December 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EARL L. SANDERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 03-07-1389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant Earl Sanders appeals from his conviction, following a jury trial, of third-degree theft of movable property, N.J.S.A. 2C:20-3(a), Count One; second-degree eluding, N.J.S.A. 2C:29-2(b), Counts Two and Three; simple assault, N.J.S.A. 2C:12-1(b)(5)(a), Counts Five and Six; and resisting arrest, 2C:29-2(a), Count Seven.*fn1 The State moved for imposition of a mandatory term pursuant to N.J.S.A. 2C:44-3(a) and/or 3(f). The court granted the State's motion and sentenced defendant to an aggregate twenty-year custodial term, with an eight-year period of parole ineligibility. We affirm.
Defendant raises the following points on appeal for our consideration:
POINT I A COURSE OF MISCONDUCT BY THE PROSECUTOR, DURING CROSS[-]EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10 (Partially Raised Below).
A. During Cross-Examination, The Prosecutor Challenged Mr. Sanders To Characterize The Veracity Of Officer Blake's Testimony.
B. The Prosecutor Made Improper Use [O]f Mr. Sanders' Prior Convictions.
C. The Prosecutor Led the Jury [T]o Believe That He Had Evidence of Mr. Sanders' Dishonesty That Was Outside [T]he Record.
THE JURY INSTRUCTIONS ON DIMINISHED CAPACITY AND INTOXICATION WERE FATALLY FLAWED. (Not Raised Below).
A. The Diminished Capacity Instruction Was Inadequate.
B. Defense Counsel's Request [T]o Charge Intoxication Should Have Been Denied. (Not Raised Below).
POINT III IT WAS ERROR NOT TO CHARGE JOYRIDING AS A LESSER[-]INCLUDED OFFENSE. (Not Raised Below).
POINT IV THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.
Defendant filed a pro se supplemental brief raising the following points for our consideration:
POINT ONE THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY TERMINATING DEFENDANT'S RIGHT TO SELF-REPRESENTATION, THEREBY DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND[.] [VI] AND [XIV], AND N.J. CONST. ART. 1, PAR. 10. POINT TWO DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING BOTH PRETRIAL AND TRIAL PROCEEDINGS[,] THEREBY DENYING DEFENDANT THE RIGHT TO A FAIR TRIAL, AND RESULTED IN A MANIFEST DENIAL OF JUSTICE. U.S. CONST. AMEND[.] [VI] AND [XIV,] AND N.J. CONST. ART. 1 PAR. 10. (Raised Below).
A. PRETRIAL ERRORS AND CONFLICT OF INTEREST. (Raised Below).
B. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL. (Raised Below).
According to the evidence presented at trial, the underlying incident that led to defendant's prosecution and conviction occurred on March 8, 2003, when he placed a 9-1-1 call to report that his family was dead and there were imposters posing as his family in his house. The following day, March 9, an officer picked defendant up on a street curb and defendant was admitted to the Crisis Center (Center) of Jersey Shore Medical Center at 2:55 a.m. The hospital record revealed that he was wild and agitated and was hallucinating for a number of hours after his admission. He remained hospitalized for observation and was discharged the next day around 8:15 a.m.
As defendant was leaving the hospital grounds, he entered a medical transportation vehicle that was parked nearby with its engine running, and proceeded to drive away. The vehicle was reported stolen approximately fifteen minutes later. Asbury Park Patrolman Dennis Blake spotted the vehicle an hour later and attempted to pull it over. Defendant testified that when he saw the police vehicle with its overhead lights activated signaling him to pull over, he became scared and took off with the intent to "drive up Asbury Park Avenue and go directly to the police station but due to the traffic it wasn't allowed[.] I couldn't do it." Defendant was able to speed away from Blake and other police vehicles that had joined the pursuit and, in doing so, ran two stop signs, five red lights, drove in the direction of approaching traffic, causing those motorists to veer away in an effort to avoid a collision, drove onto a resident's front lawn, and struck two civilian vehicles. Defendant eventually entered onto Route 35 where he continued to lead police on a chase. While on Route 35, he rammed a police car.
Police were eventually able to block the vehicle defendant was driving, but this was only after defendant drove his vehicle in the direction of Neptune Township Detective Brian Fromhold, who had exited his car and approached defendant. Fromhold discharged his weapon after defendant failed to heed his yell to defendant to stop the vehicle. When other officers enclosed the vehicle, causing its tires to become lodged against a tree, the vehicle remained stationary. It took six officers to remove defendant from the vehicle, as defendant resisted their efforts. He was subdued and placed under arrest.
