—who was still frisking

defendant—asked for clarification, and defendant said "'[n]o, you're not going

to let me go because I have a gun in my jacket pocket.'" The jacket was on the

floor near defendant. Detective DeVirgiliis found the gun in the jacket pocket

and removed it.

      Defendant contends the State Police officers had no lawful authority to

pursue Bell into the residence, to conduct a sweep search, to conduct the

protective frisk of defendant's person or the frisk of the nearby jacket that

revealed the firearm. We disagree. Every step taken by the officers in the

swiftly unfolding sequence of events was objectively reasonable and lawful.

      We begin our analysis by acknowledging that appellate courts "must

uphold the factual findings underlying the trial court's decision, so long as those

findings are 'supported by sufficient credible evidence in the record.'" State v.

Evans,  235 N.J. 125, 133 (2018) (quoting State v. Elders,  192 N.J. 224, 243

(2007)). An appellate court should defer to the trial judge's factual findings, as

the trial judge has a better opportunity to get a "feel" of the case. Elders,  192 N.J. 244. Relatedly, a trial judge's credibility determinations should be upheld

if such determinations are supported by sufficient, credible evidence. State v.

                                        8                                    A-1966-18
S.S.,  229 N.J. 360, 374 (2017). In contrast, a reviewing court is not required to

afford such deference to a trial court's legal conclusions, which are reviewed de

novo. State v. Bryant,  227 N.J. 60, 71–72 (2016); State v. Hathaway,  222 N.J.
 453, 467 (2015).

      At the suppression hearing, the State presented testimony from three State

Police officers, including Detective DeVirgiliis. Defendant presented testimony

from Bell.   Bell testified that he ran out the back door of the residence,

contradicting the testimony of the State Police member who was stationed to

guard the rear door and who testified that no one had exited the residence.

      The motion judge found that the State Police witnesses were credible,

noting they each were "responsive to the questions that were asked of them and

fully responded to the questions." In contrast, the judge questioned Bell's

credibility, noting that he "was not clearly responsive in his answers."

      The judge determined that the officers were justified in entering the

premises under the hot pursuit doctrine, were permitted to conduct a sweep-

search of the residence to look for Bell and were justified in detaining and

frisking defendant and his jacket once they found him lying prone of the floor

with his arms outstretched and he admitted to possessing weapons. We address

                                        9                                  A-1966-18
each of these distinct police actions in turn, beginning with the police entry into

the residence in pursuit of Bell.

       We conclude the police entry was lawful under the hot pursuit doctrine as

explained and applied by our Supreme Court in State v. Jones,  143 N.J. 4 (1995).

The facts of that case are similar to the circumstances that unfolded in the

present case. The police in that case were conducting a surveillance that was

unrelated to Jones. Officers observed a vehicle containing defendant and a

companion, Collier, pull into the parking lot. Id. at 8. One officer recognized

Collier from previous encounters and remembered seeing an outstanding

warrant for his arrest earlier that evening, although the officer did not know the

offenses underlying the warrant. Ibid. Subsequently, the officer learned that

the warrant was issued for failure to pay fines assessed for drug paraphernalia

convictions. Ibid. The officers exited their vehicle and approached Collier and

Jones. Ibid. Both fled into an apartment building with the two police officers

not far behind.    Ibid.   Collier and Jones ran up the stairs and entered an

apartment. Ibid. The officers tried the door, found it locked, and kicked it down.

Id. at 9.

       In sustaining the forcible entry, the Court explained that "'[o]fficers have

no discretion in making arrests where there is an outstanding warrant.'" Id. at

                                       10                                    A-1966-18
14. (quoting Stone v. State,  620 So. 2d 200, 201 (Fla. Dist. Ct. App. 1993)). "In

fact," the Court noted, "had the officers failed to attempt to effectuate the

warrant, they would have been derelict in their duties." Ibid.

Accordingly, the Court held,

            under both statutory and decisional law, the officers
            had a right to effect the arrest of co-defendant Collier
            by entering the apartment. The officers were acting
            under a validly issued arrest warrant. Collier fled into
            an apartment building. The officers followed in hot
            pursuit. They observed defendant and Collier run into
            [the] apartment . . ."

            [Id. at 14].

