STATE OF NEW JERSEY VS. JONATHAN L. SYLVESTER (15-01-0001, UNION COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0899-17T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JONATHAN L. SYLVESTER,
    a/k/a BJ SYLVESTER, JOHN
    SYLVESTER, JONATHAN J.
    SYLVESTER, JOHNATHAN
    L. SYLVESTER, and JOHNATHAN
    L. SYLVESTER, JR.,
    Defendant-Appellant.
    ______________________________
    Submitted September 18, 2019 – Decided October 16, 2019
    Before Judges Fuentes, Haas and Mayer.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment No. 15-01-0001.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Susan Brody, Assistant Deputy Public
    Defender, of counsel and on the brief).
    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
    attorney for respondent (Milton S. Leibowitz, Special
    Deputy Attorney General/Acting Assistant Prosecutor,
    of counsel and on the brief).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    Defendant appeals from a September 28, 2017 judgment of conviction for
    murder and weapons charges. We affirm.
    Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)
    (count one); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
    5(b) (count two); and second-degree possession of a firearm for an unlawful
    purpose, N.J.S.A. 2C:39-4(a) (count three).         After fourteen days of trial
    testimony, the jury convicted defendant on all three counts.
    At sentencing, the trial judge merged counts one and three, and sentenced
    defendant to life in prison with a thirty-year parole ineligibility period. On count
    two, the judge sentenced defendant to a concurrent ten-year term with a five-
    year period of parole ineligibility. One month later, the judge resentenced
    defendant on count one, in accordance with the No Early Release Act, N.J.S.A.
    2C:43-7.2, to life imprisonment with an eighty-five percent parole disqualifier.
    I.
    Defendant allegedly shot and killed Rashawn Bryant (the victim) after the
    two argued over a dice game. The Plainfield police responded to the scene of
    A-0899-17T1
    2
    the shooting and interviewed several individuals. The police found spent shell
    casings, but did not recover a weapon. Nor did the police find clothing that
    matched the items worn by the shooter.
    At trial, the following witnesses testified on behalf of the State: Mitchell
    Britton, Anthony Broy, Alex Greene, Dorrell Henderson, Fatimah Noel, and
    Kenneth Williams. Britton, Henderson, and Williams were playing dice in the
    street outside defendant's house at the time of the shooting. Henderson is
    defendant's cousin. Noel was defendant's then-girlfriend. Broy was in the area
    when the shooting occurred but did not play dice with the group. Greene lived
    with defendant.
    Britton, Henderson, and Williams had varying accounts of the incident.
    They said defendant wanted to join the game but was told he could not play.
    Defendant then walked away, but stated he would return.
    Greene, who was on the porch of defendant's house, heard an argument
    between defendant and the victim. Greene testified defendant appeared upset
    when he returned to the house. According to Greene, defendant went upstairs.
    When defendant returned, he was wearing something black over his head.
    Britton, Henderson, and Williams originally told the investigating officers
    there had been a drive-by shooting from a black vehicle that fled the scene. The
    A-0899-17T1
    3
    police obtained surveillance video of the street at the time of the shooting. No
    black car was in the area at the time of the shooting. As a result of the
    contradictory surveillance video, the police brought Britton, Henderson, and
    Williams to the police station for follow-up interviews.
    The police again questioned the men regarding the shooting. All three
    confessed there was no drive-by shooting. They explained they made up the
    story because they did not want to get involved, distrusted the police, and sought
    to avoid being charged in connection with the shooting.
    At the police station, the men described a masked man who approached
    the dice game, displayed a gun, and fired three or four shots. Britton told the
    police it was possible defendant was the shooter because defendant left the game
    and said he would return. Williams stated the shooter wore a ski mask, jeans,
    and a hoodie. Henderson's version of the events was similar to the accounts
    provided by Britton and Williams.
    In his original statement, Greene, who was standing on the porch of the
    house where he and defendant resided, told the police he heard gunshots and
    saw defendant running and pulling a ski mask over his face.
    Britton called 9-1-1 and the victim was taken to the hospital, where he
    died as a result of a gunshot wound to the abdomen.
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    4
    Noel, defendant's girlfriend at the time, went to defendant's house shortly
    after the shooting. She asked defendant if he had anything to do with the
    shooting. According to Noel, defendant responded, "Baby, I love you and I'm
    sorry." However, he told Noel he had nothing to do with the shooting.
