STATE OF NEW JERSEY VS. ANDRE HIGGS (15-11-2648 AND 15-11-2650, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-1010-17

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDRE HIGGS,

          Defendant-Appellant.


                   Argued May 6, 2020 – Decided May 14, 2021

                   Before Judges Fuentes, Haas, and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket Nos. 15-11-2648 and
                   15-11-2650.

                   John J. McMahon, attorney for appellant (John J.
                   McMahon and Lois De Julio, of counsel and on the
                   briefs).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      On November 6, 2015, an Essex County grand jury returned Indictment

No. 15-11-2648 charging defendant Andre Higgs with murder, N.J.S.A. 2C:11-

3(a)(1) and (2), (count one); third degree aggravated assault, N.J.S.A. 2C:12 -

1(b)(9), (count two); second degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b)(1), (count three); second degree possession of a firearm for an

unlawful purpose, N.J.S.A. 2C:39-4(a), (count four); second degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a), (count five); third degree hindering

apprehension, N.J.S.A. 2C:29-3(b)(1), (count six); and third degree possession

of a controlled dangerous substance, N.J.S.A. 2C:35-10(a), (count seven). On

the same date, an Essex County grand jury1 returned Indictment No. 15-11-2650,

charging defendant with first degree unlawful possession of a weapon N.J.S.A.

2C:39-5(j), (count one); and possession of a weapon by a convicted felon,

N.J.S.A. 2C:39-7(b), (count two).


1
  Although it is not clear from the record whether this indictment was returned
by the same grand jury or by a second grand jury, this uncertainty is legally
inconsequential. As our Supreme Court recently reaffirmed, "the grand jury
does not conduct 'a mini-trial,' but 'an ex parte inquest' -- it is 'an accusatory and
not an adjudicative body.'" State v. Bell, 

241 N.J. 552

, 559 (2020) (quoting
State v. Hogan, 

144 N.J. 216

, 235 (1996)).
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                                          2
      Defendant was first tried before a petit jury on the charges reflected in

Indictment No. 15-11-2648, and was convicted of murder, third degree

aggravated assault, and the charges related to unlawful possession and use of a

handgun. The jury found him not guilty of second degree endangering the

welfare of a child. On June 23, 2017, defendant stood trial on the two charges

reflected in the second indictment. The jury found defendant guilty on both

counts. The trial judge conducted the sentencing hearing on September 7, 2017.

      On the murder conviction, the judge sentenced defendant to a term of life

imprisonment, with an eighty-five percent period of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.2 The judge imposed

a consecutive ten-year term with five years parole ineligibility on the conviction

for certain persons not permitted to have a weapon; and a twenty-year concurrent

term, with ten years parole ineligibility, on the conviction for unlawful

possession of a weapon by a previously convicted felon; and a concurrent term

of five years on the conviction for hindering apprehension. Finally, the court

merged the possession of a handgun for an unlawful purpose conviction with the




2
  In order to calculate the minimum term of parole ineligibility under NERA, a
sentence of life imprisonment in this case is deemed to be seventy-five years.
N.J.S.A. 2C:43-7.2(a)
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                                        3
murder conviction, and dismissed the counts involving aggravated assault and

possession of a controlled dangerous substance.

      In this appeal, defendant raises several arguments that allege the judge

mistakenly exercised his discretionary authority when he admitted certain

evidence at trial that should have been excluded as unduly prejudicial under

N.J.R.E. 404(b). Defendant also challenges the aggregate sentence imposed by

the judge as unduly excessive and shockingly punitive, and seeks a remand for

the court to impose a just sentence. Although defendant is represented by

counsel in this appeal, he has nevertheless submitted a pro se supplemental brief

that raises a number of arguments attacking the validity of the conviction.

      After reviewing the voluminous record developed before the trial court,

and mindful of prevailing legal standards of appellate review, we reject

defendant's arguments and affirm. The following facts are derived from the

evidence presented at trial.

                                       I.

      On May 1, 2015, defendant drove to the residence of Latrena May, located

on Tremont Avenue in East Orange. May shared this apartment with her four-

year-old daughter, of whom defendant is the father. East Orange Police Officer

Kemon Raysan Lee was on routine patrol that night in a marked police vehicle.


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Lee testified that at approximately 10:15 p.m., he drove past May's residence

and heard a woman's voice scream "officer, officer" approximately four or six

times. He activated the police car's overhead lights, made a U-turn, and pulled

up in front of May's residence.

      As Lee stepped out of the police car and onto the street, he saw May

"standing at the top of the stairs to [his] left." He also saw defendant standing

"really close to [May] with very little space in between them." According to

Lee, defendant and May were standing on the part of the residence that was six

steps above the sidewalk, where he was standing. As he approached the stairs,

Lee unholstered his service handgun with his right hand, and with his left hand

"ordered" May to come down to the sidewalk where he was standing. Defendant

fired three shots with his .45 caliber pistol, striking May at pointblank range.

Lee returned fire, discharging a total of nine rounds from his .40 caliber service

handgun. Defendant was shot a total of four times; all of his bullet wounds were

located on the upper side of his legs.

      Lee testified that he did not see that defendant had a handgun when he

first arrived at the scene in response to May's calls. According to Lee, the first

time he realized defendant had a handgun was when defendant shot May. The

marked police car Lee drove on the day of the shooting was equipped with a


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                                         5
dash video camera. The video recording from this camera was played to the jury

and was used by both defense counsel and the prosecutor to question Lee. Lee

provided the following account of his actions after defendant shot May:

            At that time I . . . observed the defendant fall on the
            floor inside the door with the gun in his right hand and
            raised up.

                  ....

            I moved to the left to get a better shot at him.

            Q. And what did you do with your gun?

            A. I fired more shots.

            Q. Okay. So to be clear, who is it that you saw still
            holding the gun when you shot between . . .

            A. The defendant.

      Lee testified that defendant fell on the floor, just inside the door of May's

apartment. Defendant thereafter was able to go inside the apartment and close

the door.

      The State called Joseph Jackson, who resided on the second floor of the

same property. Jackson testified that on the day of the shooting he was with a

woman named Reshanda Richmond, her son, and one of his friends. Jackson

provided the following account of what he witnessed:



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                                        6
            I was sitting on the couch watching the game and we
            heard some shots and they sounded real [sic] close so I
            went to the window and I saw the cops in the front of
            the house and I was letting them know that there was a
            family upstairs.

