                                NOT FOR PUBLICATION WITHOUT THE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.




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                                       25