    At trial, Britton, Greene, Henderson, and Williams were unable to recall
    the events of the evening. They also did not remember their recorded statements
    to the police. The prosecution used transcripts from the police interviews to
    refresh the witnesses' recollections during their trial testimony.
    Britton testified defendant was wearing a white tank top, shorts, and boots
    when he approached the group. Britton stated the victim and defendant did not
    argue that evening. He said the shooter wore a ski mask and black hoodie and
    appeared from a backyard located across the street from the dice game.
    According to Williams, defendant approached the dice group and wanted
    to join the game. Williams testified that defendant wore a tank top, shorts, and
    boots. He was unable to remember whether defendant and the victim argued
    over the dice game. However, during his interview with the police, Williams
    stated defendant and the victim argued. Williams also told the police the shooter
    was a tall black man wearing a ski mask, a royal blue hoodie, and gloves, and
    the shooter and defendant were similar in height. According to Williams's trial
    A-0899-17T1
    5
    testimony, the shooter came from the opposite side of the street from a rear yard,
    but he was unable to recall the specific yard.
    Henderson gave testimony similar to the accounts provided by Britton and
    Williams. In his police interview, Henderson recalled defendant being unhappy
    that he was not allowed to join the dice game.        According to Henderson,
    defendant left the game but said he would be back. Henderson "presumed"
    defendant was the masked man who approached the group, pulled out a gun, and
    fired three or four shots.
    Kareem Duren testified for the State. At the time of his testimony, Duren
    was serving a seven-year prison sentence. He was in the same prison and cell
    block as defendant. According to Duren, while playing cards with defendant
    and other inmates in the prison, the group discussed people they knew in
    Plainfield and the victim's name was mentioned. Defendant allegedly discussed
    the shooting and said, "Yeah, I bust his ass."
    Duren wrote to the prosecutor's office regarding defendant's jailhouse
    confession several months later. Duren admitted he did so hoping to receive
    leniency on his sentence and get "a deal." Duren told the jury he did not receive
    a deal for providing information about defendant's confession to law
    enforcement.
    A-0899-17T1
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    On cross-examination, Duren testified he was not given a photograph of
    defendant to properly identify the individual who confessed to shooting the
    victim. Defense counsel also established Duren regularly provided information
    to detectives and prosecutors in an attempt to gain an earlier release from prison.
    Koctrell Battle, who was in the same prison and cell block at the same
    time as defendant and Duren, was the only defense witness to testify at trial. His
    testimony starkly contrasted Duren's testimony. Battle recalled the card game
    when defendant supposedly confessed to killing the victim. However, Battle
    said the card group was joking around while they played and testified defendant
    never mentioned the victim's name or confessed to shooting the victim.
    Defense counsel asked Battle whether being an informant potentially
    benefits an inmate. Battle explained inmates become informants to "get stuff
    like their charges thrown out or time off their sentence . . . ." He further testified
    an inmate could learn about another inmate's case through gossip with other
    prisoners, and it was possible for inmates to look at case files maintained within
    the prison.
    At the conclusion of testimony, counsel presented closing arguments.
    Defense counsel attacked the credibility of the witnesses. In his summation, he
    pointed to flaws in the police investigation of the shooting. Defense counsel
    A-0899-17T1
    7
    told the jury the testimony of Britton, Greene, Henderson, and Williams should
    be discredited because they were liars who could not be trusted.         Counsel
    characterized Duren as a "jailhouse snitch" who testified to further his self-
    interest. Defense counsel also attacked the lead investigating detective, listing
    numerous mistakes and highlighting his inexperience.
    The State's summation focused on the reluctance of the witnesses who
    testified at trial and their inability to recall the shooting.      The assistant
    prosecutor explained the eyewitnesses were reluctant to testify because they
    feared being charged in connection with the shooting and hesitated to cooperate
    with the police based on previous negative experiences with the criminal justice
    system. She told the jury reluctant witnesses are "still credible" because they
    "ultimately disclosed the truth."
    In response to defense counsel's attack of the lead investigative detective
    during summation, the State described the investigation as "thorough" and told
    the jury the investigators "tirelessly work[ed] this case."         The assistant
    prosecutor informed the jury the investigator "spent time away from his own
    family . . . day after day working this case along with the other team of
    investigators. Because [he] cared about doing the right thing . . . ."
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    8
    The assistant prosecutor cited the poet Maya Angelou, and compared the
    victim's death to hers. She contrasted Maya Angelou's honesty and "raw"
    writing style to the witnesses' silence and lies. She then asked the jury to "[u]se
    [their] voice and find this defendant guilty as charged . . . ."