            Q. Okay. Prior to hearing the shots, did you hear
            anything that was happening on the first floor?

            A. No.

      At this point, the prosecutor provided Jackson with a transcript of a

statement he gave to law enforcement investigators on May 2, 2015, the day

after the shooting. After Jackson finished reading to himself certain sections of

the transcript, the prosecutor resumed his direct examination.

            Q. What happened?

            A. Well, just before the gunshots, there was a little bit
            of yelling.

            Q. Okay. This yelling, was it a man's voice or a female's
            voice that was yelling?

            A. It was more like a female voice. 3

      Jackson testified that after he was "fully" awake, he heard a female voice

coming from the first-floor hallway yelling, "[n]o, stop." He heard gunshots

shortly thereafter, and saw a trail of blood from the entrance of the property to


3
  Jackson testified that he dozed off watching the basketball game on television
and was awoken at approximately ten o'clock at night "by a little bit of yelling."
                                                                            A-1010-17
                                        7
the first-floor apartment. The two children who were in Jackson's apartment at

the time came running into the room. He told them "to get down" and went to

the front of the house to see what had occurred. Jackson testified he looked out

from his apartment window and "saw the cop[s] out there and they told me to

stay in the window after that because I told them there was a family upstairs."

      According to Jackson, when he looked down the building's "outside stairs"

that led to the first floor, he saw May's body "at the bottom of the steps." Jackson

knew defendant as "the landlord of the building." Jackson testified that at some

point during this ordeal, he heard defendant "calling out to Ms. Richmond."

Jackson testified that "[c]lose to the end of the situation [May's four-year-old]

daughter came upstairs and knocked on the door." This prompted him to apprise

the police officers at the scene of the child's presence "so they won't be shooting

into the house."

      Reshanda Richmond and her son lived in the same apartment with

Jackson.    She testified that at approximately 10:15 p.m., she heard a

"commotion" and heard May yelling. When she walked over to the window, she

saw "the police come up and then that's when I heard Mr. Higgs say, '[t]hat's my

man,' and then the cops say, I'm not your man,' and I just backed off the window

altogether." On further examination, Richmond clarified that she was in her


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                                         8
bedroom when she first heard the "commotion" and then heard May saying

"[c]all the police," more than once.

      Over defense counsel's objection, Richmond testified that she saw

defendant and May "arguing." When asked to explain how she reached this

conclusion, Richmond responded: "Body language . . . [they were] [i]n front of

the door, by the rail." On cross-examination by defense counsel, Richmond

corroborated Officer Lee's account of what cause him to immediately turn his

patrol car around to respond to May's call.

            Q. Okay. And can you estimate for us[,] I know it was
            two years ago, but can you estimate for us
            approximately how long it was seconds, or minutes,
            whatever term you want to use, whatever measure of
            time you want to use how long it was from the time that
            you heard the words "police" till you saw the police car
            outside the window?

            A. It was like immediately as soon as I . . . opened the
            window, the police was already out there.

            Q. Okay. So you heard -- when she yelled, "Police.
            Police," the police were almost there.

            A. Yes.

            Q. Okay. And before that you hadn't [sic] hear
            anything, correct?

            A. Correct.



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                                       9
      Juliet Kerr lived on the second floor of the building next to May's

apartment. She testified that at approximately 10:00 p.m. on October 1, 2015,

she heard "loud talking . . . like somebody was arguing" coming from in front

of the house. When she looked out her apartment's window, she saw a police

car parked right in front of May's apartment. Kerr explained that from this

particular window in her apartment, she can see the entire area of the front part

of May's building, including the steps and brown entrance door.

      Kerr testified she saw a woman in the doorway of the building wearing

"[j]ust her underwear and a bra." There was an argument coming from inside

somewhere by the brown door. Kerr saw May say something to the police

officer as the officer walked toward May and defendant.

            Q. Okay. And what happened as the cop was walking
            towards them?

            A. She was saying something to him, the cop.

                  ....

            The cop was kind of turning around slowly, you know,
            and I was like . . . okay, the cop is there, everything is
            fine.

                  ....

            Q. Okay. What happened next?



                                                                           A-1010-17
                                       10
            A. As soon as he was -- she said something like -- she
            said a name. I can't remember the name.

                  ....

            But she said, stop.

            Q. Okay. The female in the underwear said stop?

            A. The female in the underwear said stop.

            Q. And what happened next?

                  ....

            A. I heard a loud bang (indiscernible), you know. And
            I got scared because I thought when I heard, I know it
            was a gunshot. But then I heard a bang. I saw smoke
            coming where the person was standing. When I heard
            the bang . . .

                  ....

            I saw the smoke. I heard boom. And I look, and I saw
            the person on the ground.

      The person laying on the ground bleeding profusely was May, whom

defendant had fatally shot three times with a .45 caliber handgun while standing

less than three feet away from her. Emergency medical personnel responded to

the scene. However, because the location where May's body fell remained an

active crime scene, the commanding officer concluded it was not safe to permit




                                                                          A-1010-17
                                      11
the medical team to attend to her wounds. Joseph Householder, one of the

paramedics who responded to the scene, testified as follows:

            We initially made contact on scene and we ended up
            staging for approximately, if I recall, like 45 minutes,
            around there, until we were told that the scene was
            secure.

            At that point, we went to the female patient, who was
            lying outside on the ground to assess her and found her
            to be without any signs of life. At that point . . . we
            performed a pronouncement time of death for her.

      East Orange Police Captain Berkely Jest of arrived at the scene shortly

after the shooting and assumed command of the situation. Defendant was

wounded when Officer Lee returned fire after defendant shot May. However,

he was inside the building and remained armed with the same .45 caliber

handgun he used to kill May. With this in mind, Jest first attempted to deescalate

the situation by persuading defendant to surrender himself. After this approach

failed, Jest ordered the officers to execute a tactical entry into the property.

Upon entry, the officers found defendant lying in the hallway of the first floor,

bleeding from the bullet wounds in his lower extremities. Defendant was then

taken into custody and treated at the scene by the emergency medical staff.

      Michael Recktenwald of the Essex County Prosecutor's Office's Internal

Affairs Bureau, was the lead investigator in this case and testified as a defense


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                                       12
witness. Recktenwald determined that Officer Lee acted properly and in a

justifiable manner when he fired his weapon in response to defendant's illegal

use of deadly force. The New Jersey Attorney General agreed with the Essex

County Prosecutor's Office findings and conclusions. In his statement to the

investigators, Lee did not mention at what point in his interaction with defendant

he withdrew his service weapon from its holster. Recktenwald agreed with

defense counsel's characterization that Lee "seemed surprised" when he saw the

videorecording from his dash camera that showed he was holding his service

handgun in his hand when he exited the car.

