STATE OF NEW JERSEY v. DAVID ARISTE (2011)

Tried by a jury, defendant David Ariste was found guilty of first-degree murder of Garry Williams, N.J.S.A. 2C:11–3a(1) or (2);  first-degree attempted murder of William Hogges, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:11–3;  third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b;  and two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a.   His co-defendants, Burnell and Burchanti Scott, pled guilty to weapons charges stemming from the same underlying incident.   Defendant was sentenced on the murder count to a fifty-year term subject to eighty-five percent of parole ineligibility and five years parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, and to a consecutive eighteen-year term subject to eighty-five percent of parole ineligibility on the attempted murder count.   After appropriate mergers, defendant received a concurrent four-year term on the unlawful possession of a weapon offense.   Defendant was also ordered to pay $5,000 in restitution for funeral expenses.   Defendant appeals, and we affirm.

According to the State's proofs, during the early morning hours of August 25, 2005, there was a hostile encounter between two groups of males in the area of East 22nd Street and 12th Avenue in Paterson.   There, defendant and his childhood friends, brothers Burnell and Burchanti Scott, met up with Williams and his cousin Hogges.   An argument ensued over a t-shirt, leading to a fistfight between Burnell and Williams.   When Burchanti went to the aid of his brother, Hogges pushed him away.   Still yelling, the men went their separate ways when police arrived.

Shortly thereafter, Williams and Hogges drove past the Scott residence on East 22nd Street in Paterson, about one block from where the fight had occurred.   Burchanti and Hogges got into a heated argument, during which Burchanti pulled out a handgun.   Before the encounter could escalate, a police patrol car pulled up, causing Hogges and Williams to leave the scene in Hogges's van.

Burnell, still angry at the cousins, retrieved a .12 gauge unloaded shotgun from his garage and headed towards 12th Avenue in search of Williams.   However, seeing police activity in the area, Burnell left the shotgun on the grass near the curb and returned home.   Meanwhile, at 12:46 a.m., Paterson Police received a report of a black male in possession of a possible rifle near East 24th Street and 12th Avenue.   Officer Rocco Galiano responded to that area and recovered a rusted shotgun, which appeared inoperable, from a grassy area near the curb on the southwest corner of East 24th Street and 12th Avenue.

Later that morning, Burnell encountered Williams and Hogges outside of a nearby liquor store, about one block from the Scott residence.   Burnell and Williams agreed to reconcile, shook hands, hugged and departed.   Burnell then entered the liquor store with his girlfriend, “Moosey,” while Williams and Hogges left in a van with friends Quadree Smith and Rashawn Alexander.   They stopped the van at the Scott residence where Hogges encountered defendant and Burchanti outside the home.   Hogges got out of the van and questioned Burchanti as to why he pulled a gun on him earlier.   A fistfight ensued between Hogges and Burchanti, during which defendant fired a single gunshot into the air.   Hogges heard the shot, looked up, and saw defendant holding a gun.   Defendant ordered Hogges and Williams to “back up.”   Hogges witnessed defendant fire five shots at Williams, who fell to the ground.   Hogges yelled at defendant, who then fired a single shot, striking Hogges in the arm.   Williams stood up and the wounded men fled on foot towards Broadway while defendant fired additional rounds.   The two attempted to jump into a car that had pulled up, but Williams had fallen onto the street as it turned a corner.   A passenger in the car stayed behind with Williams, who eventually died from the gunshot injuries to his chest and arm, while the driver took Hogges to the hospital.   When interviewed later by police at the hospital, Hogges claimed that he did not know who shot him, contrary to his subsequent trial testimony.

Claurina Curry, a cousin of Williams and Hogges, witnessed the shooting as she was walking on East 22nd Street to the liquor store.   She saw Hogges fighting with Burchanti in front of the Scott residence and defendant holding a gun, which he fired at Williams when Williams attempted to break-up the fight.   Curry heard two shots and saw Williams “buckle” and fall to the ground.   As she ran down East 22nd Street, she heard at least four more shots.

At 1:54 a.m., Paterson Police Officer Javier Gutierrez responded to the intersection of East 22nd Street and Hamilton Avenue on a report of a shooting.   Upon arrival, Officer Gutierrez found Williams lying unresponsive and not breathing in Quadree Smith's arms with blood on his forehead and shirt.   Gutierrez secured the scene, awaiting police back-up and paramedics.