    After the closing arguments, the trial judge charged the jury in accordance
    with the model jury instructions. During deliberations, the jury asked the judge
    to provide a "more layperson/basic distinction" between murder, aggravated
    manslaughter, and reckless manslaughter.         Initially, the judge indicated he
    would give the jury more basic definitions. However, the next morning, the
    judge instructed the jury to refer to the verdict sheet and consider the charges
    sequentially.
    Defense counsel asked the judge to reinstruct the jury using the model jury
    charge, specifically the "presumption of innocence, burden of proof and
    reasonable doubt after listening to that simplified version of murder versus
    agg[ravated] man[slaughter] versus manslaughter."          The judge declined to
    reinstruct the jury.
    Later that day, the jury rendered its verdict, finding defendant guilty on
    all counts.
    A-0899-17T1
    9
    At sentencing, the judge found aggravating factors one, two, three, six,
    and nine of N.J.S.A. 2C:44-1(a) applied. He found no mitigating factors applied.
    The judge also reviewed defendant's criminal history and prior prison sentences.
    After the judge merged counts one and three, he sentenced defendant to life
    imprisonment with an eighty-five percent parole disqualifier. On count two, the
    judge sentenced defendant to a concurrent ten-year term with a five-year period
    of parole ineligibility.
    II.
    In his counseled brief on appeal, defendant raises the following
    arguments:
    Point I
    THE COURT'S REFUSAL TO RESPOND TO THE
    JURY'S INQUIRY BY REINSTRUCTING AS TO
    THE ELEMENTS OF MURDER AND ITS LESSER
    INCLUDED OFFENSES, AND ITS DECISION TO
    INSTEAD MERELY INSTRUCT THE JURORS TO
    CONSIDER THE CHARGES SEQUENTIALLY,
    DEPRIVED      DEFENDANT     OF     HIS
    CONSTITUTIONAL RIGHTS TO DUE PROCESS
    AND A FAIR TRIAL.
    Point II
    THE IMPROPER INTRODUCTION OF TRIAL
    TESTIMONY FORENSICALLY LINKING THE
    MISSING FIREARM ALLEGEDLY USED IN THE
    OFFENSE TO A PRIOR, UNRELATED CRIME
    A-0899-17T1
    10
    DEPRIVED      DEFENDANT   OF     HIS
    CONSTITUTIONAL RIGHT TO A FAIR TRIAL
    (NOT RAISED BELOW).
    Point III
    THE INTRODUCTION AT TRIAL OF INHERENTLY
    UNRELIABLE     JAILHOUSE      INFORMANT
    TESTIMONY WAS INCOMPATIBLE WITH THE
    DUE PROCESS RIGHTS GUARANTEED TO
    DEFENDANT UNDER THE NEW JERSEY
    CONSTITUTION,   AND    THUS,    REQUIRES
    REVERSAL OF DEFENDANT'S CONVICTIONS. IN
    THE ALTERNATIVE, REVERSAL IS REQUIRED
    BECAUSE THE COURT FAILED TO HOLD A
    PRETRIAL HEARING ON THE RELIABILITY OF
    THE TESTIMONY AND FAILED TO PROPERLY
    INSTRUCT THE JURY ON HOW TO EVALUATE
    SUCH TESTIMONY (NOT RAISED BELOW).
    Point IV
    THE COURT ERRED TO DEFENDANT'S GRAVE
    DETRIMENT IN PERMITTING THE PROSECUTOR
    TO PLAY, OUT OF CONTEXT AND OVER
    DEFENSE OBJECTION, AN AUDIO AND VIDEO
    EXCERPT OF THE MOST DAMAGING PORTION
    OF ALEX GREENE'S STATEMENT TO POLICE.
    Point V
    THE PROSECUTOR'S MULTIPLE INSTANCES OF
    PROFESSIONAL MISCONDUCT THROUGHOUT
    THE TRIAL HAD THE INEVITABLE EFFECT OF
    DEPRIVING     DEFENDANT       OF     HIS
    CONSTITUTIONAL RIGHT TO HAVE HIS CASE
    CONSIDERED BY A FAIR AND IMPARTIAL JURY.
    REVERSAL IS REQUIRED (NOT RAISED BELOW).