Defendant contends that when the prosecutor asked him to explain the contradiction between his testimony that he was driving the vehicle towards the police station and Officer Blake's testimony that he, at one point in the pursuit, drove away from the police station, the State was improperly requesting that he characterize Officer Blake's testimony. Additionally, defendant urges that the State improperly inquired into plea negotiations in connection with unrelated charges that were still pending against him at the time of trial and the potential sentence he could receive on those charges as a motive for his flight. Finally, defendant contends that when he repeatedly expressed his understanding that the plea negotiations on the unrelated charges did not involve imposition of a custodial term, he negated the State's theory that his flight was motivated out of fear of incarceration. The prosecutor, however, through rhetorical questioning and direct statements to him, suggested that he personally knew defendant was being untruthful about the plea negotiations. These direct statements from the prosecutor to defendant relating to the plea negotiations included: "You know that is not true. You were going to State Prison. . . . Three years New Jersey State Prison. . . . That wasn't something I said, sir? . . . Did I ever say that, sir? Did you hear those words from my mouth?"
We first address the issue of the prosecutor's statements. A "prosecutor's duty is twofold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J. 158, 177 (2001) (citing State v. Ramseur, 106 N.J. 123, 320 (1987)). In deciding whether there has been prosecutorial misconduct, a court must perform a two-prong test to determine "whether the prosecutor committed misconduct, and, if so, 'whether the prosecutor's conduct constitutes grounds for a new trial.'" State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008) (quoting Smith, supra, 167 N.J. at 181).
A court will not reverse on grounds of prosecutorial misconduct absent evidence of "'misconduct [that] was so egregious that it deprived the defendant of a fair trial.'" State v. Koskovich, 168 N.J. 448, 488 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Prosecutorial misconduct warrants reversal only if the appellate court finds that the misconduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001) (internal quotation marks omitted)).
A. Prosecutor's Questions Related to Officer Blake's Testimony We initially observe that there was no objection to the prosecutor's questions to defendant related to Blake's testimony. Thus, we review defendant's claimed error under the plain error standard of review, namely, if there was error in this line of questioning, was it "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
The specific questioning about which defendant complains is as follows:
Q: Do you recall the Asbury Park [p]olice officer who testified here who said he was following you? He indicated that you had at least one or more opportunities to go to the Asbury Park Police Department and you didn't? Do you recall that testimony?
A: I recall him saying that, sir.
Q: Do you disagree with that, sir?
Q: You do disagree with that?
A: Yes, I disagree with that.
Q: So at any particular point you were trying to go towards the Asbury Park Police Department. Is that a yes or no answer, sir?
A: I went up Asbury Avenue, yes.
Q: Heading towards the police department?
A: Yes, that is why I was going up Asbury Avenue, Asbury and Memorial Drive. You go three more blocks. That is the police department.
We discern no error in this line of questioning, which is clearly distinguishable from those cases where the prosecutor's questioning improperly attempted to elicit the defendants' opinions as to the veracity of the testifying witnesses. See State v. Bunch, 180 N.J. 534, 549 (2004); see also State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).
B. Prosecutor's Questions Related to 2002 Plea Negotiations
We agree that the prosecutor's rhetorical questioning of defendant about the terms of the 2002 plea negotiations on the pending charges and whether the agreement called for a custodial term, exceeded the bounds of permissible cross-examination. Defense counsel only objected to the prosecutor's accusation that defendant was lying. Although the court sustained the objection, no curative instruction was sought nor sua sponte delivered by the court. Despite the impropriety of the prosecutor's line of questioning, the questioning did not substantially deprive defendant of a fair trial. The evidence presented against defendant was overwhelming. As such, the prosecutor's conduct in this regard did not have the capacity to cause an unjust result. See Timmendequas, supra, 161 N.J. at 574-75.
