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State v. Vargas


August 16, 2010


On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-01-0018.

Per curiam.


Submitted April 13, 2010

Before Judges Carchman and Lihotz.

Following a jury trial, defendant Jorge Vargas was convicted of fourth-degree aggravated assault and resisting arrest and was sentenced to fourteen months incarceration. On appeal, defendant argues:














Initially, we note defendant was released from custody on September 29, 2007. Neither party reported that development to this court. Our information is derived from an internet posting by the New Jersey Department of Corrections. Based on this fact, the arguments presented in Point V are moot. Following our review of the remaining arguments, in light of the record and applicable legal standards, we affirm defendant's conviction.

On October 4, 2005, uniformed Bridgeton Police Officer Jeffrey Parvin, while on foot patrol in the Maplewood Garden Housing Complex with his partner Brian McGuigan, heard a two-stroke dirt bike being operated with the throttle open. To Parvin, it sounded as if the bike operator was "revving the engine," suggesting he intended to run at a high rate of speed. Young children were in the area, so police exited the building toward the sound, approaching the area from different directions.

Parvin saw the dirt bike enter the complex, "doing wheelies, and just driving very recklessly, high speeds, low speeds[.]" Parvin described the rider as "showboating." He noted the operator wore a white, long-sleeved shirt, blue pants and a helmet with a mouth guard that was open around his eyes and nose. The helmet did not have a face shield, giving Parvin a partial view of the driver's face. Parvin noted the driver's distinctive shoulder-length braids that hung below his helmet. Although Parvin could not readily identify the driver, he "had a[n] idea that it was a Vargas." Over the four years Parvin had been employed by the Bridgeton Police, he had encountered the Vargas brothers who lived in the community. Parvin was aware the Vargases rode dirt bikes and had similar hair styles.

To stop the dirt bike, Parvin stepped into the middle of the roadway, put his hands up and told the rider of the bike to stop. The driver continued toward him then, when he was within five feet of the officer, made a hard right turn. After making the turn, the driver "attempt[ed] to turn back around, [but] he hit a curb that runs along Birch Street, a sidewalk, and then a fence line." As a result, the bike's operator was "pinned against the fence."

Parvin attempted to grab him, but his efforts were impeded by the bike's front tire. A struggle ensued between Parvin and the dirt bike operator, who attempted to get back on the vehicle. Parvin used his pepper spray, but the driver turned his head so a "majority of the pepper spray" bounced off his helmet and into Parvin's face. As a result, Parvin's left eye was strongly affected, and the rider hopped on the bike and drove away. The bike's back tire kicked into Parvin's left leg and right ankle, causing pain.

McGuigan arrived on the scene and yelled for the driver to stop, but the driver continued traveling at a high rate of speed. Parvin radioed for assistance and provided a description of the bike's driver, including what he was wearing and his belief that he was "one of the Vargas boys."

Bridgeton Police Sergeant Michael Pastirko responded to Parvin's radio call. Within two minutes of arriving at the Maplewood Garden Housing Complex, Pastirko spotted a dirt bike driver matching Parvin's description and three to four police officers attempted to stop him. Pastirko exited his vehicle and told the driver to stop. Instead of stopping, the driver again headed straight toward the officer, "turned the bike sideways and went between the police cars and got away[.]" Pastirko was within ten feet of the driver with nothing obstructing his view. He was able to see the driver's face, including his "pretty distinctive nose," his eyes and some hair coming out the back of his helmet. Based on his four to five second observation, Pastirko recognized the rider as defendant, testifying he was "100-percent" certain, as he knew defendant for "pretty much" all of his ten-year career. Following this encounter, Pastirko radioed to other officers that the rider was Jorge "Pasuel" Vargas.

An indictment issued charging defendant with fourth degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count I), and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count II). A jury trial was held, and defendant moved for acquittal at the conclusion the State's case, R. 3:18-1, which the judge denied. Following his conviction, defendant moved for a new trial or judgment notwithstanding the verdict. That motion was also denied. Thereafter, sentence was imposed. We examine defendant's challenges to his conviction.