    A-0899-17T1
    11
    Point VI
    THE LIFE TERM IMPOSED UPON DEFENDANT IS
    SO MANIFESTLY EXCESSIVE UNDER ALL THE
    APPLICABLE CIRCUMSTANCES THAT IT MUST
    SHOCK THE CONSCIENCE OF THE THIS COURT.
    IT SHOULD BE VACATED AND THE MATTER
    REMANDED FOR RESENTENCING (NOT RAISED
    BELOW).
    In his supplemental pro se brief, defendant asserts the following
    arguments:
    Point I:
    THE TRIAL COURT[']S RESPONSE TO THE
    JURY[']S QUESTION OF A MORE "LAY PERSON"
    "BASIC DISTINCTION" OF THE CHARGE OF
    MURDER AND THE LESSER INCLUDED
    OFFENSE OF AGGR[A]VATED MANSLAUGHTER
    AND RECKLESS MANSLAUGHTER WAS ERROR
    AND     THE    STATE[']S ARGUMENT     IS
    INAPPROPRIATE.
    Point II
    THE STATE[']S RESPONSE TO WHETHER THE
    COURT PROPERLY PERMITTED THE STATE TO
    PLAY A PORTION OF ALEX GREENE[']S
    STATEMENT TO THE POLICE [SIC] NOR WAS IT
    APPROPRIATE TO REPLAY IT AT THE JURY[']S
    REQUEST WITHOUT PUTTING THE REPLAY IN
    PROPER CONTEXT.
    A-0899-17T1
    12
    III.
    We note defendant raises several arguments in his counseled brief for the
    first time on appeal. As the Supreme Court explained, "[a]ppellate review is not
    limitless." State v. Robinson, 
    200 N.J. 1
    , 19 (2009). It is well-established that
    "our Rules envision the making of contemporaneous objections as the principal
    and almost exclusive means of preserving an issue for appeal." 
    Id.
     at 20 (citing
    R. 1:7-2).
    In addition, defendant did not object at trial to the State's introduction of
    ballistic testimony; the testimony of the jailhouse informant; or the instances of
    prosecutorial error. Therefore, we consider these issues under the plain error
    standard, that is, whether the error was "of such a nature as to have been clearly
    capable of producing an unjust result . . . ." R. 2:10-2. Not any possibility of
    an unjust result will suffice as plain error, only one "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. Macon, 
    57 N.J. 325
    , 336 (1971).
    Applying these legal principles, none of the alleged errors were clearly
    capable of producing an unjust result.
    A-0899-17T1
    13
    IV.
    We first consider whether the trial court erred in responding to the jury's
    request for supplemental definitions of murder, aggravated manslaughter, and
    reckless manslaughter. Defendant contends the judge should have provided
    additional information to the jury in response to their question and recharged the
    jury using the model jury charges.
    When a jury requests a clarification from a trial court, the judge is
    obligated to "clear the confusion." State v. Savage, 
    172 N.J. 374
    , 394 (2002)
    (quoting State v. Conway, 
    193 N.J. Super. 133
    , 157 (App. Div. 1984)). The
    court must "guide the jury, which includes responding to any questions it may
    ask during deliberations." State v. Marcus, 
    294 N.J. Super. 267
    , 292 (App. Div.
    1996). The trial judge must instruct the jury on the law clearly and accurately.
    State v. Oates, 
    246 N.J. Super. 261
    , 268 (App. Div. 1991).
    When charging a jury on murder, manslaughter, and reckless
    manslaughter, "there is nothing inherently wrong with a sequential charge."
    State v. Perry, 
    124 N.J. 128
    , 164 (1991) (quoting State v. Coyle, 
    119 N.J. 194
    ,
    223 (1990)).    In Perry, the trial judge instructed the jury to deliberate on
    "murder[ first], and to move on to subsequent charges only if the jury acquitted
    defendant of murder[ first]." 
    Ibid.
     In affirming the trial judge's instruction, the
    A-0899-17T1
    14
    Court noted "sequential charges usually provide a framework for orderly
    deliberations." Id. at 165 (quoting Coyle, 
    119 N.J. at 223
    ).
    Here, the judge gave the model jury instructions to the jury regarding
    murder, aggravated manslaughter, and reckless manslaughter. Defendant did
    not argue the instructions provided to the jury were erroneous.
    During deliberations, the jury asked the trial court to provide a
    "layperson/basic" definition for murder, aggravated manslaughter, and reckless
    manslaughter. The judge told the jury to "[d]eal with issue one[, murder,] first,
    resolve it, and then move on to the next. And then[,] after you've dealt with
    count one and the lesser included charges, you can move on to the remaining
    counts . . . ." The judge reminded the jurors they had a written copy of the jury
    charge and should review it for the elements of the offenses. In addition, the
    judge instructed the jury to return with any additional questions if they needed
    further clarification.