      Dr. Li Wang, the North Regional Medical Examiner, performed the

autopsy on May's body. By stipulation from defense counsel, the trial judge

admitted Dr. Wang as an expert witness in the field of forensic pathology. Dr.

Wang confirmed Officer Lee's observation that May's first wound was the result

of gunshot fired "within 18 to 24 inches" from her body. The trajectory of this

one bullet was sufficient to cause a fatal injury. Dr. Wang explained that the

projectile perforated the aorta, the largest artery in the human body, continued

through both lungs, exited at the right side of her chest, and reenter ed the right

upper arm, fracturing the right side of the humerus, the bone between the

shoulder and elbow.


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                                       13
      Dr. Wang opined that the second gunshot wound was also fatal because

the bullet went through May's liver, spleen, and abdominal wall. Based on hi s

forensic examination and experience, Dr. Wang opined the second bullet was

fired from a distance of "about 18 to 24 inch[es], but probably a little bit further

away compared to the first injury." The third gunshot wound perforated the left

side of her abdomen and lacerated the upper part of the left kidney. The bullet

crossed the midline of the body traveling below the skin surface.

      Defendant testified in his own defense. He described himself as a self-

employed property manager and investor. When asked by his attorney to clarify

what he meant by "investments," defendant stated:

            I purchase properties, I fix them, I sell them, I purchase
            properties, I fix them and I keep selling them for
            investment purposes.

            Q. And where -- what general geographic vicinity are
            these properties in?

            A. Basically, Newark, East Orange. I had properties in
            Jersey City at one point in time. Normally, they're
            outside of the urban areas.

      Defendant met May in 2007, when she was visiting an apartment her sister

rented in one of defendant's properties.        Defendant first characterized his

relationship with May as "friendly."         It thereafter evolved into a "dating

relationship" and eventually a "sexual relationship." He described May as an

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                                        14
educated woman with a master's degree education. At the same time defendant

was cultivating this relationship with May, he was involved in a long-term

relationship with a woman named Oneida Tretola, with whom he had three

biological children. At the time this case went to trial in 2017, defendant

referred to Tretola as his "fiancée," with whom he had had a romantic

relationship for "approximately [twenty] years."      Furthermore, as defense

counsel made clear:

            Q. Now, while you -- you knew Latrena [May]
            obviously up through 2015, correct?

            A. Yes, I did.

            Q. Now, this was during a time when you were still, as
            you are today, still in a relationship with Oneida
            [Tretola]. Is that true?

            A. Yes, it's true.

      Defendant testified that May and their daughter began living in the

apartment ten months before the shooting occurred on May 1, 2015, meaning

May moved in on or around August 1, 2014. The property is a two-family

dwelling; May occupied the first-floor apartment. Defense counsel eventually

questioned defendant about an incident that occurred on March 25, 2015, thirty -

seven days before the shooting. Defendant claimed that on the evening of March

25, 2015, "me and Latrena [May] was going back and forth about me basically

                                                                          A-1010-17
                                      15
being with her and me leaving Oneida [Tretola]. And I wasn't doing that."

Defendant claimed that May became "upset."

            Q. And when she became upset, what did you do?

            A. You know, after, you know, she did what she did, I
            grabbed her by shoulders. I told her, I said, Latrena, you
            need to stop, calm down, you always taking things a
            little too far.

            Q. Okay. Now, getting back to -- now, did you ever at
            any time choke her on that day?

            A. No, I didn't choke her. Not at all. I never choked
            Latrena. Never.

      Against this backdrop, defense counsel asked defendant to describe the

events that led to May's death on May 1, 2015. According to defendant, May

called him in the afternoon of May 1, 2015 and told him to bring money for their

daughter. She also wanted to discuss the status of their relationship. Defendant

testified he arrived at the Tremont Avenue apartment at approximately 10:00

p.m. May was sitting up in bed in her bedroom watching television. He gave

her $350 to cover some child expenses.

      At this point, May asked defendant if he was staying. Defendant testified

he told her he was not staying. This prompted an angry response from May in

which she accused him of not caring for her or their child. Defendant claimed

that he made clear to May that he was never going to leave Oneida [Tretola].

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                                       16
He also expected her to move out of the apartment at the end of the lease. 4

According to defendant, she became "very belligerent" and told him he was

"going to cause her to do something to me."

              Q. Okay. And did you understand what that meant?

              A. Well, I took it as [an] idle threat. I took it as she was
              just upset. She was mad and voicing her opinion. But –

              Q. And what happened after she made that statement?

              A. She pulled her gun out from under her pillow.

              Q. From under the pillow?

              A. Yes.

              Q. Okay. And now, had you ever seen this gun before?

              A. Yes, I had.

              Q. On how many occasions?

              A. Actually, that was actually my third time visually
              seeing that gun. 5




4
    The appellate record does not include a copy of the lease.
5
   Defendant testified that the first time he saw this particular handgun was
"before she moved to Scotch Plains;" the second time was when May moved
into the apartment on Tremont Avenue "towards the middle or the end of July"
2014. He denied having a handgun in his possession on May 1, 2015.


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                                         17
      Defendant testified he told May he was leaving and walked out of the

bedroom. May followed him out from the bedroom wearing only "panties and

halter." In response to defense counsel's questions, 6 defendant testified that May

continued to follow him onto the front porch, which defendant described as

being "four-feet-three-inches wide . . . at the railings" and "roughly three and a

half feet" front-to-back. He testified that he "grabbed the weapon out of her

hand" as soon as she stepped out onto the porch, not out fear, but because he

deemed it "a bit extreme."

            Q. Now, when you . . . say you snatched it out of her
            hand. What happened after that?

            A. Well, I started scolding her. I started telling her like,
            is you crazy, I mean, you out here in your panties, first
            of all, second of all, you got this gun in your hand,
            you're risking your career. I used to tell her when she
            want to fight with Oneida, like, you got too much to
            lose, you know, you should think before you do things,
            or stuff ain't that serious for you to be taking it over the
            top like you take it over the top. I mean, I did
            everything I was supposed to done [sic] for her.

            Q. Now, what was your intention? What were you going
            to do with that gun now that it was in your hand? What
            was your intention?



6
   Before reaching this part of his testimony, defense counsel preemptively
questioned defendant about his prior criminal convictions in accordance with
N.J.R.E. 609.
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                                       18
A. . . . I never even intended to have the gun in my
hand, first of all. Right then and there, I was more or
less trying to tell her about herself. That was my first
thoughts.

