STATE OF NEW JERSEY VS. ANTOINE L. HENDERSON (13-09-2328 AND 14-11-2861, OCEAN 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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2863-15T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    ANTOINE L. HENDERSON,
    Defendant-Appellant.
    ______________________________
    Submitted April 9, 2018 – Decided January 24, 2019
    Before Judges Accurso, O'Connor and Vernoia.
    On appeal from Superior Court of New Jersey, Law
    Division, Ocean County, Indictment Nos. 13-09-2328
    and 14-11-2861.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Alyssa A. Aiello, Assistant Deputy Public
    Defender, of counsel on the brief).
    Joseph D. Coronato, Ocean County Prosecutor,
    attorney for respondent (Samuel J. Marzarella, Chief
    Appellate Attorney, of counsel; Roberta DiBiase,
    Supervising Assistant Prosecutor, on the brief).
    This opinion of the court was delivered by
    O'CONNOR, J.A.D.
    Defendant Antoine L. Henderson appeals from a judgment of conviction
    entered following a jury trial, as well as from his pretrial motion to suppress
    evidence. In light of the record and applicable legal standards, we affirm.
    A jury convicted defendant of second-degree distribution of heroin
    within 500 feet of a public park or building, N.J.S.A. 2C:35-7.1(a); second-
    degree possession of heroin within 500 feet of a public park or building,
    N.J.S.A. 2C:35-7.1(a); third-degree possession of heroin, N.J.S.A. 2C:35-
    10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A.
    2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of
    heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). After the
    appropriate mergers, defendant was sentenced to a twelve-year term of
    imprisonment, with a six-year period of parole ineligibility.
    Defendant raises the following issues on appeal:
    POINT I - THE COURT ERRED IN DENYING
    DEFENDANT'S MOTION TO SUPPRESS
    EVIDENCE.
    A. THE LEGALITY OF THE INITIAL
    DETENTION.
    B. ACCETTURO'S ACT OF RESISTING
    SHEPHERD'S EFFORTS TO HANDCUFF
    A-2863-15T3
    2
    HIM DID NOT PURGE THE TAINT OF THE
    ILLEGAL STOP.
    POINT II - REVERSAL IS REQUIRED BECAUSE
    THE TRIAL COURT ERRONEOUSLY DENIED
    HENDERSON'S MOTION FOR MISTRIAL MADE
    WHEN SCANDIFFIO TOLD THE JURY THAT
    HENDERSON IS "A KNOWN DRUG DEALER." IN
    THE ALTERNATIVE, REVERSAL IS REQUIRED
    BECAUSE THE COMBINED PREJUDICE
    RESULTING FROM SCANDIFFIO'S HIGHLY
    DAMAGING REMARK AND FROM TESTIMONY,
    IMPERMISSIBLY ELICITED BY THE
    PROSECUTOR, THAT ACCETTURO HAD
    PURCHASED DRUGS FROM HENDERSON IN
    THE PAST AND THAT THE AREA WHERE THE
    DRUG SALE ALLEGEDLY OCCURRED HAS
    BEEN THE SITE OF NUMEROUS DRUG-
    RELATED ARRESTS IN THE PAST, DEPRIVED
    HENDERSON OF HIS RIGHT TO DUE PROCESS
    AND A FAIR TRIAL. (NOT RAISED BELOW).
    A. THE PRIOR CRIMES EVIDENCE
    INTRODUCED FIRST THROUGH
    ACCETTURO AND THEN THROUGH
    SCANDIFFIO VIOLATED N.J.R.E. 404(b).
    B. TESTIMONY THAT THE AREA IN
    WHICH HENDERSON WAS ARRESTED HAS
    BEEN THE     SITE OF NUMEROUS
    DRUG ARRESTS IN THE PAST WAS
    IRRELEVANT AND PREJUDICIAL.