      The Court rejected Jones's contention that the hot pursuit entry was

unlawful because the warrant was not for an indictable crime. The Court

explained that,

            [i]n view of the significance that attaches to the
            issuance of a warrant and the fact that "every arrest,
            regardless of the nature of the offense [may] present a
            risk of danger to an officer," . . . to require police
            officers to distinguish between arrest warrants issued
            for minor and serious offenses would be unreasonable.

            [Id. at 17 (quoting State v. Bruzzese,  94 N.J. 210, 233

The Court thus held that police officers acting pursuant to a valid arrest warrant

have the right to follow a fleeing suspect into a private residence. Id. at 19.

                                       11                                   A-1966-18
      Applying that rule to the facts before us, we conclude the State Police

officers were justified in pursuing Bell into the private residence based on the

outstanding ATS warrant.

      We likewise reject defendant's contention that the officers were precluded

from fanning out within the residence to find Bell after they crossed the

threshold in hot pursuit. The record shows the officers lost sight of Bell after

he entered the residence, prompting them to undertake a limited visual

inspection of possible locations where Bell could be hiding.

      We note that the officers were not conducting a protective sweep pursuant

to the doctrine announced in Maryland v. Buie,  494 U.S. 325, 327 (1990), which

is designed to protect officers from being ambushed by other occupants when

they are lawfully inside a residence to make an arrest. Rather, in this instance,

the officers were conducting a sweep search for Bell. Their authority to search

the residence for him derived from their authority to enter the residence under

the hot pursuit doctrine. The exigency that justified the intrusion into the

residence did not suddenly evaporate when the officers crossed the threshold.

Rather, the exigency that justified the entry continued unabated until Bell was

                                      12                                   A-1966-18
either apprehended or left the premises. 4 Because the purpose of the hot pursuit

entry was to locate and apprehend Bell, the officers' authority to cross the

threshold of the residence extended to rooms within the residence into which

Bell may have retreated.

       The record before us clearly shows, moreover, that the search of the

premises for Bell was narrowly confined to a cursory visual inspection of those

places where he could be hiding. We therefore hold that Detective DeVirgiliis

lawfully entered the room where he encountered defendant.

       We next address defendant's contention that the detective had no lawful

authority to detain and frisk him. In view of the chaotic events leading to the

encounter, including not only defendant's flight from police but also the unusual

position on the floor he assumed in anticipation of the police encounter, the

officers had reasonable and articulable suspicion upon which to briefly detain

defendant under the Terry 5 doctrine. See State v. Thomas,  110 N.J. 673, 677–

78 (1988) (applying a totality of the circumstances test in determining the

  As we have noted, the motion court accredited an officer's testimony that,
contrary to Bell's testimony, Bell did not flee from the premises through the back
door. Accordingly, the officers were still searching the premises for Bell at the
moment Detective DeVirgiliis encountered defendant lying prone on the floor
in an empty room.
    Terry v. Ohio,  392 U.S. 1 (1968).

                                        13                                  A-1966-18
existence of reasonable suspicion to justify an investigative detention under

Terry); see also State v. Roach,  172 N.J. 19, 27 (2002). We note that defendant

fled from the approaching officers along with Bell, who police had observed

engaging in drug distribution activity earlier that evening. Fleeing into the

residence with Bell provided a reason for the officers to suspect that defendant

and Bell were acting in concert and that defendant was linked to Bell's observed

criminal activity. Cf. State v. Tucker,  136 N.J. 158, 169 (1994) (noting that

unexplained flight, by itself, does not automatically provide reasonable

suspicion to justify an investigative detention). We add the officers never

ordered defendant to halt. Nor did they order defendant to get on the floor. He

did that on his own before Detective DeVirgiliis entered the room.

      Defendant's flight into the residence, coupled with the submissive position

on the floor he had assumed even before Detective DeVirgiliis entered the room,

also provided reasonable suspicion to believe he posed a danger to the detective

and other officers. As the motion judge aptly noted, given the totality of the

circumstances, the chaotic situation "created an objectively dangerous situation

for police." We believe it was reasonable in these circumstances for Detective

DeVirgiliis to suspect that defendant had fled into the residence to acquire or

discard a weapon. By removing the jacket, he had been wearing, moreover,

                                      14                                   A-1966-18
defendant signaled that he did not want the officers to encounter him while he

was still wearing the garment. We stress that the frisk of defendant's person was

initiated only after defendant admitted to possessing a knife. 6 The frisk of the

nearby jacket on the floor occurred after defendant admitted that it concealed a

firearm. 7 We therefore hold the handgun was lawfully seized from defendant's

jacket pocket under the Terry protective frisk doctrine.