At 2:10 a.m., Passaic County Prosecutor's Office Detective Joseph Fulco responded to the scene and observed an expired Williams lying on the ground soaked in blood, but found no shell casings or projectiles in the immediate vicinity of the victim.   Fulco had learned that the shots came from an area off Broadway so he continued his investigation down East 22nd Street.   Along the way, he observed a trail of blood that led him to a doorway entrance to the Scott residence on East 22nd Street.   Canvassing the building, Fulco discovered bloody tissues and napkins in a garbage can inside the home.   Later that morning, Fulco's investigation uncovered seven shell casings, projectiles and bullet fragments near the building.

Meanwhile, while leaving the liquor store with Moosey, Burnell heard gunshots, which sounded from the direction of his house.   On his return home, Burnell saw Williams lying on the street and police officers at the scene.   Burnell and Moosey then left on foot and called Burchanti on his cell phone, asking him to pick them up at the hospital where Hogges had been taken.   Burchanti, along with his girlfriend, Sikida Cockburn, and defendant, picked up Burnell and Moosey at the hospital in a rental car driven by Cockburn and left Paterson.   During the drive, defendant admitted shooting Williams.

At 4:00 a.m. that morning, defendant, Burnell, Burchanti, Cockburn and Moosey arrived at the Super 8 Motel in South Hackensack where defendant checked-in, exhibited his passport for identification, and paid $55 in cash for the room.   While Burnell and Moosey stayed in the room, defendant, Burchanti and Cockburn left for the Capri Hotel in Little Ferry where a security camera captured Cockburn registering and defendant paying for the room at 4:22 a.m., and seven hours later, at 11:17 a.m., leaving their room.   Two minutes later, at 11:19 a.m., defendant was videotaped removing his black t-shirt and disposing of it in a hotel garbage can.   Defendant, Burchanti and Cockburn then left the Capri Hotel and returned to the Super 8 in South Hackensack where they picked up Burnell and Moosey, and drove to New York.

The next day, Burnell turned himself in to the Paterson Police and admitted his involvement in the fistfight and possession of the recovered shotgun.   He and his brother Burchanti eventually pled guilty to weapons offenses stemming from this incident.   At trial, Burnell testified that he felt responsible because “it all started over [him] and [Williams] arguing.”

During the ensuing investigation, Paterson Police Detective Dean Barone attempted to locate defendant at his father's house in East Orange, and left his business card for either defendant or his father to contact him.   However, Barone never received a response.   Nearly one year later, on July 29, 2006, defendant was arrested in Brooklyn.

A ballistics examination of the seven shell casings and three bullets recovered from the scene revealed that the projectiles were fired from the same 9mm gun.   An autopsy of Williams also revealed that Williams suffered from a fatal gunshot wound to the right side of his chest, which perforated his liver, heart, both lungs and aorta.   That bullet was recovered from Williams's left chest wall — just below the seventh rib.   The autopsy also revealed that a bullet entered and exited Williams's right arm and that Williams had a blood alcohol concentration of .095 percent and traces of marijuana in his system.

Crediting the State's proofs, the jury convicted defendant of the murder of Williams, the attempted murder of Hogges, and related weapons offenses.

On appeal, defendant, through counsel, raises the following arguments, many of them for the first time:

I.  THE TRIAL COURT ERRED IN NOT STRIKING CERTAIN TESTIMONY OF BURNELL SCOTT FROM THE RECORD.  (Not raised below).

II. THE IMPROPER USE OF THE STATEMENT OF BURNELL SCOTT AT TRIAL DENIED DEFENDANT A FAIR TRIAL.  (Not raised below).

III. IMPROPER CONDUCT BY THE PROSECUTOR DURING THE TRIAL AND CERTAIN COMMENTS DURING SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL.  (Partially raised below).

IV. THE ADMISSION OF IMPROPER HEARSAY EVIDENCE DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT OF CONFRONTATION.

V. THE TESTIMONY OF INVESTIGATOR FULCO REGARDING TRAJECTORY OF THE BULLETS WAS IMPROPER EXPERT TESTIMONY.  (Not raised below).