    C. THE TRIAL COURT ERRED BY FAILING
    TO GRANT HENDERSON'S MOTION FOR
    MISTRIAL MADE AFTER SCANDIFFIO
    TOLD THE JURY THAT HENDERSON WAS
    "A KNOWN DRUG DEALER." IN THE
    ALTERNATIVE, REVERSAL IS REQUIRED
    A-2863-15T3
    3
    BECAUSE THE COMBINED PREJUDICE
    RESULTING FROM SCANDIFFIO'S HIGHLY
    DAMAGING REMARK AND THE OTHER
    IMPROPERLY ADMITTED 404(b)
    EVIDENCE WAS CLEARLY CAPABLE OF
    LEADING THE JURY TO AN UNJUST
    RESULT.
    POINT III - HENDERSON WAS DENIED
    EFFECTIVE ASSISTANCE OF COUNSEL
    BECAUSE THERE WAS NO REASONABLE
    STRATEGIC BASIS FOR DEFENSE COUNSEL'S
    FAILURE TO (A) INTRODUCE EVIDENCE THAT
    THE TWO KEY WITNESSES FOR THE STATE
    HAD AGREED TO TESTIFY AGAINST
    HENDERSON IN EXCHANGE FOR NON-
    CUSTODIAL DISPOSITIONS OF THE OFFENSES
    WITH WHICH THEY WERE CHARGED IN
    CONNECTION WITH THIS CASE, AND (B) ASK
    FOR A COOPERATING WITNESS CHARGE,
    INSTRUCTING THE JURY THAT IT WAS
    REQUIRED TO GIVE CAREFUL SCRUTINY TO
    THE TESTIMONY OF THOSE WITNESSES BASED
    ON THEIR COOPERATION AGREEMENTS. (NOT
    RAISED BELOW).
    I
    A
    We first address the denial of defendant's motion to suppress. The
    relevant testimony elicited during the suppression hearing was as follows.
    Detective Shepherd of the Brick Township Police Department testified that
    during the late afternoon of April 29, 2013, he and two other detectives were
    conducting undercover surveillance. The three detectives sat in an unmarked
    A-2863-15T3
    4
    car in a Wawa parking lot and were looking for evidence of narcotics
    transactions.
    At that time, Shepherd had been assigned to the Drug Enforcement Unit
    of the police department for thirteen years. He stated drug trafficking often
    occurred in the Wawa parking lot, which is in a part of the township he
    characterized as a "high drug area." He testified he had been involved in or
    "had knowledge of" at least one hundred drug-related arrests in this area over
    thirteen years.
    Approximately ten minutes after the detectives arrived in the lot, a
    BMW pulled in and parked. The two occupants of the BMW did not exit the
    car. The BMW then drove across the street, entered and exited a Dunkin'
    Donuts parking lot, pulled into an adjacent gas station, and stopped behind a
    Lincoln parked at a gasoline pump. There were two occupants in the Lincoln,
    a driver and a front seat passenger.
    The detectives drove to the gas station and parked between the BMW
    and a convenience store located on the premises. Shepherd observed the driver
    of the BMW, later identified as Anthony Accetturo, get out of the BMW and
    enter the back seat of the Lincoln. Before he got into the Lincoln, Accetturo
    did not purchase any gasoline. Twenty to thirty seconds after entering the
    Lincoln, Accetturo emerged and returned to the BMW. Although Shepherd
    A-2863-15T3
    5
    claimed he could see into the Lincoln, he conceded he did not see any objects
    exchanged among any of the three occupants while Accetturo was in that
    vehicle.
    Shepherd suspected a drug transaction had "possibly" occurred, because
    neither occupant of the BMW had entered the Wawa after sitting in its parking
    lot for ten minutes, they drove to and parked behind the Lincoln, and, after
    entering the Lincoln, Accetturo exited after only twenty to thirty seconds. The
    three detectives decided Shepherd and one of the other detectives, Lash, would
    question Accetturo, while the third detective, Joseph Forrester, would question
    the two occupants of the Lincoln.
    Shepherd and Lash approached Accetturo, who was seated in the driver's
    seat of the BMW. Shepherd identified himself as a police officer and told
    Accetturo he wanted to ask him about "who he met with and what was going
    on." There is no evidence of what Shepherd specifically asked Accetturo but,
    in response to Shepherd's inquires, Accetturo told Shepherd one of the
    occupants in the Lincoln was an old friend to whom Accetturo owed twenty-
    five dollars. Accetturo stated he and his friend arranged to meet so Accetturo
    could pay his debt.