    The jury then continued deliberating without asking any additional
    questions before reaching a verdict. "The failure of the jury to ask for further
    clarification or indicate confusion demonstrates that the response was
    satisfactory." State v. McClain, 
    248 N.J. Super. 409
    , 421 (App. Div. 1991).
    A-0899-17T1
    15
    We are satisfied there was no error in the charge as given. The judge
    provided the jury with the model jury instructions and there is a presumption the
    jury followed his charge. See Savage, 
    172 N.J. at 394
    . The jury charge and the
    judge's response to the jury's question, taken as a whole, did not prejudice
    defendant or confuse the jury. 
    Id. at 387
    .
    V.
    We next review defendant's contention that the trial judge erred in
    admitting testimony offered by the State, linking the gun allegedly used by
    defendant to a crime committed several months earlier. Based on a pre-trial
    agreement between counsel and the trial court's consent to admission of the
    State's ballistics testimony, we reject defendant's contention.
    The assistant prosecutor, recognizing the testimony might be prejudicial
    to defendant, expressed her concern to the judge and defense counsel. Defense
    counsel replied he had no concern and intended to use the evidence to
    defendant's advantage during the trial.
    When defense counsel acquiesces to a "mistake" or "error" at trial, such
    as the introduction of otherwise inadmissible evidence, that mistake is generally
    no longer a basis on appeal. State v. A.R., 
    213 N.J. 542
    , 561 (2013). "[I]f a
    party has 'invited' the error, he is barred from raising an objection for the first
    A-0899-17T1
    16
    time on appeal." 
    Ibid.
     The invited error doctrine disqualifies trial errors that
    defense counsel "induced, encouraged or acquiesced in or consented to" as
    grounds for reversal. State v. Munafo, 
    222 N.J. 480
    , 487 (2015) (quoting A.R.,
    213 N.J. at 561). "The invited-error doctrine is intended to 'prevent defendants
    from manipulating the system' and will apply 'when a defendant in some way
    has led the court into error' while pursuing a tactical advantage that does not
    work as planned." State v. Williams, 
    219 N.J. 89
    , 100 (2014) (quoting A.R.,
    213 N.J. at 561-62). The doctrine will not apply if the error "cut[s] mortally into
    the substantive rights of the defendant," State v. Corsaro, 
    107 N.J. 339
    , 345
    (1987) (quoting State v. Harper, 
    128 N.J. Super. 270
    , 277 (App. Div. 1974)), or
    if applying it would "cause a fundamental miscarriage of justice." A.R., 213
    N.J. at 562 (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 
    201 N.J. 328
    , 342 (2010)).
    Here, defense counsel consented to admission of testimony that the gun
    used to kill the victim had been used in a prior shooting. Counsel made a
    strategic decision to use potentially damaging evidence to defendant's advantage
    at trial. Through cross-examination of the State's ballistics witness, defense
    counsel informed the jury that the gun in this case was never recovered and the
    A-0899-17T1
    17
    victim in the prior incident was unable to identify the shooter, casting doubt on
    defendant's identity as the shooter.
    Having reviewed the record, we discern no abuse of discretion in the
    judge's admission of the ballistics testimony because defense counsel consented
    to the testimony for strategic reasons. See State v. Marshall, 
    123 N.J. 1
    , 93
    (1991) ("except in the most extreme cases, strategic decisions made by defense
    counsel will not present grounds for reversal on appeal"). We are satisfied there
    was "no fundamental injustice that would warrant relaxing the invited error
    doctrine." See M.C. III, 
    201 N.J. at 342
    .
    VI.
    We next address defendant's challenge to the judge's admission of
    testimony from a jailhouse informant. Defendant argues the testimony of the
    jailhouse informant should have been precluded as unreliable. Alternatively,
    defendant contends the judge should have conducted a pretrial hearing to
    determine the reliability of the informant's testimony. At a minimum, defendant
    asserts the judge should have provided the jury with the cooperating witness
    charge.
    Defendant's argument is premised on various law review articles and out-
    of-state cases that are not binding on this court. Relying on these materials,
    A-0899-17T1
    18
    defendant argues jailhouse informants falsely testify to gain favor with law
    enforcement and receive favorable treatment in return for their testimony.