Q. What's the next thing that happened while you were
on the porch?

A. Officer Lee had turned the corner. I know him now
as Officer Lee. But the police car came around the
corner. I didn't even notice the police car coming
around the corner.

Q. How was your attention brought to the police car?

A. Because as the police car was driving past us,
Latrena was like, police, police.

Q. And who was she saying that to?

A. She was alerting me that the police was right there.

Q. Okay. And did you see her signal in any way to the
police officer?

A. She never signaled that -- she never signaled that
cop. Never once.

Q Now, . . . when she told you . . . brought your
attention to the fact that there was a police car on the
block, did you look to see the police car?

A. It was probably my biggest mistake . . . I started
watching the cop.

[(Emphasis added).]



                                                           A-1010-17
                          19
      According to defendant, May wanted to go back in the house as soon as

Officer Lee made a U-turn and activated the overhead lights of his patrol car.

As the police car stopped in front of the residence, defense counsel asked

defendant: "what are your thoughts as to what was going to happen?" Defendant

responded: "I was like, I got a gun in my hand, you got me in this situation . . .

them was [sic] my initial thoughts." Defendant also stated he was trying "to

block" May so the officer "wouldn't see how she was outside because I know

that would have made him stop."

      Defendant provided the following account of his interactions with Officer

Lee while allegedly standing in front of May to conceal her state of undress:

            Q. Okay. Now . . . at some point you see Officer Lee
            exit his car, correct?

            A. Yes, I do.

            Q. And was he holding anything in his hand?

            A. He was reaching for his gun the minute he was trying
            to get out of the car. I mean, he was basically grabbing
            his gun before he was out of the seat. Porch and the
            car, it's like from the porch to the street, six steps, let's
            say a foot each step. To the sidewalk, three foot.
            Another two and a half foot right there with the curb --
            I mean, with the grass part, the little curb. Six –

            Q. Six, three, two . . . and a half feet?



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                                        20
            A. We only about 11 feet to the initial car from where
            we was actually at. So the proximity is very close. We
            . . . wasn't away from each other. We . . . was very
            close . . . .

      At defense counsel's request, defendant stepped down from the witness

stand to respond to questions related to what is depicted in the videorecording

taken by the patrol car's dash camera.

            Q. Okay. Now, we just saw Officer Lee walk past the
            front of his patrol car, correct?

            A. Yes.

                  ....

            A. When -- well, the conversation was basically Officer
            Lee replying to me as Officer Lee is hitting the steps. I
            mean, the sidewalk. The sidewalk part.

            Q. Okay. Before we get to that, did Officer Lee say
            anything to Ms. May at any time once he exited his
            patrol vehicle?

            A. He never said nothing. Latrena and Officer Lee
            never had two words with each other besides her yelling
            to him, stop.

      Defendant testified he made the first attempt to speak with Officer Lee.

            When I saw him hopping out the car and reaching for
            his weapon, I yelled to him, I said, my man, you ain't
            going to believe this. By that time, Officer Lee was
            around the front of his car.

                  ....

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                                         21
            Well, patrol car is here. Patrol car is here. Officer Lee
            exited the patrol car. He's coming around. The minute
            he got out, I'm yelling to him, my man, you ain't going
            to believe this. By then, Officer Lee's in front of his
            car. He said, I'm not your M-ing F-ing man, come down
            here.

            [I] was trying to alert him that I had a weapon in my
            hand.

            [(Emphasis added).]

      Defendant testified that Officer Lee did not respond positively to his

advances. The Officer just repeated his command to defendant to "come the F

down." However, instead of heeding Officer Lee's command, defendant "spun

around and I said, I got a gun." Defense counsel provided for the record the

following description of defendant's posture:

            For the record, Mr. Higgs is standing up -- standing
            with his arms out to his sides with his hands upraised,
            his elbows about a foot below his shoulders with his
            forearms and fingers pointing up, for the record.

      Although he was holding the handgun when he faced Officer Lee,

defendant testified that he was pointing the weapon "straight up." Defendant

characterized this alleged gesture on his part as "[a] surrendering position."

According to defendant, Officer Lee responded by firing his service weapon

without any further verbal comment or command.


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                                      22
             Q. What happened next?

             A. When I heard the shot, I tried pushing Latrena [May]
             out of the way. From there . . . everything just went
             crazy. It went -- I went black.

             Q. Okay . . . [w]hat did you experience, to the best of
             your recollection?

             A. Felt like I was being beat with a sledgehammer . . . .

      Defendant testified that he was struck four times by shots fired by Officer

Lee. In response to his attorney's questions, defendant pointed to where he was

shot. Defense counsel verbally described for the record the locations indicated

by defendant: one bullet struck his mid-thigh in the front of his left leg; two

bullets struck the upper right side of his thigh; and one bullet struck the lower

right side of his thigh.7

      Defendant testified that when Officer Lee began to shoot, he fell back on

his buttocks to the porch. He thereafter pushed or slid back with his hands,

maneuvering his body to get into the foyer of the building, still holding the gun

in his hand. Despite being in severe pain, defendant claimed he maneuvered


7
  Defendant testified that the physicians who treated him at the hospital after
the shooting told him one of the bullets severed the femoral artery in his left leg.
"They said they didn't know how I survived because I supposed to bled [sic]
out." This prompted an objection from the prosecutor, which the trial judge
sustained.
                                                                              A-1010-17
                                        23
himself "back into the foyer . . . [as his] mind [was] just screaming with pain,"

and "tossed the gun over towards the supplies." Despite the uncontested medical

evidence showing May was shot three times at close range with the .45 caliber

handgun held by defendant throughout this event, defendant testified that he had

no recollection of ever firing the gun.

      Defendant pushed himself on the floor until he reached his four-year-old

daughter's bedroom. The child was asleep. He testified that he woke her up;

told her to put on her shoes and go to the upstairs apartment where Reshanda

Richmond resided. Defendant testified that he yelled to Richmond to come and

get the child.

                                          II.

      Against this factual record, defendant raises the following arguments.

             POINT I

             THE TRIAL COURT ERRED AND ABUSED ITS
             DISCRETION IN ADMITTING INTO EVIDENCE
             AN ALLEGED PRIOR INCIDENT WHERE
             DEFENDANT PUT HIS HANDS AROUND
             DECEDENT'S NECK AND CHOKED HER.

             POINT II

             THE STATE COMPOUNDED THE ERROR IN
             ADMITTING THE N.J.R.E. 404(b) TESTIMONY BY
             ITS  IMPROPER     USE      AND     SPURIOUS
             ARGUMENTS (Not Raised Below).