    Shepherd advised Accetturo he was going to compare what Accetturo
    reported to him to what the occupants of the Lincoln were telling Detective
    A-2863-15T3
    6
    Forrester. Accetturo then stated that he did not in fact give his friend any
    money, merely that he met with his friend. Accetturo explained he stated he
    met with his friend to pay a debt, because he felt pressured to give the police a
    reason for meeting with his friend.
    Shepherd and Forrester then conferred and compared what each had
    learned. Among other things, Forrester informed Shepherd the passenger in
    the front seat of the Lincoln, who was later identified as defendant, had a
    couple of hundred dollars in his hand, and that a small quantity of marijuana
    was on top of the center console of the Lincoln. Forrester expressed
    skepticism defendant and Accetturo were old friends, because Forrester had
    ascertained defendant was in his forties and Accetturo in his twenties.
    The three detectives walked over to the BMW and directed Accetturo to
    step out of the car. After he did so, Shepherd observed a rectangular object,
    smaller than a pack of cigarettes, in the waistband of Accetturo's pants. Based
    upon his experience, Shepherd suspected the object was a brick of heroin.
    Adding to his suspicion was the fact that, at that time, the street value of a
    brick of heroin in the township was between $200 and $250, and defendant had
    $230 in his possession. Shepherd asked Accetturo what was in his pants and
    he sarcastically replied it was his penis.
    A-2863-15T3
    7
    Shepherd informed Accetturo he was placing him under arrest because
    he believed Accetturo was in possession of heroin. As Shepherd started to
    place him in custody, Accetturo turned, twisted, and pushed his body against
    Shepherd's. During the struggle, both Shepherd and Accetturo fell to the
    ground and the other occupant of the BMW, Lauren Scandiffio, jumped on
    Shepherd's back. Another police officer who had arrived at the scene pulled
    her off, and Shepherd was able to gain control over and handcuff Accetturo.
    When the police searched Accetturo, he continued to wrestle with
    Shepherd and, as he was escorted to a police car, a brick of heroin fell out of
    his pant leg. Defendant, Accetturo, and Scandiffio were transported to the
    police station. At the station, Accetturo and Scandiffio gave statements
    admitting Accetturo had contacted defendant in order to purchase narcotics
    from him.
    Detective Sergeant Forrester also testified. His testimony was consistent
    with Shepherd's, but Forrester added that, at that time, he had been overseeing
    the Drug Enforcement Unit for three years. In his ten years with the police
    department, he had made approximately fifty drug-related arrests in the area of
    the Wawa. He also added that when the BMW pulled into the Wawa parking
    lot, both occupants were on their cell phones and "looking around."
    A-2863-15T3
    8
    The State called Accetturo, who testified he contacted defendant to
    purchase Oxycodone from him, and arranged to meet defendant in the Wawa
    parking lot. After he and Scandiffio drove to the lot, Accetturo got a call to
    meet defendant in the gas station across the street. Accetturo drove to the gas
    station, and parked behind and got into the back seat of a car in which
    defendant was a passenger. Accetturo gave defendant approximately $250 in
    exchange for a brick of heroin, which Accetturo then put into his pants.
    Accetturo testified that at some point after he returned to his car, the
    police told him to get out of his car. He complied, but when an officer
    attempted to handcuff him, Accetturo "pushed back at" the officer, although
    the officer eventually restrained him. The officer then tried to search him, but
    he continued to push back against the officer. During the search, the brick of
    heroin fell out of Accetturo's pants.
    At the suppression hearing, defendant argued the police wrongfully
    detained Accetturo as soon as they parked next to his BMW at the gas station.
    Defendant further asserted the search of Accetturo's person could not be
    justified on the ground it was incident to his arrest, because his initial
    detention was unlawful.