VI. THE COURT'S CHARGE TO THE JURY WAS ERRONEOUS AND MANDATES REVERSAL OF DEFENDANT'S CONVICTION.

VII. THE RESTITUTION ORDER ENTERED BY THE COURT MUST BE VACATED.  (Not raised below).

VIII. THE 68 YEAR SENTENCE IMPOSED UPON MR. ARISTE MUST BE MODIFIED AND REDUCED.  (Not raised below).

IX. THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL[.]  (Not raised below).

In addition, defendant pro se raises the following arguments:

I.  IT WAS ERROR FOR THE COURT TO FAIL TO CHARGE THE JURY ON ACCOMPLICE TESTIMONY.

II. THE ADMISSION OF GRUESOME PHOTOGRAPHS INTO EVIDENCE WAS ERROR.

III. THE COURT ERRED BY NOT ALLOWING DEFENDANT TO QUESTION MR. HOGGES REGARDING HIS ORIGINAL STATEMENT TO POLICE THAT AN UNKNOWN MAN SHOT HIM.

We address these issues generally in the order raised.

I.

During trial, Burnell repeatedly interrupted questioning, interjecting that “[t]he nigger killed my man”—referring to defendant as the killer, even though Burnell was not an eyewitness to the actual shooting.   The specific colloquy being challenged for the first time on appeal as unduly prejudicial is as follows:

Q. You hear gun shots?

A. Yeah, but I ain't timing it.   I ain't gonna be sitting there timing no gun shots because I didn't know what was going on.   You keep asking me the same questions like.   The nigger killed my man, man, like what the fuck you expect.

Q. Barnert Hospital, from where you lived-

A.  You keep asking me the same question.   The nigger killed my man.   What the fuck.

The Court:  Mr. Scott, let him ask

the question.

A. He keep asking me the same

question. I been living with this shit for four years.   The nigger killed my man.

The Court:  Mr. Scott, listen to me, he has a right to ask you the questions.

(Witness crying)

The Court:  Folks, we'll take a brief recess.   Go back in the juryroom and don't discuss the case.

․

Q. Do you know whether your brother, Nap, at any time, the first or second argument, possessed a handgun?

A. Listen, if he had just deal like everybody else do when we fight out there, man.   If he wasn't so scared, if he say he told to break it up with his hands, it was only two of them jumping, he could have just jumped in regular way we always do when people out there fight.   But we never go get no guns for nobody from our own block.   We all grew up together, man.

Q. Mr. Scott, during the first and second argument did your brother possess a handgun?

A. I told you when the cops followed us all down there I had left them right there and when the cops came I left, plain and simple.   He should have deal like everything [sic] else do when we fight out there.   We all grew up together, fight with our hands and squash the next day, man.   That's all you have to do.   The nigger killed my man I grew up with, man.   What the fuck you all expect, man.

Q. Just like when you grabbed the shotgun-

A.  Like I been doing this shit for four years.   I'm sitting fighting from sides of the shit over dumb shit this nigger did, man.   He could have just sat there and fought with his hands and got jumped like everybody else and get beat one time, fight again, man.   Plain and simple.

Although Burnell's non-responsive statements were clearly prejudicial, defendant, who failed to object at trial, has not demonstrated that they were clearly capable of producing an unjust result.

As a threshold matter, we disregard any error or omission not brought to the attention of the trial court “unless it is of such a nature as to have been clearly capable of producing an unjust result.”  R. 2:10–2.   In such cases, “[t]he absence of an objection suggests that trial counsel perceived no error or prejudice.”  Bradford v. Kupper Assocs., 283 N.J.Super. 556, 573 (App.Div.1995), certif. denied, 144 N.J. 586 (1996).   Accordingly, a reviewing court will not reverse without a showing of plain error, one which is clear or obvious, and has affected the outcome of the case.  State v. Blanks, 313 N.J.Super. 55, 63–64 (App.Div.1998);  State v. Macon, 57 N.J. 325, 333 (1971) (“[E]xcept in extraordinary circumstances, a claim of error will not be entertained unless it is perfectly clear that there actually was error.”).