      We turn next to defendant's contention that his admissions to Detective

DeVirgiliis that he possessed a knife, and a gun were elicited in violation of

Miranda.    It is not disputed that defendant was not apprised of his Miranda

rights before making those admissions. Nor is it disputed that defendant was

handcuffed when he uttered the admissions in response to the detective's

question regarding the presence of weapons. Defendant claims the level of

  In the next section, we address defendant's contention that his admissions were
elicited in violation of Miranda and that the basis for frisking the jacket was the
fruit of that violation.
  We note that had the detective not found the handgun, defendant would have
been released from the investigative detention and would have regained access
to his jacket and the firearm concealed in the pocket. Cf., State v. Robinson,
 228 N.J. 529 (2017) (authority to frisk passenger cabin of detained vehicle
dissipated when police neutralized the danger by securing the passengers and
preventing them from re-entering the vehicle).

                                       15                                    A-1966-18
restraint exceeded the boundaries of an investigative detention under Terry.

Defendant thus urges us to overturn the motion court's finding that he was not

"in custody" for purposes of the Miranda rule.

      In State v. O'Neal, our Supreme Court succinctly summarized the

governing legal principles, explaining:

            In general, Miranda "warnings must be given before a
            suspect's statement made during custodial interrogation
            [may] be admitted in evidence." Dickerson v. United
            States,  530 U.S. 428, 431–32 (2000). In Miranda,
            supra, the Court defined "custodial interrogation" as
            questioning initiated by law enforcement "after a
            person has been taken into custody or otherwise
            deprived of his freedom of action in any significant
            way."  384 U.S.  at 444. The determination whether a
            suspect is in "custody depends on the objective
            circumstances of the interrogation, not on the
            subjective views harbored by either the interrogating
            officers or the person being questioned." Stansbury v.
            California,  511 U.S. 318, 323 (1994). That is, a police
            officer's "unarticulated plan has no bearing on the
            question whether a suspect was 'in custody' at a
            particular time; the only relevant inquiry is how a
            reasonable [person] in the suspect's position would
            have understood his situation." Berkemer v. McCarty,
             468 U.S. 420, 442 (1984) (footnote omitted); see State
            v. P.Z.,  152 N.J. 86, 103 (1997) (noting that "critical
            determinant of custody is whether there has been a
            significant deprivation of the suspect's freedom of
            action based on the objective circumstances, including
            the time and place of the interrogation, the status of the
            interrogator, the status of the suspect, and other such
            factors") (citations omitted).

                                       16                                A-1966-18
            [ 190 N.J. 601, 615–16 (2007)].

      In State v. P.Z., our Supreme Court also explained:

            Under federal law, the "ultimate inquiry is simply
            whether there is a 'formal arrest or restraint on freedom
            of movement' of the degree associated with a formal
            arrest." California v. Beheler,  463 U.S. 1121, 1125
            (1983) (internal quotation marks omitted). Our courts
            have also recognized that "custody in the Miranda sense
            does not necessitate a formal arrest, 'nor does it require
            physical restraint in a police station, nor the application
            of handcuffs, and may occur in a suspect's home or a
            public place other than a police station.'" State v. Lutz,
             165 N.J. Super. 278, 285 (App. Div. 1979) (quoting
            State v. Godfrey,  131 N.J. Super. 168, 175, 329 A.2d 75 (App. Div. 1974)).

            [ 152 N.J. at 102–03].

      In many—if not most—situations, handcuffing is consistent with a

custodial arrest and signals to the suspect that he or she is in police custody in

the Miranda sense. Cf. State v. Dickey,  152 N.J. 468, 483 (1998) ("Although

not establishing the fact of an arrest, see United States v. Melendez-Garcia,  28 F.3d 1046, 1052 (10th Cir. 1994), the use of handcuffs heightened the degree of

intrusion upon the liberty of the suspects."). In this instance, the motion court

determined that defendant was not in custody for Miranda purposes despite

being handcuffed. The judge reasoned that the handcuffs were used for officer

                                       17                                   A-1966-18
safety and to prevent further flight during what was expected to be a brief

investigative detention.