    The court rejected defendant's contentions and denied the motion to
    suppress the heroin, finding the first time Accetturo was detained by the police
    A-2863-15T3
    9
    was when he was ordered to step out of the BMW. The court determined that,
    at that point in time, the police had reasonable and articulable suspicion
    Accetturo had engaged in criminal activity, which permitted the police to
    conduct an investigatory stop. The court also found that even if his arrest were
    unlawful, Accetturo's resistance to arrest served to sufficiently attenuate the
    seized heroin from any taint of unconstitutionality.
    B
    On appeal, defendant abandons his contention Accetturo was unlawfully
    detained when the detectives parked next to the BMW at the gas station. He
    now contends Accetturo was unlawfully detained when Shepherd first
    questioned him. Defendant asserts that, until Forrester told Shepherd of what
    he had learned from questioning the occupants of the Lincoln, Shepherd did
    not have reasonable and articulable suspicion Accetturo had engaged or was
    about to engage in criminal activity. Because the investigatory stop was
    unlawful, defendant reasons the fruits of such police activity must be
    suppressed. Finally, defendant contends Accetturo's resistance to his arrest
    failed to purge the taint of his unlawful detention.
    An investigatory stop is valid only "if it is based on specific and
    articulable facts which, taken together with rational inferences from those
    facts, give rise to a reasonable suspicion of criminal activity." State v.
    A-2863-15T3
    
    10 Williams, 192
     N.J. 1, 9 (2007) (quoting State v. Pineiro, 
    181 N.J. 13
    , 20
    (2004)). A determination of whether a police officer has reasonable suspicion
    justifying an investigatory stop is fact sensitive. The totality of the
    circumstances facing a police officer at the time of the encounter must be
    considered in evaluating whether an officer had a reasonable suspicion to
    conduct a brief investigatory stop. Pineiro, 
    181 N.J. at 22
    .
    An officer's experience and knowledge are factors courts consider in
    applying the totality of the circumstances test. 
    Ibid.
     Notably, "[t]he fact that
    purely innocent connotations can be ascribed to a person's actions does not
    mean that an officer cannot base a finding of reasonable suspicion on those
    actions as long as 'a reasonable person would find the actions are consistent
    with guilt.'" Pineiro, 
    181 N.J. at 25
     (quoting State v. Citarella, 
    154 N.J. 272
    ,
    279-80 (1998)). However, a seizure cannot be justified solely on the basis of a
    police officer's hunch. See State v. Elders, 
    192 N.J. 224
    , 247 (2007) (citing
    Pineiro, 
    181 N.J. at 27
    ).
    Further, and significantly, merely being present in an area known for
    high narcotics trafficking activity does not alone support a finding of
    reasonable suspicion. State v. Williams, 
    381 N.J. Super. 572
    , 583-584 (App.
    Div. 2005), rev'd on other grounds, 
    192 N.J. 1
     (2007); State in the Interest of
    D.S., 
    125 N.J. Super. 278
    , 286, (App. Div.) (Botter, J.A.D., dissenting), rev'd,
    A-2863-15T3
    11
    
    63 N.J. 541
     (1973). "[S]ome minimal level of objective justification" must
    exist to detain a citizen. United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989)
    (quoting INS v. Delgado, 
    466 U.S. 210
    , 217 (1984)); State v. Arthur, 
    149 N.J. 1
    , 8 (1997).
    For example, in D.S., defendant and two others were standing on a street
    corner one evening outside a tavern in an area known for narcotics traffic. 
    125 N.J. Super. at 280-81
    . Two police officers decided to investigate, even though
    they had not seen anything pass among the three and none was known to the
    officers as users or sellers of narcotics. 
    Ibid.
     After patting down all three,
    defendant was found in possession of heroin. 
    Id. at 281
    . The Court adopted
    Judge Botter's dissent, in which he concluded neither the investigatory stop nor
    the pat-down search was authorized, even though that area was known for
    narcotics traffic, making the heroin inadmissible. In re State in Interest of
    D.S., 
    63 N.J. 541
    , 542 (1973).