Here, Burnell's references to defendant, while prejudicial, are not so “inherently inflammatory” as to have “divert[ed] the minds of the jurors from a reasonable and fair evaluation” of the case.   See State v. Wakefield, 190 N.J. 397, 429 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817 (2008);  see also State v. Thompson, 59 N.J. 396, 421 (1971).   While Burnell did not actually witness the shooting, defendant admitted to him that he shot Williams.   This admission, together with ample other evidence of defendant's guilt, including the eyewitness testimony of Curry and Hogges, clearly demonstrates that the failure to sua sponte strike Burnell's references to defendant as the shooter did not affect the outcome of this case.   See Blanks, supra, 313 N.J.Super. at 63–64.

II.

Defendant contends, also for the first time on appeal, that the prosecutor's reading of Burnell's statement to the police into the record in an attempt to refresh his recollection amounted to plain error.   We disagree.

N.J.R.E. 612 allows a writing to be used to refresh the recollection of a witness who had prior knowledge of the subject at issue, Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J.Super. 531, 545 (App.Div.1994), the memory of which is now impaired.  State v. Williams, 226 N.J.Super. 94, 103 (App.Div.1988).   Upon laying this foundation, the witness may review the subject writing.  Ibid. If looking at the document permits the witness to independently recall facts without relying on the document, then the testimony of the witness is admissible.  State v. Carter, 91 N.J. 86, 122–23 (1982);  Lautek, supra, 276 N.J.Super. at 545.

The purpose of this rule is to facilitate independent testimony by a witness and not to use the witness as “merely a passive vehicle ․ to place before the jury an otherwise hearsay declaration.”  State v. Caraballo, 330 N.J.Super. 545, 557 (App.Div.2000).   Therefore, a prosecutor may not ask leading questions designed to improperly admit prior statements by the witness into the record.   See State v. Cullen, 103 N.J.Super. 360, 365 (App.Div.1968);  N.J.R.E. 611(c) (prohibiting leading questions on direct examination except as to hostile witnesses).   Accordingly, the rule does not allow the party refreshing the memory of its witness to introduce the writing in evidence.   See Showalter v. Barilari, Inc., 312 N.J.Super. 494, 514 (App.Div.1998).

Here, the record clearly established both Burnell's need to refresh his recollection and his personal knowledge of the subject matter.   Although the witness had independently recalled that defendant admitted to the shooting, Burnell did not remember the specific details of the conversation between the two while driving enroute to the motel after the shooting:

Q. Did you ask [defendant] any questions?

A. I asked what happened and stuff, what was going on.

Q. Do you remember specifically what exact questions you asked him and what exact answer he gave you?

A. I don't remember specific ones.

Q. The day after this happened, you said you remember giving a statement to the police, correct?

A. Yes.

Q. When it was a day later, do you think you would have remembered exactly what you asked him and exactly what he told you?

A. Yes.

[ (emphasis added).]

However, rather than permitting Burnell to read his statements to himself, the prosecutor read them aloud to the jury, asking him whether he recalled making them:

Q. When you were asked initially:  In your own words can you tell me what knowledge you have concerning this incident?   Do you remember telling the officers everything you told us today and then saying the following, and I will direct counsel to page four from “we seen D Brim” which is about the sixth line down.

“We seen D Brim.1 He was standing there by William Street and Hamilton Avenue.   He said, I got to get the fuck out of here.   I don't know what is going on.   He was sweating and nervous.   Moosey and me left and walked around and went back by the house.   There was yellow tape blocking the entrance by my house.”

․

Q. Now you start talking about D Brim. Do you remember giving this answer?

․ “D Brim was just sitting there sweating, talking about that he just had to get the fuck out of there.   He said, mother fuckers better know that I ain't playing.   Shit don't happen like that in Newark.

I asked D Brim, why the fuck you do that?   He said they were beating up your brother and I couldn't do nothing with my hands, so went and got the gun.   I told them get off him and I started shooting.[”]

․

Q. Do you remember saying this:  I asked him, did you shoot the whole clip in him?   He told me, no, there is still a bullet in it?

Although it was improper for the prosecutor to have read Burnell's police statement to the jury, the error was harmless.   As noted, Burnell had already testified, independent of his prior statement, to the critical and highly incriminating fact that defendant admitted shooting Williams.   The introduction of Burnell's statement to the police providing additional detail of his conversation with defendant in the car offered no information more inculpatory than that which was properly admitted.   See Caraballo, supra, 330 N.J.Super. at 557.   Accordingly, we discern no plain error in the State's use of Burnell's police statement.