A. Jury Instruction on Diminished Capacity
Also raised for the first time on appeal is defendant's contention that the jury instructions on diminished capacity and intoxication were flawed because the court gave the jury a lunch break before completing the entire jury instruction; thus, the charge was confusing. The court specifically asked whether there was an objection to adjourning for lunch. The court explained that it had already spent more than an hour charging the jury and had "already past the lunch hour and it is very hot in here." Defense counsel responded that he agreed with the court and had no objection to the recess. We find defendant's objection, now raised for the first time on appeal, without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant next contends the court failed to properly explain how the defense of diminished capacity related to the elements of "knowing" and "purposeful" conduct the State was required to prove in connection with the eluding offense. We disagree. The court made clear that the jury was required to consider, as to each crime charged, whether the State proved beyond a reasonable doubt that defendant acted knowingly or purposely in view of the evidence presented as to his mental state:
Now[,] ladies and gentlemen, evidence alleging that [defendant] suffered from a mental disease or defect has been produced. You must consider all of the evidence of [defendant's] mental state including the evidence that was presented on mental disease or defect in determining whether the State has proven beyond a reasonable doubt that [defendant] acted knowingly or purposely in committing the crimes that had that state of mind for an element.
I have gone through them, ladies and gentlemen, but I'll tell you again. Count one, theft, the eluding which is count two and three and its lesser included. The attempted murder, the aggravat[ed] assault by serious bodily injury element requiring proof of knowledge and purpose. It also had an element of acting recklessly, manifesting extreme indifference to the value of human life which is different from purpose or knowledge.
We therefore find no error in the manner in which the trial court charged the jury on diminished capacity.
B. Intoxication Instruction
Next, defendant claims that the court should have denied his request to charge intoxication because the request was improper and because the evidence did not support such a charge. He argues that while his capacity was diminished by his use of cocaine, diminished capacity and intoxication differ in important respects. He argues that the mere fact that he ingested cocaine was not sufficient to warrant the intoxication instruction. Defendant further contends that the intoxication instruction had the capacity to mislead the jury because of the inadequacy of the diminished capacity charge.
It is clear that "intoxication of the actor is not a defense unless it negatives an element of the offense."
N.J.S.A. 2C:2-8. A trial court may charge the jury with intoxication if it finds that a rational basis exists for the conclusion that the defendant's faculties were so "prostrate" that he was not capable of forming an intent to commit a crime. State v. Mauricio, 117 N.J. 402, 418-19 (1990).
"Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974), certif. denied, 65 N.J. 574 (1974). The only exception is when the errors are of such magnitude "that they trench directly upon the proper discharge of the judicial function." State v. Simon, 79 N.J. 191, 205 (1979) (quoting State v Harper, supra, 128 N.J. Super. at 278). "The question is whether the particular error 'cut mortally into the substantive rights of the defendant.'" State v. Van Syoc, 235 N.J. Super. 463, 466 (Law Div. 1988), aff'd, 235 N.J. Super. 409 (App. Div. 1989) (citing State v. Harper, supra, 128 N.J. Super. at 277 (App. Div. 1974), certif. denied, 65 N.J. 574 (1974)). "Ordinarily, where the action complained of after the fact was reasonably thought to secure a trial or tactical advantage for the defendant it is not so egregious as to mandate a reversal on appeal." Ibid.
Defense counsel requested the intoxication charge and the request was granted without objection from the State. Because the instruction was "induced, encouraged and acquiesced in and consented to by defense counsel," it is not a basis for reversal. Harper, supra, 128 N.J. Super. at 277. Further, there is no evidence that the instruction created any error, much less any error of such magnitude that it trenched "directly upon the proper discharge of" judicial function. Bishop, supra, 187 N.J. Super. at 194 (citing State v. Simon, 79 N.J. 191, 205 (1979) (citations omitted).
The State suggests that the request for an intoxication charge may have been a strategic choice the defense made to secure a tactical advantage for defendant, as the defense may have believed that defendant had a better chance of being acquitted if he had two defenses (diminished capacity and intoxication) rather than just one. Assuming the request was a strategic choice, resolution on direct appeal is inappropriate since trial strategy involves consideration of facts outside of the record on appeal and is more appropriately the subject of a post-conviction relief application. R. 3:22-2.
Defendant contends the trial court erred by not charging joyriding as a lesser-included offense of theft. He argues that the jury could have found that he "intended to temporarily, rather than permanently or substantially, deprive the owner of his vehicle." He urges that third-degree joyriding, as defined in N.J.S.A. 2C:20-10(c), is a lesser-included offense of theft and eluding, and thus he could have been acquitted of theft and eluding for failure to prove some of the elements, while being convicted of third-degree joyriding. Defendant concedes that no joyriding instruction was requested but urges that the court's failure, sua sponte, to charge joyriding constituted plain error. R. 2:10-2.