                                                                           A-1010-17
                                          24
POINT III

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS
COMPROMISED WHEN THE COURT PERMITTED
A LAW ENFORCEMENT OFFICER TO USURP THE
FUNCTION OF THE JURY BY OFFERING HIS
OPINION THAT VIDEO FOOTAGE DEPICTED
DEFENDANT WITH A GUN IN HIS WAISTBAND.

POINT IV

ADMISSION INTO EVIDENCE OF NUMEROUS
GRUESOME, IRRELEVANT AUTOPSY AND
CRIME SCENE EXHIBITS PREJUDICED THE JURY
AND DENIED DEFENDANT HIS RIGHT TO A FAIR
TRIAL.

POINT V

ALLOWING    THE    STATE  TO   IMPEACH
DEFENDANT WITH HIS REMOTE CONVICTIONS
CONSTITUTED AN ABUSE OF DISCRETION AND
DENIED HIM A FAIR TRIAL.

POINT VI

DEFENDANT'S RIGHT OF CONFRONTATION
WAS IMPROPERLY LIMITED WHEN THE TRIAL
COURT SHIELDED OFFICER LEE FROM BEING
CROSS-EXAMINED ON HIS PRIOR POLICE
SHOOTINGS AND SUBSEQUENT INTERNAL
AFFAIRS INVESTIGATIONS.

     A. Defendant Was Denied Access To
     Discoverable Material Relevant To Officer
     Lee's Inherent Bias, Interest And Motive.


                                                 A-1010-17
                       25
                  B.    Defendant Should Have Been
                  Permitted To Cross-Examine Officer Lee
                  About His Prior Shootings to Expose Any
                  Bias, Interest Or Motive As Well As To
                  Explain His Actions On May 1, 2015.

            POINT VII

            DEFENDANT IS ENTITLED TO A RESENTENCING
            BECAUSE THE TRIAL JUDGE FAILED TO
            FOLLOW HE REQUIREMENTS OF THE CODE OF
            CRIMINAL JUSTICE IN IMOSING SENTENCE.

                  A.    The Trial Judge Failed To Properly
                  Identify And Assign Weight To
                  Aggravating Factors.

                  B.   The Trial Judge Failed To Find
                  Appropriate Mitigating Factors.

                  C.    The Trial Judge Improperly Found
                  That The Sentence On Count 2 Of Ind. 15-
                  11-2650 Must Be Served Consecutively.

Appellant raises the following arguments in a pro se supplemental brief:

            POINT I

            THE TRIAL COURT ERRED AND ABUSED ITS
            DISCRETION IN ADMITTING INTO EVIDENCE
            AN ALLEGED PRIOR INCIDENT WHERE
            DEFENDANT PUT HIS HANDS AROUND
            DECEDENT'S NECK AND CHOKED HER.

            POINT II

            TRIAL COURT ALLOWED THE STATE TO
            INTRODUCE AN APPLICATION FOR CHILD

                                                                           A-1010-17
                                     26
SUPPORT   IN   REBUTTAL   TO   IMPEACH
DEFENDANT'S CREDIBILITY CONSTITUTED AN
ABUSE OF DISCRETION.

POINT III

TRIAL COURT ABUSED ITS DISCRETION
ALLOWING THE STATE TO PLAY ALL OF A
POLICE DISPATCH RECORDING MARKED S-
79A OVER DEFENSE'S CONTINUED OBJECTION.

POINT IV

THE TRIAL COURT ERRED IN RULING THAT THE
WARRANTLESS SEARCH OF THE HALLWAY OF
164 TREMONT AVENUE WAS VALID.

POINT V

PROSECUTOR'S       IMPROPER    ARGUMENT
SUPPORTED     BY     DETECTIVE   GREEN'S
INADMISSIBLE TESTIMONY THAT THE OBJECT
DEPICTED IN S-30 IS DEFENDANT WITH A GUN
CONSTITUTES REVERSIBLE ERROR.

POINT VI

PROSECUTOR'S               UNCORRECTED
MISSTATEMENT OF LAW COMPARING AN
INVOLUNTARY ACT WITH AN ACCIDENT "AN
[   ]" AS STATED TO THE JURY CONSTITUTES
REVERSIBLE ERROR.

POINT VII

THE CUMULATIVE EFFECT OF THE ERRORS
RAISED IN DEFENSE COUNSEL'S ORIGINAL
BRIEF, AS WELL AS THE PREVIOUS POINTS IN

                                           A-1010-17
                  27
            THIS SUPPLEMENTAL BRIEF,                  WARRANTS
            REVERSAL OF THE CONVICTION.

                                       A

      The evidence that established the cause of May's death is substantially

undisputed. The testimony of Dr. Wang, the Medical Examiner, established that

the first .45 caliber bullet that struck May's body perforated her liver, spleen,

and abdominal wall. This single bullet was therefore sufficient to cause the

massive fatal injuries that led to her death. Despite defendant's testimony

denying any responsibility, there is overwhelming evidence to support the jury's

verdict that he shot and killed May.

      Defendant nevertheless argues in Point I that the trial court committed

reversible error and abused its discretion when it granted the State's motion to

present evidence under N.J.R.E. 404(b) of a prior incident of domestic violence

perpetrated by defendant against May. The State offered this evidence to rebut

defendant's claim that he shot May involuntarily. Defendant argues the court

erred because defendant did not raise a state of mind or an accidental shooting

defense.

      We disagree with defendant's argument and affirm.           Essex County

Prosecutor's Office Detective Kevin Green was the on-call homicide detective

on May 1, 2015. He arrived at the scene of the shooting at approximately 11:30

                                                                           A-1010-17
                                       28
p.m. and observed blood droppings that led up to the front door, and blood

spatter on the door itself. A trail of blood also led from the foyer to the first-

floor apartment. Once inside the apartment, Greene noticed "a lot of blood"

leading into what looked like a little girl's room.

      At the suppression hearing, Green testified that the search of the apartment

took place one to two hours after the shooting. He did not consult with the on-

call prosecutor before searching the area without first securing a warrant. He

testified that he proceeded in this fashion because the property, including the

apartment, was a crime scene where a homicide had just occurred. Green

concluded the situation established "exigent" circumstances because the

handgun used in the shooting had not been located. He stated: "There's . . . [s]till

one kid upstairs along with two adults. There were people in the home with a

missing gun. That's very exigent."