III.

Next, defendant contends that the prosecutor's conduct at trial and during summation denied him a fair trial.   Again, we disagree.

First, defendant argues that the admission of autopsy photographs of Williams was designed to elicit an emotional response from the jury.²  The decision to admit or exclude photographs of victims rests in the sound discretion of the trial court.  State v. Johnson, 120 N.J. 263, 297 (1990).   To be sure, a prosecutor is not permitted to resort to “inflammatory and highly emotional” appeals to deflect the jury from a fair consideration of the evidence.   State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929;  113 S.Ct. 1306;  122 L. Ed.2d 694 (1993).

In this case, however, there has been no demonstration that the prosecutor's display of the autopsy photograph to the witness Hogges was for the purpose of arousing sympathy for the victim or anger against defendant.   See State v. W.L., 292 N.J.Super. 100, 111 (App.Div.1996).   On the contrary, in an attempt to counter defendant's argument that Williams's facial injuries occurred when he thrust himself into the fistfight between Hogges and Burchanti, the prosecutor introduced the photograph to show that the abrasions to Williams's face could have occurred when he fell to the ground after he was shot.   The photographs also helped explain the path traveled by the projectiles, the entrance and exit wounds, and the nature of the resulting injuries.   We find no abuse of discretion in admitting these photographs, Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App.Div.1999), certif. denied, 163 N.J. 79 (2000), inasmuch as their probative value far outweighed any potential for prejudice generated thereby.  Carter, supra, 91 N.J. at 106.

Second, defendant argues that the prosecutor improperly conveyed “personal opinion” about the testimony.   Specifically, defendant takes issue with the following passage during the State's summation:

This is what I mean by corroborating evidence.   Everything that is said is corroborated by what is found.   And the reason I didn't bring Detective Pelosi in has nothing to do with trying to hide anything.   All the detectives were there.   I could have brought in all five of them to say the same thing but none of them witnessed the incident.   It was more a collection of the evidence for you, the jury, to decide what is relevant and what isn't.   You would have been here for weeks listening to the detectives saying the same thing as each other.   Lieutenant Fulco was also a lead detective in that case and that's who you heard from in terms of the evidence.

When placed in context, however, the prosecutor was simply responding to defense counsel's criticism during summation that the State purposely refrained from calling Paterson Police Detective Carmen Pelosi in order to conceal the “truth,” namely that Hogges told her that he did not know who shot him.   Once again, defendant did not object to the prosecutor's remarks, depriving the trial court of an opportunity to cure the alleged error, and suggesting that defense counsel did not believe the remarks were so prejudicial as to require an objection.   See State v. Frost, 158 N.J. 76, 83–84 (1999);  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed.2d 89 (2001).   More significant, the comment was brief, responsive to defense counsel's argument, and not so egregious as to deprive defendant of a fair trial.

Third, defendant complains that the State infringed on his right to remain silent by commenting on his nearly one-year “flight” from police.   We find this argument equally unpersuasive.   The Fifth Amendment privilege against self-incrimination, Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 1491, 12 L. Ed.2d 653, 656 (1964), exists at common law in New Jersey and is incorporated into New Jersey's Rules of Evidence.  In re Martin, 90 N.J. 295, 331 (1982).  N.J.S.A. 2A:84A–19 also guarantees that “[e]very natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty.”   Thus, New Jersey courts have long recognized the right to remain silent in the face of police interrogation as a fundamental aspect of the privilege against self-incrimination.   See State v. Deatore, 70 N.J. 100, 114 (1976).

Flight from police is not, however, constitutionally protected.   In fact, flight may “reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.”  State v. Sullivan, 43 N.J. 209, 238–39 (1964) (citations omitted), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L. Ed.2d 477 (1966).

Here, the prosecutor stated during summation:

And then we have the flight.   Where is Burchanti Scott?   You heard, he turned himself in the next day and pled guilty to weapons charges, to the waving of the gun earlier.   Where was Burnell Scott?   You heard he turned himself in the next day and pled to weapons charges for the possession of the shotgun.   Claurina Curry came in the next day.   William Hogges came in the next day.