    Similarly, in State v. Kuhn, 
    213 N.J. Super. 275
     (App. Div. 1986), the
    only basis articulated by the police officer for the investigatory stop of the
    defendant's vehicle was the race of three persons in and around the vehicle and
    that they were in a "high crime" area. 
    Id. at 280-81
    . The officer did not
    observe any narcotics or money changing hands. 
    Id. at 280
    . We held no
    A-2863-15T3
    12
    rational inference of criminal activity could be drawn under the circumstances.
    
    Id. at 282
    .
    The State cites only one authority, Arthur, 
    149 N.J. 1
    , in support of its
    premise that the totality of the circumstances provided Shepherd an objectively
    reasonable, articulable suspicion to question Accetturo. In Arthur, a police
    officer engaging in undercover surveillance in an area known for narcotics
    activity saw a woman enter the defendant's parked car and exit five minutes
    later carrying a paper bag. 
    Id. at 3
    . The officer was aware that, at the time,
    paper bags were commonly used to transport drugs. 
    Id. at 5
    . She did not have
    the paper bag when she entered the car and, when she emerged, exhibited
    furtive movements by looking around her and trying to conceal the bag under
    her arm. 
    Id. at 4
    .
    Suspecting the woman had purchased drugs from the defendant, the
    officer subjected her to an investigatory stop. 
    Id. at 5
    . After looking into the
    paper bag and finding narcotics paraphernalia, the police stopped the
    defendant, who volunteered he had drugs in his possession. 
    Ibid.
     The police
    searched him and found cocaine. 
    Id. at 5-6
    . The Court determined the police
    officer had sufficient grounds to subject the woman to the investigatory stop.
    
    Id. at 15
    .
    A-2863-15T3
    13
    Here, Shepherd did not have reasonable, articulable suspicion when he
    initially questioned Accetturo. Even if the area were one where drug
    trafficking was common, there was little evidence Accetturo was engaging or
    about to engage in criminal activity. At best, there was evidence Accetturo
    had arranged to and did meet with the person seated in the Lincoln at a gas
    station, who was in fact purchasing gas, and the two met for twenty to thirty
    seconds. There was no other evidence Accetturo had engaged in any illegal
    activity.
    Unlike in Arthur, the detectives did not see Accetturo exit defendant's
    car carrying any object he did not have when he entered the Lincoln. In fact,
    despite being able to see inside of the Lincoln, Shepherd admitted he did not
    observe the exchange of any objects among those in the Lincoln. Accetturo
    did not exhibit any furtive or other conduct indicting he had drugs in his
    possession when he emerged from the Lincoln.
    In addition, there was no evidence of other factors that have been found
    to support an investigatory stop in other matters, such as the observation of a
    traffic violation, the report of recent crimes nearby, or an informant's tip a drug
    transaction was about to occur. See Kuhn, 
    213 N.J. Super. at 280-81
    . Also,
    there was no evidence the detectives knew Accetturo or defendant was a
    A-2863-15T3
    14
    suspected drug dealer or user. See Pineiro, 
    181 N.J. at 18, 25
    ; see also
    Citarella, 
    154 N.J. at 275
    .
    Although there later emerged evidence there had been an exchange of
    cash and heroin when Accetturo was in the Lincoln, the issue is the knowledge
    the detectives possessed when they initially questioned Accetturo. Under
    these circumstances, the detectives in the present matter could not have
    reasonably believed a crime was underway when Accetturo was initially
    approached and questioned. Lacking the requisite reasonable and articulable
    level of suspicion to conduct an investigatory stop, the detention was
    unconstitutional. 1
    Defendant next argues the court erred when it found that even if
    Accetturo's detention were unlawful, his resistance to arrest served to
    sufficiently attenuate the seized heroin from the taint of an unlawful detention.
    We disagree.
    The trial court's factual finding defendant resisted arrest is supported by
    sufficient credible evidence, to which we must defer. See State v. Gamble,
    
    218 N.J. 412
    , 424 (2014) (citing Elders, 
    192 N.J. at 243
    ). Our review of a trial
    1
    Defendant also argues the investigatory stop cannot be justified on the
    ground it was a field inquiry, see State v. Nishina, 
    175 N.J. 502
    , 510 (2003),
    but the State is not contending that it was and we discern no basis to conclude
    the initial encounter was a field inquiry. See State v. Rodriguez, 
    172 N.J. 117
    ,
    125-27 (2002) (identifying the distinctions between a field inquiry and an
    investigatory stop).