Defendant first argues the court erred in admitting "other bad acts" evidence, prejudicing his right to a fair trial. Identifying Parvin's testimony regarding prior contact with the Vargas brothers, defendant contends the officer "improperly injected propensity evidence into the trial and corrupted the jury's deliberations."

Prior to trial, defendant sought to limit any testimony that he was known to police as a result of prior arrests. During trial, defendant cites this colloquy as violating N.J.R.E. 404(b):

[Defense counsel]. [H]ad you ever had occasion to come into contact with any one of the Jorge Vargas brothers?

[Officer Parvin]. Yes, sir.

Q: Okay. And, can you please tell the jury what your understanding is of who they are, the names, anything else you know about them? As far as identifying information.

A: There is Jorge L. Vargas, but his middle initial is L. If I'm not mistaken, 1980 is his date of birth. There is a Jorge A. Vargas, who goes by Pasuel, with a 1982 date of birth. And, there's a Jorge A. Vargas, who goes by Bay-Bay, with a 1983 date of birth.

Q: Okay. Do you recall about -- in t[er]ms of your time with the department --prior to this incident, about the four years, how often have you had contact with them going back to the beginning of your --your time at the department?

A: Within cases, I've had only one contact with them, I believe one time.

Q: Okay. How about your function in community police? You're on patrol; right?

A: Correct, sir.

Q: Okay. And you're out and about, you're in the neighborhood; . . . can you describe for the jury the kind of interaction that you've had with any of the Jorge Vargas boys?

A: [T]heir address is just north of . . . one of the developments, Maplewood Gardens, that I patrol, so --

Q: Okay. And, what address is that?

A: [.] Southeast Avenue.

Q: Okay. Have you ever seen them at their house?

A: Yes, sir.

Q: Okay. Have you ever seen them out and about?

A: Yes, sir.

Q: Have you ever talked to them?

A: Briefly, sir.

Q: Okay. You've been close up with them?

A: Yes, sir.

Q: Okay. And they've talked to you?

A: Yes, sir.

Q: Okay. Have you seen them out -- again, out in the complex?

A: Not so much in the complex, sir, but in passing. On the way to and from the complex.

At trial, no objection was made when Parvin uttered these statements. Therefore, the court was not requested to provide a limiting instruction.

We give "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). A trial judge's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. State v. Kemp, 195 N.J. 136, 149 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)); see also Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2010).

In our review, we first determine whether error occurred and, if so, whether it was "clearly capable of producing an unjust result[.]" R. 2:10-2. To warrant reversal, the error 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[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)); see also State v. Miraballes, 392 N.J. Super. 342, 360-61 (App. Div.), certif. denied, 192 N.J. 75 (2007).

Pursuant to N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, the evidence may be used for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

In this matter, defendant focuses on Parvin's statement that, "within cases," he had "one contact" with the Vargases. Defendant argues the comment violates the protections of N.J.R.E. 404(b) because the jury could imply defendant was known to the police because of prior criminal involvement. After considering Parvin's statement in the context of his entire testimony, we reject this argument. See State v. Wakefield, 190 N.J. 397, 467 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); State v. Harris, 181 N.J. 391, 496 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).

Parvin's statements describe how he was able to narrow the identity of the dirt bike driver, knowing that his job as a patrol officer gave him familiarity with members of the local community. Parvin never stated defendant had been involved in criminal activity or prior bad acts, but mentioned that, within the context of a prior investigation, he had one contact with the Vargas brothers, collectively. Parvin did not delineate which of the brothers was involved or the nature of their involvement. Their role could have been many things, including witnesses to an event.

We conclude the single comment made in the course of the officer's direct testimony does not imply defendant had engaged in prior bad acts. See State v. Love, 245 N.J. Super. 195, 197-98 (App. Div.) (concluding N.J.R.E. 55, the predecessor to N.J.R.E. 404(b), was inapplicable when an investigator testified on cross-examination that he previously interviewed the defendant in a homicide investigation), certif. denied, 126 N.J. 321 (1991). The comment was fleeting, especially in light of the additional evidence of defendant's guilt presented in the course of the three-day trial. See State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985).

Moreover, defendant's failure to contemporaneously object to Parvin's testimony creates a fair inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quotation omitted). Following our review, we discern no error.