      Detective Michael Mossa testified that he and the other officers who took

part in the search conducted a walk-through of the crime scene to identify items

considered to be of evidentiary value. Mossa helped move a bag of rock salt

that was in the hallway, and discovered a .45 caliber semi-automatic handgun.

The weapon was not loaded. Green admitted that the handgun was not found in




                                                                              A-1010-17
                                        29
plain view. He added, however, that: "They entered the foyer. They were

looking at ballistic evidence in the foyer and . . . discovered the gun."

      The judge denied defendant's motion to suppress the handgun. As a

threshold issue, the judge found no basis to conclude the warrantless search was

permissible under exigent circumstances:

            [T]he . . . Crime Scene [Unit] . . . got there at about
            11:30 at night, and at that time [defendant] had already
            been removed from the residence and taken to the
            hospital approximately a half hour before the officers
            started to do their investigation. And so . . . the
            exigency really is no longer there, because [defendant]
            is no longer there.

      The judge held, however, that defendant did not have a reasonable

expectation of privacy in the common area of a two-family dwelling. The judge

found that, as the owner of the building, while defendant had certain rights to

inspect common areas of the property, "he does not have any reasonable

expectation of privacy . . . in a particular tenant[']s apartment or in this case in

the common hallway."

      The motion judge also relied on the doctrine of inevitable discovery in

denying the motion to suppress:

            [The] Crime Scene [unit] . . . [is] obviously required to
            . . . go through the crime scene methodically, retrieve
            all the evidence that there may be, [and] photograph
            everything they believe is to be [sic] relevant material

                                                                              A-1010-17
                                        30
             to preserve it. And ultimately they would have and they
             did . . . locate the . . . weapon.

              So . . . it would have been found regardless. But since
             you have no expectation of privacy, as I indicated, the
             evidence . . . will not be suppressed.

        When we review a trial court's decision to grant or deny a motion to

suppress, we are bound to defer to the trial court's factual findings that are

supported by sufficient credible evidence in the record. In Re J.A., 

233 N.J.

432

, 445 (2016). However, we review de novo the trial court's legal conclusions.

Ibid.

The Fourth Amendment

to the United States Constitution and Article I,

Paragraph 7 of our State Constitution require police officers to "obtain a warrant

before conducting a search, unless the search falls into a recognized exception

to the warrant requirement." State v. Sencion, 

454 N.J. Super. 25

, 32 (App. Div.

2018). However, our Supreme Court has expressed "a clear preference for

police officers to secure a warrant before entering and searching a home." State

v. Wright, 

221 N.J. 456

, 468 (2015) (quoting State v. Brown, 

216 N.J. 508

, 527

(2014)). Thus, where it is practical to do so, law enforcement agents are

generally required to secure a warrant before conducting a search because, in

most cases, warrantless searches of private dwellings are presumptively invalid.

State v. Lamb, 

218 N.J. 300

, 315 (2014).

                                                                            A-1010-17
                                       31
      It is well-settled that a defendant challenging a warrantless search must

first establish that he or she has a reasonable expectation of privacy in the

searched location. State v. Hinton, 

216 N.J. 211

, 228 (2013). In a multi-

occupancy premises, "none of the occupants can have a reasonable expectation

of privacy in areas that are also used by other occupants." State v. Penalber, 

386

N.J. Super. 1

, 10 (App. Div. 2006) (quoting State v. Johnson, 

171 N.J. 192

, 209

(2002)). Defendant did not reside in this two-family property. The motion judge

correctly held that he did not have a reasonable expectation of privacy in the

hallway of this property.

      In the interest of clarity, we also hold the search was valid under the

emergency aid doctrine. The following material facts are not disputed. The

police officers searched the building nearly one-and-a-half hours after the

shooting. By that time, defendant had been removed from the scene. There

were thus no exigent circumstances.         There is no broad "murder scene"

exception to the warrant requirement, Mincey v. Arizona, 

437 U.S. 385

, 392-95

(1978); State v. O'Donnell, 

203 N.J. 160

, 162 (2010). However, an exception

exists when the police search the premises only for other crime victims or

criminals. 

Mincey, 437 U.S. at 393

. Under these circumstances, the police may

seize any evidence in plain view.

Ibid. Here, we must

determine whether, after


                                                                            A-1010-17
                                       32
responding to an emergency call and lawfully entering a homicide scene, a later

re-entry by the police into a police-secured location, followed by the plain view

seizure of evidence, constitutes merely a continuation of the initial emergency

entry. 

O’Donnell, 203 N.J. at 162

.

      The emergency aid doctrine requires the law enforcement official to have

an objectively reasonable belief, even if later found to be erroneous, that an

emergency demands immediate assistance in order to protect or preserve human

life, or to prevent serious injury. The provision of assistance must be the prime

motivating factor of the law enforcement agent's decision to conduct a

warrantless entry; and any search must be limited to those places that have a

nexus to the emergency.

Id. at 163.

   In addition, the reasonableness of

continuous police presence at the location initially accessed under the

emergency aid exception is determined by the facts presented.

Ibid.

The officers were

concerned for the safety of the four-year-old child. The

police did not know the child's whereabouts in the house. The firearm used in

the shooting had not been recovered. The police had a reasonable basis to

believe the handgun was somewhere in the house since that is where defendant

was apprehended. Under these facts, the emergency aid doctrine applies.




                                                                           A-1010-17
                                      33
        Courts permit warrantless searches when police officers act "not in their

law enforcement or criminal investigatory role, but rather in a community

caretaking function." State v. Bogan, 

200 N.J. 61

, 73 (2009). That doctrine

recognizes that police officers provide a wide range of functions outside their

traditional law enforcement and criminal investigatory roles. State v. Edmonds,

211 N.J. 117

, 141 (2012). These activities include protecting the vulnerable

from harm where an immediate search is required to preserve life or property.

Ibid.

In Bogan, the

Court rejected the view that police can never engage in

community caretaking activities merely because they are also involved in the

detection, investigation, or acquisition of 

evidence. 200 N.J. at 77

. This is

particularly true where a police officer could prevent imminent harm to a child.

Ibid. “It is well-recognized

that leaving children unattended may constitute a

significant threat to their safety and welfare."

Id. at 76.

        Here, the child's whereabouts were unknown. The weapon used in the

shooting had not been recovered and was believed to be in the house. These

facts created an unacceptable risk of danger to the child as well as to the

residents of the building in general. The fact that any of one of them may

inadvertently obtain access to this firearm is a significant factor that justifies


                                                                            A-1010-17
                                        34
law enforcement agents to enter private property in the performance of their

community caretaking function. State v. Navarro, 

310 N.J. Super. 104

, 109

(App. Div. 1998).