      The record suggests that notwithstanding the detective's assurance to

defendant that he was not the subject of the investigation and would likely be

released soon, defendant subjectively believed that he would be taken into

custody. Defendant all but guaranteed that outcome, moreover, by admitting

that a gun was concealed in his jacket pocket. As we have noted, and as the

Supreme Court in O'Neal emphasized, we employ an objective test in

determining whether a person is in custody for purposes of the general rule that

a custodial interrogation must be prefaced by the administration of Miranda

warnings. O'Neal,  190 N.J. at 616 (quoting Stansbury,  511 U.S. at 323). We

need not decide, however, whether in these unusual circumstances a reasonable

person in defendant's position would have understood the situation to be more

than a temporary detention under the Terry doctrine. Even assuming for the

sake of argument that defendant was in custody for Miranda purposes, we

believe this situation falls within the boundaries of the public/officer safety

exception to the Miranda rule first announced by the United States Supreme

Court in New York v. Quarles,  467 U.S. 649 (1984).

                                      18                                  A-1966-18
      That narrow exception was embraced by our Supreme Court in O'Neal.

The Court explained:

            This case presents an opportunity to provide guidance
            concerning the safety exception to Miranda. That
            exception is based on the "objectively reasonable need
            to protect the police or the public from any immediate
            danger associated with the weapon." New York v.
            Quarles,  467 U.S. 649, 659 n.8 (1984). It is a narrow
            exception that "will be circumscribed by the exigency
            which justifies it." Id. at 658. Moreover, the United
            States Supreme Court expressed that "police officers
            can and will distinguish almost instinctively between
            questions necessary to secure their own safety or the
            safety of the public and questions designed solely to
            elicit testimonial evidence from a suspect." Id. at 658–

            [ 190 N.J. at 616–17].

      The Court in O'Neal cited with approval cases from other jurisdictions

that applied the public/officer safety exception to Miranda. The Court noted,

for example, that in United States v. Shea,  150 F.3d 44 (1st Cir. 1998), the police

arrested the defendant for his suspected role in an attempted robbery. Prior to

giving Miranda warnings to the defendant in that case, one of the police officers

asked if he had any weapons or needles on his person that could harm the officer.

The United States Court of Appeals for the First Circuit concluded that the safety

exception to Miranda applied in those circumstances.  190 N.J. at 617. Our

                                       19                                    A-1966-18
Supreme Court also cited to United States v. Edwards,  885 F.2d 377, 384 (7th

Cir. 1989), which approved a police officer asking a drug dealer whether he had

a weapon without first giving Miranda warnings. Ibid.

      The Court in O'Neal concluded that in limited circumstances, "based on

an 'objectively reasonable need to protect the police or the public from any

immediate danger associated with the weapon[,]' a safety exception to Miranda

is appropriate." Id. at 618 (citing Quarles,  467 U.S.  at 659 n.8). The Court

emphasized that to invoke this narrow exception to the Miranda rule, "the police

must specifically frame the question to elicit a response concerning the possible

presence of a weapon." Ibid.

      In this instance, Detective DeVirgiliis' questions were narrowly tailored

to address whether defendant had any weapons on or about his person. The

detective's questions were not "designed solely to elicit testimonial evidence

from a suspect." Id. at 617 (quoting Quarles,  467 U.S. at 658–59). Notably, the

detective did not ask defendant why he ran when police announced their

presence. We therefore hold that given the dangers posed to the pursuing

officers by the chaos precipitated by flight into a residence where weapons might

be stored, coupled with defendant's unusual behavior in voluntarily lying prone

on the floor with outstretched arms, it was reasonable and lawful for the

                                      20                                   A-1966-18
detective to ask defendant about the presence of weapons without first

administering Miranda warnings.


      Defendant further contends the trial court erred in admitting into evidence

testimony regarding items that were seized from residence at 1237 Thurman

Street pursuant to a search warrant that was sought and issued after defendant

was arrested. Specifically, State Police seized two additional guns and various

controlled dangerous substances. Defendant was not charged with possession

of those items.

      The trial judge first considered the admissibility of testimony concerning

those items at a pretrial N.J.R.E. 104 hearing. The State acknowledged that "on

their face,   [the other items seized from the residence] may be unfairly

prejudicial initially, but there are some circumstances which may be unforeseen

to the parties at this time, which might make kind of this expanded relevance

that would require them to be admitted at trial." At the State's request, the court

reserved ruling on the issue.