At the close of the State's case, defendant moved for acquittal, pursuant to Rule 3:18-1. Given Parvin's inability to identify defendant and Pastirko's "flimsy" identification, which "lacked credibility," defendant asserts the State failed to prove beyond a reasonable doubt that he was the dirt bike driver. Thus, the court's denial of his motion was erroneous.

"We apply the same standard as the trial court in reviewing its denial of a motion for acquittal." State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003); Pressler, supra, comment 3.2.6 on R. 2:10-2. We determine "'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

Defendant's arguments challenge the credibility of the police witnesses, which is immaterial when reviewing a motion for acquittal. When reviewing "such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

Viewing the evidence most favorably to the State, ibid., we conclude the court properly rejected this request as, together, the testimony of Parvin and Pastirko was sufficient to identify defendant as the dirt bike driver. Both officers viewed the driver's face and made note of his distinguishing features, including his nose and hair length and style. Parvin recognized the driver as one of the Vargas brothers and Pastirko immediately knew it was defendant. The court properly denied the motion and allowed the jury to assess the evidence, including each witness's credibility.

In a related challenge, defendant sought acquittal on the charge of resisting arrest maintaining insufficient proof was presented to support the offense. Specifically, defendant asserts Parvin never properly informed him he was under arrest. In support of this argument, defendant relies on State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). Defendant's contention is unavailing and lacks sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(2). We add these brief comments.

In Kane, this court determined the State failed to prove one of the conditions for conviction of resisting an unlawful arrest. N.J.S.A. 2C:29-2a provides: "It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance."

Here, there is no challenge to validity of Parvin's attempted arrest of defendant, making the statute inapplicable. The evidence in this case, viewed most favorably to the State, sufficiently supports each element of the charges. Parvin was wearing his uniform when he commanded the dirt bike driver to stop. Pastirko exited his vehicle and told the defendant to stop, as did other officers, and defendant drove straight at the police, only veering off at the last minute.

Defendant next asserts improper remarks by the prosecutor during summation denied him a fair trial. He seeks reversal of his conviction. Our review is guided by the following standards.

Summations, like jury instructions, must be read as a whole. See Morton, supra, 155 N.J. at 416; State v. Wilbely, 63 N.J. 420, 422 (1973). They cannot be evaluated in isolation because the State is permitted to respond to allegations made by defense counsel. State v. Darrian, 255 N.J. Super. 435, 454-55 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Engel, 249 N.J. Super. 336, 379-80 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed, prosecutors . . . are expected to make vigorous and forceful closing arguments[.]" State v. Frost, 158 N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). To that end, prosecutors may not "make inaccurate legal or factual assertions" and must "confine their comments to evidence revealed during the trial and reasonable inferences" drawn from that evidence. Smith, supra, 167 N.J. at 178.

In pursuing this inquiry, we "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991). While the prosecutor may make remarks constituting legitimate inferences from record facts, State v. Perry, 65 N.J. 45, 48 (1974), he or she may not go beyond the evidence presented to the jury, State v. Farrell, 61 N.J. 99, 103 (1972), nor launch an unfair attack on defense counsel. State v. Sherman, 230 N.J. Super. 10, 15-19 (App. Div. 1988).

Upon finding the prosecutor committed misconduct, we "evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial" to decide whether a new trial is warranted. Wakefield, supra, 190 N.J. at 437 (internal quotation omitted); see also Smith, supra, 167 N.J. at 181. We will reverse a conviction and order a new trial if we find the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The Court in Smith, supra, explained that to rise to the level of plain or reversible error and to warrant a new trial[,] the prosecutor's conduct must have been "'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999). In determining whether a prosecutor's actions were sufficiently egregious to warrant the reversal of a conviction, a reviewing court should take into account:

(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [167 N.J. at 181-82.]

"Generally, if counsel did not object [to the remarks], the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). We first determine whether the remark was made in error or was prejudicial, and if so, whether the comment was "clearly capable of producing an unjust result." R. 2:10-2. See State v. Feal, 194 N.J. 293, 312 (2008); State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). This arises when the error was "sufficient [to raise] a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." Feal, supra, 194 N.J. at 312 (quotations and internal citations omitted).

Defendant identifies three prejudicial statements in his argument. We examine the remarks to provide proper context.