    A-2863-15T3
    15
    court's application of the law to the facts is plenary, see State v. Rockford, 
    213 N.J. 424
    , 440 (2013), but we concur with the trial court's determination that
    Accetturo's resistance to arrest served to attenuate any taint of the unlawful
    detention.
    In Williams, 
    192 N.J. at 4
    , the Court held that if certain factors apply,
    evidence seized incident to a lawful arrest for resisting or obstruction will not
    be suppressed even though the initial stop was unlawful. Here, the trial c ourt
    properly applied and determined that the factors identified in Williams
    permitted the admission of the heroin. Those factors are: "'(1) the temporal
    proximity between the illegal conduct and the challenged evidence; (2) 'the
    presence of intervening circumstances'; and (3) 'particularly, the purpose and
    flagrancy of the official misconduct.'" Williams, 192 N.J. at 15 (quoting State
    v. Johnson, 
    118 N.J. 639
    , 653 (1990)).
    Here, the temporal proximity between the unlawful detention and
    Accetturo's arrest was brief, but "temporal proximity 'is the least
    determinative' factor[]." Id. at 16 (quoting State v. Worlock, 
    117 N.J. 596
    ,
    622-23 (1990)).
    There was no evidence the police acted in bad faith when they sought to
    place Accetturo under arrest. Most importantly, there was an intervening
    criminal act, the most important factor in the attenuation analysis. See
    A-2863-15T3
    16
    Worlock, 
    117 N.J. at 623
    . Specifically, Accetturo's resistance to arrest purged
    the taint from the unconstitutional investigatory stop. See Williams, 
    192 N.J. at 18
    . Further, Accetturo's own movements led to the brick of heroin
    becoming dislodged from his waistband and falling to the ground, allowing the
    detectives to see the brick in plain view.
    Defendant argues Accetturo neither pushed nor was violent toward
    Shepherd when Shepherd attempted to arrest him, and thus did not engage in a
    level of resistance sufficient enough to be an intervening act. Defendant 's
    assertion of the facts is patently belied by the record. Accetturo even admitt ed
    he pushed against a police officer and continued to do so after he was
    handcuffed and while the officer attempted to search him. Accordingly, the
    trial court properly denied defendant's motion to suppress the heroin.
    II
    With some limited exceptions, the material evidence at trial was
    essentially the same as that adduced during the suppression hearing. On
    appeal, defendant makes various contentions about the admission of certain
    evidence, which he claims warrants the reversal of his convictions and a
    remand for a new trial. We separately address his principal contentions; the
    remaining ones are without sufficient merit to warrant discussion in a written
    opinion. R. 2:11-3(e)(2).
    A-2863-15T3
    17
    A
    Defendant complains that during Accetturo's direct examination, the
    State elicited from him that he not only acquired drugs from defendant on the
    day of the subject incident, but also on other occasions as well. Defendant
    argues that when Accetturo stated he purchased drugs from defendant on other
    occasions, the State improperly introduced evidence defendant committed
    other crimes or bad acts, in violation of N.J.R.E. 404(b). Further, defendant
    contends the trial court failed to provide an immediate limiting instruction to
    the jury. Defendant did not object to this testimony or to the court's failure to
    provide an instruction.
    If a party fails to object to the erroneous admission of testimony, the
    reviewing court will disregard the admission of the testimony if it was
    harmless error. However, plain error, defined by Rule 2:10-2 as error "clearly
    capable of producing an unjust result," will not be disregarded by the
    reviewing court. State v. Branch, 
    182 N.J. 338
    , 353 (2005). "The test of
    whether an error is harmless depends upon some degree of possibility that it
    led to an unjust verdict. The possibility must be real, 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. Bankston, 
    63 N.J. 263
    , 273 (1973).