                                        B

       Defendant also argues the trial court abused its discretion by admitting

evidence of a prior incident in which he allegedly choked May. The State sought

to admit this evidence to rebut defendant's claim that he did not intend to shoot

May. Defendant alleges he did not raise the state of mind defense nor claimed

he may have accidentally shot May. In fact, defendant maintained at trial that

his finger may have pulled the trigger involuntarily, after he was shot by Officer

Lee.

       This argument is not supported by the facts presented to the jury,

including defendant's own testimony. The trial judge properly exercised his

discretion to admit this evidence under N.J.R.E. 404(b) to support an absence of

mistake, negate accidental behavior, and show motive and intent. N.J.R.E.

404(b) provides:

             [E]vidence 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.
             Such evidence may be admitted for other purposes,
             such as proof of motive, opportunity, intent,
             preparation, plan, knowledge, identity or absence of

                                                                            A-1010-17
                                       35
            mistake or accident when such matters are relevant to a
            material issue in dispute.

      This type of evidence is admissible if the State can satisfy the following

four requirements: (1) the evidence must be "relevant to a material issue" in the

case; (2) the evidence must be "similar in kind and reasonably close in time to

the offense charged;" (3) the evidence must be established under the clear and

convincing burden of proof; and (4) the probative value of the evidence is not

outweighed by its prejudicial effect. State v. Cofield, 

127 N.J. 328

, 338 (1992).

      The trial judge conducted an N.J.R.E. 104(a) hearing to determine the

admissibility of N.J.R.E. 404(b) evidence. The State presented the testimony of

Eugene Spamn, a dispatcher for the East Orange Police Department. Spamn

testified that at 10:22 p.m. on March 25, 2015, he received a 9-1-1 call from an

individual residing in Apartment No. 1 at the property at issue here. Spamn

dispatched a police patrol car to that location.

      East Orange Police Officer Steven Plumer reported to the scene and was

let into the first-floor apartment. May and her infant daughter were the only

persons in the apartment. May informed Officer Plumer that her baby's father

had assaulted her. May told Plumer that defendant started choking her on the

living room couch and "at some point ended up in the kitchen on the floor, he

was choking her again." Plumer described May as "almost in hysterics, very

                                                                           A-1010-17
                                       36
disheveled." Her face was puffy, her eyes were watery, and she had bruises on

her neck.   Plumer also noted that the living room and the kitchen were

"disheveled."

      May told Plumer that she wanted to document the incident because she

feared defendant was going to "come back and kill her." May claimed that

defendant had accused her of sleeping with other men. Defendant was issued a

summons and the police wrote a domestic violence report. Officer Plumer did

not make a written report of the incident nor take photographs to document

May's injury to her neck.

      In a memorandum of opinion, the judge applied the Cofield factors and

found the incident was relevant to defendant's state of mind on the night of the

shooting. The judge wrote: "When a defendant concedes involvement in a

shooting but contests his state of mind at the time of the offense, state of mind

becomes a relevant issue." The judge found this evidence was relevant to prove

motive, specifically, defendant's jealousy over May's alleged relationship with

another man.

      The judge also found the evidence satisfied the second Cofield factor

because the choking incident was sufficiently similar in kind and reasonably

close in time to the shooting incident five weeks later. "The similarities consist


                                                                            A-1010-17
                                       37
of (1) the same parties; (2) the same location; (3) time of evening; and (4) the

incidents being only five weeks apart." As to the third prong, the judge found

the State had proven the incident by clear and convincing evidence. The judge

noted the audio recording of the 9-1-1 call, the testimonies of the dispatcher and

Officer Plumer.

      The judge did not find the 9-1-1 call violated the Fifth Amendment's

Confrontation Clause. The judge gave the call "considerable weight" and found

"the objective circumstances indicate that the victim's primary purpose . . . in

placing the call was to enable police assistance for an ongoing emergency." The

judge found Officer Plumer's testimony "very credible." Through this evidence,

the State established by clear and convincing evidence the admissibility of the

March 25, 2015 incident.

      As to the fourth prong, the judge found the evidence's probative value was

not outweighed by its prejudicial effect. "[B]ecause Defendant raised his state

of mind as an issue, the State is permitted broad latitude to introduce motive or

intent evidence . . . ." The judge found there was a lack of probative evidence

related to defendant's state of mind during the shooting that weighed strongly in

favor of admitting evidence of the March 25, 2015 incident.




                                                                            A-1010-17
                                       38
      Defendant testified at trial about the March 25, 2015 incident.          He

characterized the incident as an argument he had with May about her demands

for him to leave Tretola. He claimed May was the aggressor when she grabbed

and bit him. He admitted he grabbed her but denied choking her. This prompted

the State to call Officer Plumer as a rebuttal witness.

      The admission or exclusion of evidence at trial rests in the trial court's

sound discretion and will be reversed only for an abuse of that discretion. State

v. J.M., 

225 N.J. 146

, 157 (2016).          Defendant claims his actions were

involuntary; he pulled the trigger of the .45 caliber handgun only after Officer

Lee shot him. The State has the right to challenge defendant's state of mind

defense under N.J.S.A. 2C:2-1(a). See State v. M.L., 

253 N.J. Super. 13

, 22

(App. Div. 1991).

      In State v. Nance, 

148 N.J. 376

, 380 (1997), the defendant admitted to the

shooting that led to the death of the victim, a male friend of a woman with whom

the defendant had had a relationship.       The defendant claimed that it was

accidental. To rebut this defense and satisfy its burden of proof that the killing

was intentional, the State sought to introduce evidence of bad acts the defendant

had committed against the woman out of jealousy.

Id. at 382.

These bad acts

included an incident where the defendant tore up roses that had been delivered


                                                                            A-1010-17
                                       39
to the woman and a confrontation between the defendant and one of the woman's

brothers.

Id. at 382-84.

      The Supreme Court held that the woman's testimony on these incidents

established that the defendant's jealousy was relevant to the issues of motive,

intent and lack of accident.

Id. at 388-89.

            The State charged defendant with knowing or
            purposeful murder; therefore, the State had to negate
            the claim of an accident or self-defense to establish that
            crime. There was no other evidence available through
            which the State could establish motive because, while
            defendant conceded his involvement in the shooting, he
            claimed that it was accidental . . . . Thus, defendant's
            state of mind was a relevant issue, and the motive of
            jealousy was a proper basis upon which the jury could
            conclude that defendant did or did not intend to shoot
            the victim.