First, when discussing its satisfaction of each element of the offenses, the prosecutor stated:

Now, harping back to what [defendant's counsel] has said, "Hey, this case is about ID. That's about it." Take a look at all this other stuff, besides the ID, I submit you've heard testimony with no conflict that this happened, that these elements are proven. And, that's all that a reasonable doubt goes to.

Defendant suggests this remark "urged the jury to infer that [defendant] had a burden to offer such evidence, and his failure to do so, was itself, evidence of his guilt." We disagree.

"'Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated.'" State v. Jones, 364 N.J. Super. 376, 383 (App. Div. 2003) (quoting State v. Sinclair, 49 N.J. 525, 549 (1967)); see also State v. Black, 380 N.J. Super. 581, 595 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). However, a defendant's failure to object to the prosecutor's comment is indicative of a lack of prejudice. See State v. Loftin, 287 N.J. Super. 76, 101 (App. Div.), certif. denied, 144 N.J. 175 (1996). Here, reviewing the statement in the context of the State's entire summation and in light of defendant's closing remarks, we conclude there was no impropriety. See Darrian, supra, 255 N.J. Super. at 454-55.

The prosecutor's statement characterized the evidence in the context of the defense's challenge to the accuracy of the identification testimony. The statement, that there was "no conflict that this happened," was a reference to defendant's acknowledgment of the underlying facts of this case, which he did not challenge. The defense strategy attacked only the identity of the bike rider.

Further, we note the defense's closing included these assertions:

So, here we have a situation where we have this wild person on this motorbike riding through a neighborhood. Police tried to stop him, and they . . . can't. He actually got away. But we have the first police officer, Officer Parvin, who testified yesterday, who was candid with you, and said, "I didn't know who he was that day.["] "Thought it was a Vargas; they look alike; I don't know which one it was. He had long braids. And, that's the way I identified him[,] as a Vargas. I couldn't see his face. All I could see was the bridge of his nose and his eyes from about five feet away. . . . "

But, he didn't testify that they were the only people in the neighborhood that have long braids. He wasn't asked that question. So, you won't know from this point whether or not there are other people that he might observe that have long braids in their hair in that neighborhood.

Overall, the State's remark was confined to the trial evidence and represented a fair response, invited by this vigorous defense summation. State v. R.B., 183 N.J. 308, 329 (2005); State v. Hill, 365 N.J. Super. 463, 469 (App. Div. 2004), rev'd on other grounds, 182 N.J. 532 (2005). We conclude defendant's right to remain silent was not implicated, and the statement did not suggest defendant carried a burden of offering an affirmative defense. Cf. Josephs, supra, 174 N.J. at 126 (holding a prosecutor's reference to a witness's "uncontradicted" testimony and the State's proof of the aggravating factors as "based on objective testimony and . . . rooted in uncontradicted, irrefutable facts and evidence" did not allude to the defendant's decision not to testify and did not result in unfair prejudice).

Defendant next argues the prosecutor misstated the law in violation of defendant's presumption of innocence. The prosecutor said:

One final thing, ladies and gentlemen, again, . . . [defendant's counsel] is correct. At the beginning of this trial this defendant stood before you in a shroud, a presumption of innocence. It's like a cloak. Every defendant is guaranteed that right. You come to trial, you get in a case, you are presumed innocent. The Judge is going to instruct you on that.

But, one of the things [defendant's counsel] did not tell you about the presumption of innocence is that it can be rebutted, it can be taken away, it can be removed. How is it removed? It's removed by credible evidence, consistent testimony presented to you, the finder of facts, that removes that cloak, removes that presumption.

I submit now, ladies and gentlemen, he has had his trial. He has had his trial. And, he stands before you now without that cloak, without that presumption.

Defense counsel objected, and this corrective instruction was included in the jury charge, given the same day:

[T]he prosecutor, in his closing argument, made reference to the defendant -- the presumption of innocen[ce] with respect to the defendant, with that with which he was shrouded or cloaked with being removed at the time of his closing. That's not correct. Actually, the defendant is entitled to the presumption of innocence until such time as you collectively agree that the State has met its burden of proof and proved the defendant's guilt beyond a reasonable doubt.