Who is the only one who didn't come in?   Ever. Until he was arrested in Brooklyn [elevan] months later.   David Ariste.   And do you know why he's all over the video tape at the Capri Hotel.   You really think he knew there was a videotape, because if he knew there was a videotape and he had signed the registry at the Super 8 Motel, where he didn't stay, why not sign the registry in the hotel he did stay at?   He paid for both.   Who's the only guy who has the vested interest to get away?   He paid for both rooms.

․

We saw that he exchanged keys.   We saw that he changed rooms.   Was it not clean enough for him?   We don't know.   We don't know why he switched rooms, but we know that he went to a hotel, not to his house in Newark, not straight to Brooklyn, if that's where he ended up, wherever that was, and even though Burchanti Scott and Burnell Scott turned themselves in, admitted to what they did and did there time for it, all of which you heard, David Ariste fled and continued to flee.

This flight charge is extremely important, because it does help you get into his mind, which is what you have to do when you deliberate on this case.

[ (emphasis added).]

These comments on flight responded to defense counsel's argument that Burchanti and Burnell, not defendant, tried to hide from the authorities.   Moreover, the prosecutor made no reference to pre-arrest silence at or near the time of defendant's arrest or custodial interrogation.   Rather, the State simply intended to draw a reasonable inference of “consciousness of guilt” based upon unexplained circumstances surrounding defendant's almost year-long absence from his Paterson home, see Sullivan, supra, 43 N.J. at 238–39, which it was free to do.

In conclusion, the challenged conduct and remarks of the prosecutor, whether considered singly or collectively, did not deny defendant a fair trial.

IV.

Defendant contends that Detective Barone's testimony that “we were provided the hotels by a witness” constituted impermissible hearsay.   We reject this argument.

The right of confrontation is not implicated when a police officer explains his subsequent conduct by showing that he was not acting in an arbitrary manner but on information obtained from a witness.  State v. Bankston, 63 N.J. 263, 268 (1973).   In such a case, the statement is being offered not for its truth but only that it was made and resulted in certain action by the listener.   See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376–77 (2007).   Thus, a police officer is permitted to explain the reason he approached a suspect or went to the scene of a crime by stating that he did so “upon information received.”  State v. Kemp, 195 N.J. 136, 154 (2008);  State v. Branch, 182 N.J. 338, 351 (2005).   However, a confrontation problem arises when an officer's testimony “becomes more specific by repeating what some other person told him concerning a crime by the accused.”  Bankston, supra, 63 N.J. at 268.

Here, Detective Barone merely explained that his presence at the motels was not arbitrary but as a result of information obtained from a witness.   He did not elaborate any further or offer specific information of an incriminating nature.   The statement was neutral, introduced solely as to his motivation for traveling to the two motels.   There was no error in its admission.

V.

Defendant also challenges the testimony of Detective Fulco regarding the direction of defendant's movements as expert opinion not properly qualified.   Specifically, Fulco opined that defendant fired his weapon while moving southbound towards Broadway — the same direction the victims fled on foot away from defendant.   He based this decision in part on the placement of the bullets and shell casings uncovered at the scene.   We discern no abuse of discretion in allowing such testimony in evidence.

“The admissibility of opinion evidence rests within the discretion of the trial court.”  State v. LaBrutto, 114 N.J. 187, 197 (1989).   Expert opinion is admissible only “if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education and knowledge.”  State v. Odom, 116 N.J. 65, 71 (1989).   Thus, N.J.R.E. 702, which governs expert opinion testimony, provides as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In order to admit expert opinion in evidence, the trial court must first determine whether the following three factors are satisfied:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;

(2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable;  and

(3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Jenewicz, 193 N.J. 440, 454 (2008) (citations omitted).]

Most important for present purposes, expert opinion testimony is only permitted after an expert is “ ‘suitably qualified and possessed of sufficient specialized knowledge to be able to express [an expert opinion] and to explain the basis of that opinion.’ ”  State v. Moore, 122 N.J. 420, 458–59 (1991) (alteration in original) (quoting Odom, supra, 116 N.J. at 71).