            [Id. at 388.]

      As in Nance, defendant here conceded his involvement in the shooting,

but claimed he did so without the purposeful or knowing mental state required

to be guilty of murder under N.J.S.A. 2C:11-3(a)(1) and (2). Consistent with

Nance, the State here has no other evidence available to rebut that defense. The

March 2015 incident served to negate defendant's claim of accident.

      Defendant points to State v. Sanders, where the defendant, charged in the

death of his infant daughter, claimed that he hit the child while "play-boxing"


                                                                          A-1010-17
                                       40
with her. 

320 N.J. Super. 574

, 577 (App. Div. 1999). The State sought to

introduce evidence that the defendant had been violent towards the child's

mother on several occasions.

Id. at 578-79.

This court reversed the trial court

and held that the evidence was inadmissible under N.J.R.E. 404(b).

Id. at 580-

84.

We concluded the evidence was not relevant to prove that the defendant

knowingly and purposely killed his daughter.

Id. at 581.

"There is simply no

logical connection between the evidence that defendant assaulted his paramour

and the fact in issue."

Ibid. (internal quotations omitted).

Rather, the evidence

was an effort to show that the defendant had the requisite intent because he had

an "assaultive disposition."

Id. at 582, 584.

      The analysis we adopted in Sanders is not applicable to the present matter.

The evidence the State introduced here involved the victim of the charged crime.

Thus, unlike in Sanders, the evidence in this case is relevant to the question of

motive and intent and rebuts the claims mistake or accident. Stated differently,

this evidence was not introduced to show that defendant had a predisposition to

violence.

                                        C

      Defendant also argues that the prosecutor's summation compounded the

purported prejudice caused by the trial court's decision to admit N.J.R.E. 404 (b)


                                                                            A-1010-17
                                       41
evidence. We disagree. The prosecutor made the following comments during

his summation:

            The [c]ourt gave an instruction about a prior incident
            between Latrena May and [defendant] on March 25th,
            2015. For state-of-mind purposes, you're allowed to
            consider a prior incident between [defendant and May],
            where he came to her house, he choked her, and he
            threw her to the ground. That intent, to assault her and
            commit harm on her, you can consider when
            determining did [defendant] purposely or intentionally
            cause harm on Latrena May.

      At this point, the prosecutor played the audio recording of the 9-1-1 call

May made to the East Orange Police Department on March 25, 2015. The

prosecutor then resumed his summation:

            There's your intent, ladies and gentlemen. They argue
            this was an accident and this is an "oops." What is it,
            fool me once shame on you, fool me twice shame on
            me? This happened twice. Actually, three shots. I
            would say something happened to her three times.

            The point I'm trying to make here, ladies and
            gentlemen, is you can't hide behind, it was an accident,
            it was involuntary, when five weeks earlier you went to
            her house, the same location which, by the way, you
            heard this was at 10:22 p.m. on March 25th, 2015. May
            1st was 10:15 p.m. Interesting, right?

            [(Emphasis added).]

      Defense counsel did not object to any part of the prosecutor's summation.

We therefore must review this issue under the plain error standard codified in

                                                                          A-1010-17
                                      42
Rule 2:10-2, which states that "[a]ny error or omission shall be disregarded by

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

of producing an unjust result . . . ." This Rule also authorizes this court, in the

interests of justice, to "notice plain error not brought to the attention of the trial

or appellate court." (Emphasis added).

      The court gave the jury the following instructions to guide them in how

they should consider this evidence:

             Now, evidence has been introduced at trial that Andre
             Higgs went to Latrena May's residence on March 25th,
             2015 and allegedly put his hands around her neck and
             choked her. Normally, such evidence is not permitted
             under our Rules of Evidence. Our rules specifically
             exclude evidence that a defendant has committed other
             crimes, wrongs or acts when it is offered only to show
             that he has a disposition or tendency to do wrong and,
             therefore, must be guilty of the charged offenses.

             However, our rules do permit evidence of other crimes,
             wrongs or acts when the evidence is used for certain
             specific narrow purposes. And in this case, the fact that
             [defendant] allegedly put his hands around Latrena
             May's neck and choked her is being offered by the State
             for the sole purpose of refuting . . . defendant's defense
             theory that [he] involuntarily shot Latrena May three
             times after or while [he] was shot by Police Officer Lee.

             Whether this evidence rebuts . . . that [defendant]
             involuntarily shot Latrena May is for you to decide.
             You may decide that the evidence does not refute or
             rebut that [defendant] involuntarily shot Latrena May
             and is not helpful to you at all. In that case, you must

                                                                                A-1010-17
                                         43
            disregard the evidence. On the other hand, you may
            decide that the evidence does refute or rebut the defense
            theory that [defendant] involuntarily shot Latrena May
            and use it for that specific purpose.

            However, I remind you that you may not use this
            evidence to decide that [defendant] has a tendency to
            commit crimes or that he is a bad person. That is, you
            may not decide that just because the defendant had
            committed other crimes, wrongs or acts he must be
            guilty of the present crimes. I have admitted the
            evidence only to help you decide the specific question
            of whether [defendant] involuntarily shot Latrena May.

            [(Emphasis added).]

      The trial judge's instructions provided the jurors proper guidance on how

to evaluate this evidence. This evidence directly rebuts defendant's claim that

any shooting attributable to him was purely accidental. Defendant testified that

he was always candid with May concerning the nature of their relationship.

Despite having fathered a child with May, defendant claimed he told her that he

would never end his relationship with Oneida Tretola. However, defendant

testified that the argument which resulted in May's death was rooted in her

unwillingness to continue to accept this second-class arrangement. The jurors

were required to consider this evidence and determine what drove May to leave

her four-year-old daughter asleep in her bed, and step outside the front porch of




                                                                           A-1010-17
                                      44
her home with defendant, without shoes and wearing only panties and a

brassiere.

      Defendant argues the prosecutor's summation remarks exceeded the

permissible bounds of fair commentary on the evidence and the judge's jury

instructions on N.J.R.E. 404(b) evidence were inadequate to counteract this

prejudice. Mindful of the standard of review in Rule 2:10-2, we discern no legal

basis to conclude the prosecutor's summation were clearly capable of producing

an unjust result and consequently denied defendant of his right to a fair trial.

      The remaining arguments in the brief written by defendant's appellate

counsel and the arguments defendant raised in his pro se supplemental brief are

clearly without merit and do not warrant further discussion in a written opinion.

R. 2:11-3(e)(2).

      Affirmed.




                                                                             A-1010-17
                                       45

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