    Furthermore, the reviewing court may infer from trial counsel's failure to
    A-2863-15T3
    18
    object below that counsel recognized the alleged error was of no moment, or
    that counsel made a tactical decision to let the error go uncorrected at trial.
    State v. Macon, 
    57 N.J. 325
    , 337 (1971).
    Here, the admission of the challenged evidence does not warrant a
    reversal, whether analyzed under the harmless or plain error rule. At trial,
    Accetturo testified he contacted defendant in order to purchase Oxycodone
    from him, although he subsequently decided to buy heroin instead. Later that
    day, Accetturo paid defendant $250 for a brick of heroin. It was implicit from
    the evidence defendant sold drugs, because Accetturo knew to contact
    defendant if he wanted to purchase any.
    The introduction of N.J.R.E. 404(b) evidence requires the jury be told
    "precisely the permitted and prohibited purposes of the evidence, with
    sufficient reference to the factual context of the case to enable the jury to
    comprehend and appreciate the fine distinction to which it is required to
    adhere." State v. Marrero, 
    148 N.J. 469
    , 495 (1997) (quoting State v. Cofield,
    
    127 N.J. 328
    , 341 (1992)). Such instructions must ordinarily be issued, both
    when the evidence is admitted and during the closing charge to the jury. 2 See
    State v. Barden, 
    195 N.J. 375
    , 390 (2008). The failure to give a limiting
    2
    Defendant does not raise the issue before us, but a limiting instruction was
    not included in the court's final charge to the jury.
    A-2863-15T3
    19
    instruction is reviewed under the plain error standard when the issue was not
    raised at trial. State v. Burns, 
    192 N.J. 312
    , 341 (2007).
    First, we note a defendant's decision to not request a curative or limiting
    instruction for an alleged N.J.R.E. 404(b) violation suggests he "was making a
    strategic decision to his advantage." State v. Yough, 
    208 N.J. 385
    , 396-97
    (2011). Second, in light of the clear, independent proof of defendant 's guilt in
    this matter, the trial court's error was not of such a nature as to have been
    clearly capable of producing an unjust result. See R. 2:10-2; see also State v.
    Gillispie, 
    208 N.J. 59
    , 93 (2011) (finding no error from the wrongful
    admission of N.J.R.E. 404(b) evidence due to the "overwhelming proof
    submitted by the State throughout each trial of [the] defendants' guilt,
    independent of the other-crimes evidence . . . .").
    B
    Similar to the argument asserted above, defendant contends he was
    prejudiced when Lauren Scandiffio testified he was a "known drug dealer."
    Although the testimony was provided when Scandiffio was being cross-
    examined by defense counsel, at trial, defendant maintained he did not solicit
    this specific testimony and argued he was entitled to a mistrial. The court
    determined a limiting instruction would suffice and delivered the following
    instruction at the conclusion of Scandiffio's testimony:
    A-2863-15T3
    20
    Ladies and gentlemen, before we hear from the State's
    next witness, I want to instruct you that with respect to
    Lauren Scandiffio's testimony that the defendant was a
    known drug dealer, I'm instructing you to totally
    disregard that testimony. It shall play no part in your
    deliberations. The statement is not relevant and,
    frankly, has no evidentiary basis in this case. So,
    please, I'm instructing you to disregard that
    completely.
    On appeal, defendant does not challenge the sufficiency of the limiting
    instruction or complain the trial court erred by not providing a similar
    instruction in its final charge to the jury. Rather, defendant asserts no
    instruction could have cured the harm caused by Scandiffio's testimony, which
    is why defendant claims the court erred by not granting him a mistrial.
    "The decision to grant or deny a mistrial is entrusted to the sound
    discretion of the trial court, which should grant a mistrial only to prevent an
    obvious failure of justice." State v. Harvey, 
    151 N.J. 117
    , 205 (1997).
    Accordingly, this court reviews such a decision for an abuse of discretion,
    upholding the trial court's decision unless manifest injustice would result.
    State v. Labrutto, 
    114 N.J. 187
    , 207 (1989).