A court should charge the jury with a lesser-included offense if the evidence presented at trial would allow the jury to find the defendant guilty of the lesser-included offense and not guilty of the greater offense. State v. Brent, 137 N.J. 107, 117 (1999). The Court has held that "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004).
N.J.S.A. 2C:1-8 provides:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8(d).]
A person commits third-degree joyriding if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent and operates the motor vehicle in a manner that creates a risk of injury to any person or a risk of damage to property. [N.J.S.A. 2C:20-10.]
Defendant did not request a charge of joyriding as a lesser-included offense of theft or eluding. As defendant suggests, joyriding requires a lesser kind of culpability than theft in that it only requires that the defendant intend to temporarily, rather then permanently, deprive the owner of the property. However, third-degree joyriding requires the State to prove that there was a risk of injury or a risk of damage to the property, an element not required to prove theft. State v. Roberson, 356 N.J. Super. 332, 339-40 (Law Div. 2002) (third-degree joyriding cannot be considered a lesser-included offense of theft because it involves additional proofs relating to a greater risk of harm arising not from the taking of the vehicle but, rather, its method of operation.) Therefore, the trial court did not err when it failed to charge joyriding as a lesser-included offense of theft sua sponte.
Defendant contends the sentence imposed by the court is inappropriate because the record does not support the imposition of consecutive sentences. He contends that the court failed to give an adequate reason for imposing consecutive sentences. Specifically, he contends that the sentence imposed on the second-degree eluding should have run concurrent with the sentence imposed on the third-degree theft of movable property, and all the other counts. He asserts that the court should have imposed concurrent sentences because the court "overlooked the similarities in the objectives of the theft and eluding statutes," and that although technically the crimes are separate offenses, they constituted "a single episode of irrational and aberrant behavior." He contends that the technical completion of one offense before the onset of another does not make those crimes predominantly independent of one another or render them separate and unrelated transactions.
The State argues in response that defendant's sentence was reasonable and appropriate. It contends that the imposition of consecutive sentences was justified by the record and "constituted a sound exercise of discretion." The State points to the fact that the offenses were committed against different victims. It also contends that the Legislature sought to accomplish different objectives with the criminalization of these two statutes.
"The imposition of an appropriate sentence is entrusted to the sound discretion of the sentencing judge. Thus, the scope of appellate review is normally limited to the question of whether that discretion has been abused by the imposition of a sentence which is manifestly excessive under the particular circumstances of the case." State v. Leggeadrini, 75 N.J. 150, 156-57 (1977) (citations omitted). Generally, as a reviewing court, we will not reverse a sentence that is within the statutory limits in the absence of a clear showing of an abuse of discretion. State v. Tyson, 43 N.J. 411, 417 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed. 279 (1965) (citing State v. Benes, 16 N.J. 389, 396 (1954)).
Here, the trial court imposed a five-year sentence, with two years of parole ineligibility, on Count One, the theft conviction. On the eluding conviction, Count Two, the court imposed a fifteen-year sentence with six years of parole ineligibility, to run consecutive to the sentence imposed on the theft count. For Count Three, eluding, a ten-year sentence with four years of parole ineligibility was imposed to be served concurrent to Counts One, Two, Five, Six and Seven. The court then imposed a six-month custodial term, each, for Counts Five, Six and Seven, to run concurrent with each other and with the other sentences.
In deciding whether to impose a consecutive sentence, the trial court must consider the following factors:
(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; [and]
(e) the convictions for which sentences are to be imposed are numerous.
[State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L.Ed. 2d 308 (1986).]
In State v. Streater, 233 N.J. Super. 537, 546 (App. Div.), certif. denied, 117 N.J. 667 (1989), we found that the trial court erred by imposing consecutive sentences for the defendant's conviction for bringing stolen property into New Jersey and conviction for conspiracy to bring stolen property into New Jersey because the "offense of bringing stolen property into New Jersey was one of the overt acts committed in furtherance of the conspiracy." Likewise, in State v. Copling, 326 N.J. Super. 417, 442 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), we held that because the ultimate objective of the possession of a weapon statute and the homicide statute is the same, to protect members of society from being injured or killed, the trial court erred in imposing consecutive sentences for the two charges.
The Yarbough factors should be "applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). Further, the Supreme Court requires the trial court to separately state on the record the reasons for imposing consecutive sentences. State v. Miller, 108 N.J. 112, 122 (1987).