    Defendant essentially challenges the credibility of the jailhouse
    informant's testimony. Issues of credibility are to be decided by the jury. State
    v. Frisby, 
    174 N.J. 583
    , 594 (2002) (quoting State v. J.Q., 
    252 N.J. Super. 11
    ,
    39 (App. Div. 1991)).        "[T]he jury is charged with making credibility
    determinations based on ordinary experiences of life and common knowledge
    about human nature, as well as upon observations of the demeanor and character
    of the witness." State v. Jamerson, 
    153 N.J. 318
    , 341 (1998) (citing J.Q., 
    252 N.J. Super. at 39
    ). In assessing credibility, "[c]ross-examination is 'the "greatest
    legal engine ever invented for the discovery of truth."'" State v. Silva, 
    131 N.J. 438
    , 444 (1993) (quoting California v. Green, 
    399 U.S. 149
    , 158 (1970)).
    We are satisfied defendant's counsel thoroughly cross-examined the
    jailhouse informant, Duren, regarding defendant's confession. Counsel elicited
    testimony regarding Duren's prior convictions, resulting prison sentences, and
    motivation for testifying, including a desire to receive favorable treatment in
    return for testifying against defendant. In addition, the sole defense witness,
    fellow inmate Battle, testified defendant never confessed to killing the victim.
    The judge properly charged the jury in assessing the credibility of witnesses.
    A-0899-17T1
    19
    Based on these considerations, we are satisfied defendant's due process
    rights were not violated.     Therefore, the admission of testimony from the
    jailhouse informant was not an error "clearly capable of producing an unjust
    result." R. 2:10-2. We also note defendant never requested a cooperating
    witness charge and the issue was raised for the first time on appeal.
    VII.
    We next consider defendant's argument that the court erred in playing an
    excerpt of Greene's videotaped statement to the police during the trial. In the
    portion played for the jury, Greene stated defendant went from his house to the
    street; Greene then heard shots; and Greene saw defendant running to the back
    of the house wearing a ski mask. At trial, Greene testified he was unable to
    recollect his statement to the police, except to recall crying during the police
    interview, and claimed he was pressured by the police to provide untrue facts.
    When reviewing a trial court's decision to admit evidence, we are "limited
    to examining the decision for abuse of discretion." State v. Kuropchak, 
    221 N.J. 368
    , 385 (2015) (quoting Hisenaj v. Kuehner, 
    194 N.J. 6
    , 12 (2008)). Under the
    abuse of discretion standard, "an appellate court should not substitute its own
    judgment for that of the trial court, unless the trial court's ruling 'was so wide of
    the mark that a manifest denial of justice resulted.'" Id. at 385-86 (quoting State
    A-0899-17T1
    20
    v. Marrero, 
    148 N.J. 469
    , 484 (1997)). "Considerable latitude is afforded a trial
    court in determining whether to admit evidence . . . ." State v. Feaster, 
    156 N.J. 1
    , 82 (1998).
    N.J.R.E. 803(c)(5) allows a party to read a past recorded recollection when
    the witness does not remember the circumstances of what occurred or his or her
    previous testimony. See State v. Cestone, 
    38 N.J. Super. 139
    , 146 (App. Div.
    1955). In addition, N.J.R.E. 607 allows extrinsic credibility evidence to be
    introduced by any party. See State v. Parker, 
    216 N.J. 408
    , 418 (2014).
    Having reviewed the record, the judge did not abuse his discretion in
    admitting a portion of Greene's videotaped statement to the police. Greene's
    recorded statement met the requirements of N.J.R.E. 803(c)(5). The recording
    was made shortly after the shooting and concerned a matter that Greene recalled
    at the time he gave his statement but did not remember at the time of trial.
    In addition, the admissibility of the videotaped interview was governed
    by N.J.R.E. 607, which allows admission of extrinsic evidence relevant to
    credibility. Greene told the jury he cried during his recorded statement and was
    pressured into giving the statement to the police. The State sought to challenge
    his credibility.
    A-0899-17T1
    21
    The State asked the judge to allow the jury to see and hear the videotape
    of Greene's recorded statement, arguing it was admissible to show Greene did
    not cry during the interview, the police did not pressure Greene during
    questioning, and Greene was "cool, calm and collected" throughout the
    interview.
    Defense counsel objected, arguing the video was inadmissible under the
    Rules of Evidence, the recorded testimony was "riddled with hearsay," and
    contained information the "jury should not be hearing."