    Here, we uphold the court's decision denying defendant a mistrial
    because no manifest injustice will result if we do. There is no reason to
    believe the jury was unwilling or unable to follow the curative instruction.
    State v. Manley, 
    54 N.J. 259
    , 270 (1969). Even if the instruction were
    A-2863-15T3
    21
    inadequate, there was other independent evidence suggesting defendant was a
    drug dealer – Accetturo contacted him to purchase the subject narcotics.
    Finally, as previously noted, there was overwhelming evidence of defendant's
    guilt, making Scandiffio's comment essentially superfluous.
    C
    During Shepherd's testimony, defendant anticipated Shepherd might
    refer to the area of defendant's arrest as a "high drug area" and voiced his
    concern to the trial court, arguing such term was prejudicial. The court
    prohibited the prosecutor from using use this particular term, but permitted her
    to question the police about why they went to the Wawa and the number of
    drug arrests they had made in the area.
    Defendant asserts he was unfairly prejudiced as a result of testimony
    Shepherd thereafter provided about the Wawa and the area around it, because
    it suggested the area was a high crime one. In the challenged testimony,
    Shepherd stated:
    We look for people who park in the parking lot, they
    don't enter the store, they remain, you know for, could
    be five minutes, could be ten minutes, could be longer.
    And just to see if they meet up with other people,
    because generally, in my experience, in being in those
    areas, specifically that area, generally when you pull
    into the Wawa, people go in and make a purchase . . .
    and sometimes when we observe people in those
    parking lots and they don't go in, we have made prior
    A-2863-15T3
    22
    arrests in that parking lot pertaining to the use,
    distribution or possession of controlled dangerous
    substances.
    Defendant also claims he was similarly prejudiced when Forrester
    testified he had made over fifty drug-related arrests in the area. In addition,
    defendant asserts Shepherd's and Forrester's testimony was irrelevant, because
    it had no tendency to prove defendant possessed or distributed drugs in this
    matter. Defendant acknowledges no reported New Jersey case holds the
    challenged testimony improper.
    We need not address the contentions defendant asserts because, in light
    of the substantial evidence of defendant's guilt, the admission of the subject
    testimony was harmless and incapable of leading to an unjust verdict. See
    State v. Bankston, 
    63 N.J. 263
    , 273 (1973).
    D
    During trial, there was evidence of the following undisputed facts:
    Accetturo pled guilty to possession of heroin and resisting arrest, for which he
    was sentenced to a term of probation; Scandiffio pled guilty to possession of
    heroin, aggravated assault, and obstruction, and was admitted into the Pretrial
    Intervention Program; when Accetturo and Scandiffio pled guilty, both agreed
    to provide truthful testimony against defendant.
    A-2863-15T3
    23
    On appeal, defendant asserts he was denied the effective assistance of
    counsel because his attorney failed to elicit from Accetturo and Scandiffio that
    their lenient sentences hinged upon they testify truthfully against defendant.
    Defendant also complains counsel neglected to request a cooperating witness
    charge, but the record is clear counsel specifically stated he was opposed to
    such a charge and it was not in fact delivered to the jury. We conclude the
    claims against counsel for alleged ineffectiveness are premature.
    Claims of ineffective assistance of counsel are typically not reviewed on
    direct appeal. See State v. Hess, 
    207 N.J. 123
    , 145 (2011) (quoting State v.
    Preciose, 
    129 N.J. 451
    , 460 (1992)) ("[W]e routinely decline to entertain
    ineffective-assistance-of-counsel claims on direct appeal because those claims
    involve allegations and evidence that lie outside the trial record."). Only when
    the ineffective assistance claim can be determined on the trial record alone is it
    appropriate to dispose of the issue on direct appeal. State v. Castagna, 
    187 N.J. 293
    , 313 (2006). This is not the case here, because the reasons why
    counsel declined to cross-examine Accetturo and Scandiffio about their
    respective plea agreements and why he objected to the cooperating witness
    charge lie outside of the trial record.
    A-2863-15T3
    24
    To the extent we have not addressed any argument asserted by
    defendant, it is because we deemed it without sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(2).
    Affirmed.
    A-2863-15T3
    25