Here, the court explained during sentencing:
I've reviewed the presentence report and what has been submitted by the defense, the motion that I've ruled on by the State. I've considered the comments of counsel and the extensive comments by [defendant] today. I do not find any mitigating factors. I considered mitigating factors three and four in light of Dr. Greenfield's*fn2 report. It's in the presentence investigation and also his testimony at trial.
But I note that the defendant stole the vehicle at the hospital to go to Asbury Park so he could get high. I find that during the entire eluding episode which occurred in Asbury Park, in Neptune, in Ocean Township, and went into Tinton Falls and I believe it crossed even into the border of Eatontown, then returned to Ocean Township.
The videos displayed the defendant driving on a congested Highway 35. He was also driving on residential streets where he threatened the safety of numerous other drivers.
He appeared to the Court to be acting in a manner that showed his intention to flee the police. I believe that he knew that the police were trying to stop him and that he willfully decided to do everything that he could including at one point ramming the vehicle of a civilian on Highway 35. He intended to do everything he could to insure that he was not caught that day, that he wanted to do crack cocaine.
Today is your judgment day, [defendant]. On count one of your indictment, your sentence is five years New Jersey State Prison with a two[-]year period of parole ineligibility. This sentence will run consecutive to the sentence that the Court intends to impose on count two. And I note that the stolen vehicle occurred at the hospital prior to driving to Asbury Park where [defendant] used crack cocaine and where the eluding and the remainder of the events he was convicted of began. [Emphasis added.]
Based upon the proofs presented, it is reasonable to infer defendant's objective in taking the medical transportation vehicle was to get away from the Center and to obtain cocaine to ingest, while his purpose in eluding the police was to avoid apprehension. Therefore, defendant's crimes of theft and eluding were committed for different objectives and independent of each other. Yarbough, supra, 100 N.J. at 644. Whereas the crime of theft was committed when defendant took the vehicle without permission from the Center, the crime of eluding did not begin until later, when defendant witnessed Officer Blake activate his light, signaling him to stop, and he failed to do so. Ibid. In addition, while the victim of the theft of the vehicle was its lawful owner, the Center, the victims of the crime of eluding were the officers who attempted to stop defendant and the civilians who were exposed to danger from the pursuit. Ibid.
We are satisfied the trial court did not abuse its discretion by imposing consecutive sentences for the theft and the eluding convictions. Tyson, supra, 43 N.J. at 417.
Finally, defendant filed, pro se, a supplemental brief claiming the trial court committed reversible error by terminating his right to self-representation and also that he was denied effective assistance of counsel. Our review of the record convinces us that as to termination of his self-representation, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the decision to terminate a defendant's self-representation involves an exercise of a trial court's discretion and will not be disturbed on appeal in the absence of a showing that the trial court's exercise of that discretion constituted a clear error in judgment. State v. Wakefield, 190 N.J. 397, 491 (2007). We discern no such error from the present record, particularly in view of the evidence in the record that reflects defendant's inability or unwillingness to follow the rules of criminal procedure and evidence, both pretrial and at trial.
Finally, as to defendant's claims of ineffective assistance of counsel, for the most part, the issues raised by defendant are matters that are more appropriate subjects for post-conviction relief proceedings because they implicate matters outside of the record. State v. Preciose, 129 N.J. 451, 460 (1992). As to defendant's remaining contentions related to the Greenfield report, he advised the court on the record that Dr. Greenfield would be the defense expert, once he realized the report could not be viewed by the jury:
THE COURT: All right. Well, who is your expert? Who do you intend to use?
THE DEFENDANT: We will use Dr. Greenfield, Your Honor.
. . . . [THE DEFENDANT]: I've looked at Dr. Greenfield's report and like I was speaking to [defense counsel] just outside of the court, Your Honor, there's contents in Dr. Greenfield's report that are totally not true.
THE COURT: But this is your expert report.
[THE DEFENDANT]: Right. I'm not saying, right now, me and [defense counsel] were discussing saying not to get another report because he just explained and advised me that the report itself, because it's inflammatory or because of the content of it, it does not go into the jury.
To the extent defendant alleges otherwise, assuming a prima facie case of ineffective assistance of counsel is established, resolution of this contention must be resolved in a hearing where credibility may be assessed. State v. Pyatt, 316 N.J. Super. 46 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).