      During trial, defense counsel cross-examined Detective-Sergeant George

Wren, the State Police member who served as the evidence custodian for the

operation.    Detective-Sergeant Wren had prepared an investigative report

                                       21                                    A-1966-18
documenting the evidence that was seized in connection with the warrant that

authorized a search of the premises into which Bell and defendant fled. As we

have noted that warrant was issued after the officers had found the gun in

defendant's jacket pocket. In his role as evidence custodian for this operation,

Detective-Sergeant Wren was given the firearm seized from defendant's jacket

and entered it into the State Police evidence management system. The Detective-

Sergeant's written report, however, only referred to the evidence seized pursuant

to the search warrant. The report made no mention of the firearm and bullets

that had been seized from defendant's jacket.

      Defense counsel on cross-examination explored whether proper

procedures were followed in handling and storing the firearm that had been

seized from defendant. Counsel sought to ask the officer about the absence of

information about this firearm in his report. That prompted a sidebar discussion

at which the prosecutor argued that if counsel pursued that line of cross-

examination, the State should be allowed on re-direct examination to rehabilitate

the witness's credibility by posing questions about the contents of the report.

The judge agreed with the prosecutor and expressly advised defense counsel

that, "If you're going to question him about what's not in this report, then I'm

going to let [the State] question about what's in that report."

                                       22                                  A-1966-18
      Defense counsel proceeded to question the witness about the omission of

information pertaining to the weapon recovered from defendant's jacket and, in

accordance with the trial court's sidebar ruling, the State thereafter was allowed

on re-direct examination to elicit testimony concerning the firearm and drugs

that were found in the residence pursuant to the search warrant. The trial judge

provided a limiting instruction to the jury regarding this testimony. 8

      We agree with the trial court that defense counsel opened the door to the

contents of Detective-Sergeant Wren's report by challenging its completeness

and the witness' credibility and professional competence based on the omission

of information from that report. See State v. Prall,  231 N.J. 567, 582–83 (2018)

(explaining that the "opening the door" doctrine of expanded relevancy allows

a party "'to elicit otherwise inadmissible evidence when the opposing party has

made unfair prejudicial use of related evidence.'") (quoting State v. James,  144 N.J. 538, 554 (1996)). The doctrine is designed "'to prevent a defendant from

successfully excluding from the prosecution's case-in-chief inadmissible

   The limiting instruction was as follows: "Now you may recall during the
course of Detective Sergeant Wren's testimony you heard testimony regarding
the recovering and reporting of items other than the handgun that the defendant
is charged with possessing. As I instructed you, you may not consider those
other items when deliberating on the charges against [defendant], but you may
consider them only for credibility purposes when considering the testimony of
Detective [Sergeant] Wren."

                                       23                                   A-1966-18
evidence and then selectively introducing pieces of this evidence for the

defendant's own advantage, without allowing the prosecution to place the

evidence in its proper context.'" Id. at 583 (quoting James,  144 N.J. at 554).

      After reviewing the entire record, we conclude the trial judge did not

abuse his discretion in allowing the State to rehabilitate the evidence custodian

with evidence relating to the thoroughness with which he prepared the report

and complied with evidence handling procedures. It bears repeating that the

judge gave a limiting instruction to the jury explaining how it was to consider

this testimony. See State v. Herbert,  457 N.J. Super. 490, 503–04 (App. Div.

2019). In these circumstances, we do not believe the trial judge committed error,

much less reversible error, especially considering the strength of the State's

proofs that defendant knowingly possessed the firearm found in his jacket

pocket. See R. 2:10-2 ("Any error or omission shall be disregarded by the

appellate court unless it is of such nature as to have been clearly capable of

producing an unjust result . . . .").


      Defendant also contends the State violated his right to an impartial jury

by exercising peremptory challenges to remove potential jurors because of their

race. That discriminatory practice is strictly forbidden by Batson v. Kentucky

                                        24                                 A-1966-18
and State v. Gilmore. In Gilmore, our Supreme Court explained that if a

defendant makes a prima facie case of purposeful discrimination, "the State must

articulate 'clear and reasonably specific' explanations of its 'legitimate reasons'

for exercising each of the peremptory challenges."  103 N.J. at 537 (internal

citations omitted).

      At the conclusion of the voir dire process, defense counsel objected to the

State's use of peremptory challenges to remove two of the three African

Americans on the panel. Defense counsel made clear that he objected to the

removal of both minority jurors. The trial judge tacitly acknowledged that

defendant had made a prima facie case of discrimination, thus requiring the

prosecutor to offer a legitimate explanation.