I just wanted to bring that out to you because it was a statement which I feel is somewhat incorrect, and that, as I said, anything the attorneys tell you as what the law may be, must be disregarded by you if it's in conflict with my charge.

The presumption of innocence is a bedrock principle that requires a criminal defendant be presumed innocent until proven guilty beyond a reasonable doubt. State v. Hill, 199 N.J. 545, 558-59 (2009). This presumption continues until the jury returns a guilty verdict. State v. Daniels, 182 N.J. 80, 92 (2004). "[T]he presumption of innocence and the State's beyond-a-reasonable-doubt proof requirement work hand-in-hand to protect an accused and force the State to satisfy the proof requirements for a conviction." Hill, supra, 199 N.J. at 559.

In this matter, the prosecutor's attempt at literary license, suggesting the "cloak of innocence" had been removed, impermissibly misstated the law. Standing alone, the statement is error. However, the court properly acted to remove any prejudicial impact, making the comment harmless. Wakefield, supra, 190 N.J. at 440; R.B., supra, 183 N.J. at 329.

Fulfilling his obligation to correct the misstatement of law by the prosecutor, see State v. Velasquez, 391 N.J. Super. 291, 314 (App. Div. 2007), Judge Waters's admonishment properly instructed the jury to disregard the State's comment and reinforced the correct standard governing its deliberation of defendant's innocence or guilt. Further, the judge gave the jury the general instruction that the attorneys' comments should be ignored if they conflicted with the court's instructions. Such an instruction may cure errors made by the prosecutor, and we presume juries follow the judge's directions. State v. Manley, 54 N.J. 259, 270-71 (1969). Consequently, no substantial prejudice resulted to impact "'defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Smith, supra, 167 N.J. at 182 (quoting Timmendequas, supra, 161 N.J. at 575). As the outcome of defendant's trial was not adversely affected, no new trial is warranted. Wakefield, supra, 190 N.J. at 437.

Finally, defendant asserts that the prosecutor committed prejudicial error by misstating the elements of resisting arrest, N.J.S.A. 2C:29-2a(2), when he said:

Now, element number three. The defendant knew, or had reason to know, that Officer Parvin, at the time, was a law enforcement officer. Well, when you're looking right at someone who is wearing a policeman's uniform and giving you a command, I submit, ladies and gentlemen, you either know, or you have reason to know . . . that the person who is giving you that command is a law enforcement officer. Element number three is proven.

I'm going to make a reservation here. Notice, the defendant, has to know or have reason to know, that Patrolman Parvin was a law enforcement officer. Also, [] defendant prevented, or arrested -- or prevented the arrest by flight. Think about the testimony you heard from Patrolman Parvin, and also from Sergeant [Pastirko]. That rider, this defendant, was never apprehended that night. He succeeded. He accomplished his mission. . . . [H]e knew that Patrolman Parvin wanted to stop him, and wanted to make an arrest. And he got away, because he turned around that bike, and he got away from Patrolman Parvin.

Defendant argues this comment misstates the requirement that he knew or had reason to know a law enforcement officer was effectuating an arrest and "purposely prevent[ed] . . . [that] law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). We determine the comment did not rise to the level of plain error warranting reversal. Feal, supra, 194 N.J. at 312; R. 2:10-2.

Our review reveals the prosecutor's closing did include a statement that the State must show defendant knew or had reason to know that the law enforcement officer was effecting an arrest; specifically, the prosecutor stated that defendant "knew that Patrolman Parvin wanted to stop him, and wanted to make an arrest." When considering the entire closing, we conclude the remarks related to all elements of the offense, and no error is presented.

More important, the court instructed the jury not to consider counsel's arguments but to follow its instructions on the law. The judge fully and correctly recited the elements of the charged offense, stating as to the "[t]hird element the State must prove beyond a reasonable doubt [] that defendant knew or had reason to know that Officer Parvin . . . was a law enforcement officer effecting an arrest." This eliminated the possibility of jury confusion. There is no doubt the jury understood the law and the State's burden of proof.

We conclude the statement was not "sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." Kemp, supra, 195 N.J. at 157 (internal quotations omitted). In all respects, defendant's trial was fair and his conviction must be upheld.



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