In contrast, lay opinion concerns matters of common knowledge and observation.  Johnson, supra, 120 N.J. at 294;  LaBrutto, supra, 114 N.J. at 197.  N.J.R.E. 701 sets forth the following

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

The rule ensures that lay opinion is based on adequate foundation.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

In LaBrutto, supra, the Court noted the general admissibility of lay person testimony by police officers, “based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary.”  114 N.J. at 198.   The LaBrutto Court permitted an investigating officer's lay opinion regarding the point of impact of an automobile accident based upon personal observation of tire tracks, scuff marks, and the resting positions of vehicles at the accident scene.  Id. at 193.

Here, the prosecutor questioned Fulco about crime-scene photographs, including those of shell casings and bullets, from which Fulco opined based on their placement:

If we look at the shell casings and you look at the projectiles, you could tell at one point the shooter was shooting at an individual, which would be by the street area, because the three bullets go that way and the shell casings are located here.   And then the other four shell casings were located further, going towards Broadway, and the projectiles in conjunction with those shell casings are headed towards an individual who may be running in that direction.

Defendant never objected to Fulco's answer, and properly so since it falls squarely within the area of lay opinion.   Fulco's testimony was based on his own first-hand observations and experience, see LaBrutto, supra, 114 N.J. at 198, and his opinion assisted the jury in understanding the State's physical evidence, enabling the State to corroborate eyewitness testimony indicating that the victims where shot at as they ran away from defendant.   Accordingly, we discern no abuse of discretion in permitting such testimony under N.J.R.E. 701.

VI.

Next, defendant argues that the court erred in charging flight.   Specifically, the court instructed:

There has been some testimony in this case from which you may infer that the defendant fled shortly after the commission of the crimes.   Defendant denies any flight.   The question of whether David Ariste fled after the commission of the crimes is another question of fact for your determination.

Mere departure from a place where a crime or crimes have been committed does not constitute flight.   If you find that the defendant[,] fearing that an accusation or arrest would be made against him on the charges involved in the indictment[,] took refuge in flight for the purpose of evading the accusation or arrest on these charges, then you may consider such flight in connection with all the other evidence in the case as an indication or proof of consciousness of guilt.   Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment.

Defendant contends that his departure from the scene to spend the night at a hotel and failure to return home or respond to police contact information provided an insufficient basis for a flight charge.   We disagree.

A jury charge on a defendant's unexplained flight may be appropriate under circumstances that imply consciousness of guilt.  State v. Long, 119 N.J. 439, 499 (1990).   Whether sufficient evidence supports a flight charge is left to the trial court's discretion.  Ibid. Flight is distinguished from mere “departure,” which is not by itself a basis for a charge on flight because it does not alone imply guilt.  Sullivan, supra, 43 N.J. at 238–39.   Rather,

For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.

[State v. Mann, 132 N.J. 410, 418–19 (1993) (quoting Sullivan, supra, 43 N.J. at 238–39).]

Given the potential prejudicial effect of flight evidence, the court, when appropriate, “must instruct the jury carefully regarding the inferences the jury may draw from that evidence.”  Id. at 420.

Here, there is evidence of “unexplained circumstances” beyond mere departure, which reasonably supports an inference that defendant fled with a consciousness of guilt in an effort to avoid accusation.   See Sullivan, supra, 43 N.J. at 238–39.   For instance, defendant had immediately left the scene of the crime to spend the night in an out-of-town hotel where he disposed of an article of his clothing the morning after the crime, and then continued to New York where he was arrested eleven months after the crime.   Burnell testified that when defendant picked him up shortly after the crime to drive to the hotel, defendant was sweating and stated that he had to “get the fuck out of here.”   Meanwhile, police investigators went to defendant's father's house in search of defendant where they left business cards with contact information to which no response was ever received.   We therefore conclude that the court did not err in giving the flight charge, as such an instruction finds ample justification in the evidence.

VII.

Defendant pro se contends that the trial court erred in failing to give special instructions to the jury to assess the credibility of the accomplice Burnell Scott, whose “hope of leniency” may have influenced his trial testimony.   We find this argument to be without merit.