      The prosecutor provided a reasonably specific explanation for his decision

to excuse one of the potential jurors, noting the juror was unable to recall the

circumstances of her prior service as a petit juror. The prosecutor appeared to

be poised to offer an explanation for peremptorily excusing the second minority

juror but was interrupted by the court. The following exchange occurred:

            Prosecutor: That's part of my rationale. I don't think
            that, even if it was mistaken, it's still not race based.
            That's not sufficient. If you need more, --

                                       25                                    A-1966-18
            The court: No. I'm satisfied that the state has provided
            at least a prima facie reasoning for [a] race neutral
            reason for striking . . .

            Prosecutor: I'll provide one more, Your Honor, to
            ensure the sufficiency of the defense . . . . My point here
            is the same.

            The court: Okay. I've already made my ruling.

      The hearing ended on that note. It is not clear to us why the judge

truncated the Batson/Gilmore hearing. Having tacitly ruled the defense met its

initial burden under the Batson/Gilmore burden-shifting paradigm, the court was

obligated to solicit and rule upon the prosecutor's reasons for challenging both

minority jurors at the heart of defendant's motion. We reiterate that the rule as

explained in Gilmore is that "the State must articulate 'clear and reasonably

specific' explanations of its 'legitimate reasons' for exercising each of the

peremptory challenges."  103 N.J. at 537 (emphasis added) (citations omitted).

      We cannot overstate the importance of adhering to the rule that prohibits

and deters the discriminatory use of peremptory juror challenges. We therefore

are constrained to remand for the trial court to complete the hearing, at which

the State must offer an explanation for its decision to challenge the second

minority juror. If the court on remand determines that the prosecutor has failed

to articulate a clear and reasonably specific explanation of its legitimate reasons

                                       26                                    A-1966-18
for challenging the second minority juror, the court shall vacate the convictions

and order a new trial.


      Finally, defendant contends the trial court imposed an excessive sentence.

This contention lacks sufficient merit to warrant extensive discussion. R. 2:11-

3(e)(2).   Our review of sentencing determinations is limited and highly

deferential. See State v. Pierce,  188 N.J. 155, 166–67 (2006); State v. Jarbath,

 114 N.J. 394, 401 (1989).

      The sentencing judge did not abuse his discretion in finding aggravating

factors three,  N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit

another offense"), six,  N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's

prior criminal record and the seriousness of the offenses of which he has been

convicted"), and nine,  N.J.S.A. 2C:44-1(a)(9) (The need for deterring the

defendant and others from violating the law"). Nor did the judge abuse his

discretion in finding that no mitigating factors apply.

      We note further that the court did not abuse its discretion in ordering that

the present sentence be served consecutively to the thirteen-year sentence

defendant is serving on his separate convictions for second-degree unlawful

possession of a weapon,  N.J.S.A. 2C:39-5(b)(1), second-degree certain persons

                                       27                                   A-1966-18
not to have a weapon,  N.J.S.A. 2C:39-7(b)(1), third-degree hindering,  N.J.S.A.

2C:29-3(b)(4), and fourth-degree resisting arrest, 2C:29-2(a)(2). See State v.

Yarbough,  100 N.J. 627 (1985);  N.J.S.A. 2C:44-5(a).            We add that the

sentencing court denied the State's motion for a discretionary extended term as

a persistent offender under  N.J.S.A. 2C:44-3(a), notwithstanding defendant's

extensive criminal history, which includes eleven convictions for indictable


      Accordingly, we conclude the judge dutifully followed the sentencing

guidelines established by the Legislature and the case law; made findings with

respect to the applicable aggravating and mitigating factors based on competent

credible evidence in the record; and ultimately imposed a sentence that was not

"clearly unreasonable so as to shock the judicial conscience." See State v. Liepe,

 239 N.J. 359, 371 (2019) (quoting State v. McGuire,  419 N.J. Super. 88, 158

(App. Div. 2011)).


      We remand for the sole purpose of requiring the court to complete the

Batson/Gilmore hearing in accordance with section V of this opinion. In all

other respects we affirm the conviction and sentence.         We do not retain


                                       28                                   A-1966-18
      Affirmed in part and remanded in part for further proceedings consistent

with this opinion.

                                     29                                 A-1966-18

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