    The judge admitted the video for impeachment of Greene's testimony
    under N.J.R.E. 803(c)(5), N.J.R.E. 607, and general relevancy grounds. He
    found the video would show the jury that Greene was "cool, calm and collected"
    during the police interview. The judge also permitted the State to play the audio
    from that portion of the police interview for the jury to determine if Greene
    spoke in a manner consistent with someone who was distraught and pressured
    into answering the officers' questions.
    We discern no abuse of discretion in allowing the State to use the
    videotape of Greene's police interview, inclusive of the audio, as probative in
    challenging Greene's credibility at trial. The jury was able to consider the
    videotape to gauge Greene's demeanor during the interview, measure the
    A-0899-17T1
    22
    officers' tone and manner during their questioning, and assess Greene's
    credibility. Under the circumstances, the use of Greene's videotape statement
    to the police was not an error "clearly capable of producing an unjust result." R.
    2:10-2.
    VIII.
    Defendant next argues multiple instances of prosecutorial error during the
    course of the trial warrant reversal of his conviction and a new trial. Defendant
    alleges the following examples of error by the State: the assistant prosecutor's
    attacking Britton during direct-examination; insinuating "Britton, Henderson,
    and Williams had lied to police at first because they were afraid of being labeled
    snitches;" bolstering the investigators' credibility during summation; using the
    word "maniac" to describe the shooter; and relating the victim to Maya Angelou
    during closing argument.
    A reviewing court should not reverse a conviction on the grounds of
    prosecutorial error "unless the conduct was so egregious as to deprive defendant
    of a fair trial." State v. Wakefield, 
    190 N.J. 397
    , 437-38 (2007) (quoting State
    v. Papasavvas, 
    163 N.J. 565
    , 625 (2000)).           To warrant a new trial, the
    prosecutor's misconduct must be "clearly and unmistakably improper" and
    "substantially prejudice[] defendant's fundamental right to have a jury fairly
    A-0899-17T1
    23
    evaluate the merits of his defense." 
    Id.
     at 438 (citing State v. Smith, 
    167 N.J. 158
    , 181-82 (2001)). "Factors to consider when analyzing prosecutorial conduct
    include whether defense counsel made a timely and proper objection, whether
    the remark was withdrawn promptly, and whether the court gave a limiting
    instruction." State v. Chew, 
    150 N.J. 30
    , 84 (1997).
    Here, defendant's counsel did not object to the assistant prosecutor's
    remarks when they were made.           "[W]hen counsel does not make a timely
    objection at trial, it is a sign 'that defense counsel did not believe the remarks
    were prejudicial' when they were made." State v. Pressley, 
    232 N.J. 587
    , 594
    (2018) (quoting State v. Echols, 
    199 N.J. 344
    , 360 (2009)). A "[d]efendant's
    lack of objections . . . weighs against [the] defendant's claim that errors were
    'clear' or 'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below
    that in the context of the trial the error was actually of no moment.'" State v.
    Nelson, 
    173 N.J. 417
    , 471 (2002) (second and third alterations in original)
    (quoting Macon, 
    57 N.J. at 333
    ).
    Prosecutors have "considerable leeway in summing up the State's case."
    State v. W.L., 
    292 N.J. Super. 100
    , 110 (App. Div. 1996) (citing State v.
    Williams, 
    113 N.J. 393
    , 447 (1984)). Prosecutors' comments "must be confined
    to the evidence and the reasonable inferences to be drawn from the evidence."
    A-0899-17T1
    24
    Id. at 111 (citations omitted). Remarks "plainly designed to impassion the jury"
    are often grounds for reversal. Ibid. (quoting State v. Gregg, 
    278 N.J. Super. 182
    , 191 (App. Div. 1994)).
    Generally, it is inappropriate for a prosecutor to comment on the
    credibility of the police officers who testify at trial. See State v. Hawk, 
    327 N.J. Super. 276
    , 284-85 (App. Div. 2000); State v. Frost, 
    158 N.J. 76
    , 85-86 (1999).
    However, a prosecutor's otherwise prejudicial arguments may be harmless if
    made in response to defense counsel's arguments. See State v. Munoz, 
    340 N.J. Super. 204
    , 216 (App. Div. 2001); State v. DiPaglia, 
    64 N.J. 288
    , 297 (1974).
    The remarks to which defense counsel objected were withdrawn by the
    State. As to other conduct or questions by the State that defendant claims were
    improper, defense counsel failed to object at trial. In reviewing the transcript of
    the closing argument, we note the assistant prosecutor's statements, specifically
    regarding the police officers' conduct and the reluctance of the witnesses to
    testify, were in response to arguments asserted in defense counsel's closing or
    were based on the evidence in the record.
    With regard to the reference to Maya Angelou during the State's closing
    argument, prosecutors "are expected to make vigorous and forceful closing
    arguments to juries." Frost, 
    158 N.J. at 82
    . Because defense counsel failed to
    A-0899-17T1
    25
    object to this portion of the State's summation, we are satisfied counsel was not
    concerned with this remark at the time of closing.
    While some remarks by the assistant prosecutor during the course of trial
    were bordering on improper, they did not "substantially prejudice[] defendant's
    fundamental right to have a jury fairly evaluate the merits of his defen se."
    Wakefield, 
    190 N.J. at 438
     (quoting Papasavvas, 
    163 N.J. at 625
    ). After a
    careful review of the record, it is clear the assistant prosecutor's statements and
    conduct during the trial were either fair comments or harmless, and there is no
    indication that the jury was led to a result it would not have otherwise reached.
    We therefore reject defendant's contention that the assistant prosecutor's conduct
    deprived him of a fair trial.
    IX.
    Defendant argues the life sentence imposed is manifestly excessive and
    shocks the conscience. He also argues the judge engaged in "double-counting"
    by relying on the seriousness of the crime in finding aggravating factors one and
    two.
    We review the trial court's sentencing decision under an abuse of
    discretion standard. State v. Jones, 
    232 N.J. 308
    , 318 (2018). In doing so, we
    consider whether: "(1) the sentencing guidelines were violated; (2) the findings
    A-0899-17T1
    26
    of aggravating and mitigating factors were . . . 'based upon competent credible
    evidence in the record'; [and] (3) 'the application of the guidelines to the facts'
    of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 
    217 N.J. 221
    ,
    228 (2014) (third alteration in original) (quoting State v. Roth, 
    95 N.J. 334
    , 364-
    65 (1984)).
    Here, the judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1)
    (nature and circumstances of the offense); two, N.J.S.A. 2C:44-1(a)(2) (gravity
    and seriousness of the harm); three, N.J.S.A. 2C:44-1(a)(3) (risk of
    reoffending); six, N.J.S.A. 2C:44-1(a)(6) (prior criminal record); and nine,
    N.J.S.A. 2C:44-1(a)(9) (need to deter). The judge found no mitigating factors.
    Regarding aggravating factor one, the judge stated "there could be nothing
    more heinous, cruel or depraved than taking another person's life." The judge
    explained killing someone who was considered a friend could be one of the
    worst criminal acts. He added that "shooting someone over something that
    happened at a dice game or feeling that they were disrespected . . . has to be
    considered heinous and cruel . . . and depraved."
    Regarding aggravating factor two, the judge stated that defendant's
    intention to murder the victim showed the seriousness of the crime. The judge
    remarked "[t]he gravity and seriousness of harm inflicted has to specifically be
    A-0899-17T1
    27
    the fact that it was . . . a murder. It was intended to be a murder. It was done . .
    . to inflict the maximum amount of harm against the victim."
    Regarding aggravating factors three and six, the judge reviewed the
    presentence report and defendant's criminal record. Based on that review, the
    judge concluded there was a risk of reoffending and defendant had a "total
    disregard for the rules of society . . . ."
    Regarding aggravating factor nine, the judge concluded "[t]here's always
    the need to deter an individual from violating the law and others as well."
    Having reviewed the record, we reject defendant's argument that the judge
    erred in imposing a life sentence because he misapplied the aggravating
    sentencing factors under N.J.S.A. 2C:44-1(a) by "double-counting" the murder
    conviction. The judge provided a statement of reasons supporting his sentencing
    decision, the sentence is based on competent credible evidence in the record,
    and it does not shock the judicial conscience.        The trial court applied the
    aggravating and mitigating factors and followed the appropriate sentencing
    guidelines. State v. Bieniek, 
    200 N.J. 601
    , 608 (2010) (quoting Roth, 
    95 N.J. at 364-65
    ).    Defendant's criminal record and the facts of this case support a life
    sentence.
    A-0899-17T1
    28
    We have considered defendant's arguments in his pro se supplemental
    brief and conclude they are without sufficient merit to warrant discussion in a
    written opinion. R. 2:11-3(e)(2).
    Affirmed.
    A-0899-17T1
    29