Generally, a defendant has a right, upon request, to a specific cautionary instruction that an accomplice's testimony must “be carefully scrutinized and assessed in the context of [the accomplice's] specific interest in the proceeding.”  State v. Begyn, 34 N.J. 35, 54 (1961).   The need for careful scrutiny of an accomplice's testimony arises when the accomplice “testifies for the State and can hope to gain some benefit for himself, such as a lighter penalty, if he has not already been sentenced, or a pardon, reduction in the sentence, or even a dismissal of a pending charge.”  State v. Kintner, 105 N.J.Super. 463, 465–66 (App.Div.), certif. denied, 54 N.J. 247 (1969).   However, the charge carries “risks for the defendant because phrasing is difficult to avoid conveying to the jury an impression that the court is suggesting his guilt solely because the witnesses have admitted theirs and implicated him.”  Begyn, supra, 34 N.J. at 55.   Thus, it is “[c]ertainly ․ not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested.”  State v. Artis, 57 N.J. 24, 33 (1970).

Here, defense counsel did not request accomplice witness instructions.   Moreover, co-defendant Burnell already pled guilty and was sentenced prior to his testimony.   But even assuming error in not giving the special charge, it was harmless

when the instructions are considered as a whole.   The court not only directed the jury to consider specific factors bearing on credibility, as well as “any and all other matters in the evidence that serve to support or discredit a witness's testimony[,]” but also addressed Burnell's testimony that defendant had admitted shooting the victims shortly after the crime:

There is for your consideration in this case an oral statement allegedly made by this defendant to Burnell Scott.   It is your function to determine whether or not the statement was actually made by the defendant and if made whether the statement or any portion of it is credible.

․

In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made as well as all other evidence in this case relating to this issue.

If after consideration of all these factors you determine that the statement was not actually made or that the statement is not credible, then you must disregard the statement completely.   If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.

There was no error, much less plain error, in failing to give additional instruction.

VIII.

Defendant challenges the $5,000 restitution imposed because the court did not conduct a hearing on his ability to pay.   We find no warrant for interference with this sentencing feature.

N.J.S.A. 2C:44–2b provides that

The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:

(1) The victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss;  and

(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.

“In order to impose restitution, a factual basis must exist and there must be an explicit consideration of defendant's ability to pay[,]” State v. Scribner, 298 N.J.Super. 366, 372 (App.Div.) (citations omitted), certif. denied, 150 N.J. 27 (1997), requiring, at a minimum, a summary hearing to protect a defendant's due process rights, State v. Pessolano, 343 N.J.Super. 464, 479 (App.Div.) (citations omitted), certif. denied, 170 N.J. 210 (2001), unless there is no dispute as to the issue.  State v. Orji, 277 N.J.Super. 582, 589–90 (App.Div.1994);  see also State v. Jamiolkoski, 272 N.J.Super. 326, 329 (App.Div.1994) (holding that a hearing other than a summary proceeding must be conducted when there exists a good faith dispute regarding a defendant's ability to pay).

In determining the amount of restitution, N.J.S.A. 2C:44–2c(2) directs that a defendant “pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board” (Board).   Further, a trial court has “considerable discretion in evaluating a defendant's ability to pay.”  State v. Newman, 132 N.J. 159, 169 (1993).   In doing so, the court should consider a defendant's future earning capacity.  State ex rel. R.V., 280 N.J.Super. 118, 122–23 (App.Div.1995).   The court's findings are entitled to deference by a reviewing court.  State v. Locurto, 157 N.J. 463, 469 (1999).

Here, the Board submitted a request for $5,000 that it had expended for Williams's funeral expenses, so the amount of loss suffered was fixed and determined.   As for ability to pay, the court found:

Now, earlier in his presentation [defense counsel] noted that his client has not worked for a number of years, et cetera, et cetera.   The truth is he's young enough and wherever he is incarcerated he will be required to work.   He won't make a lot of money each day but he will be required to work.   And therefore, and assuming he will have a normal life expectancy, unlike poor Mr. Williams, he will be able to pay the fines and the restitution, in my opinion.

We find no error in this determination.   Defendant, who refused to provide financial information during pre-sentencing, failed to set forth a good faith issue regarding his future ability to pay.   In fact, his relatively young age and lengthy incarceration, during which defendant will work and earn limited income, as well as the lack of any meaningful dispute as to ability to pay, obviated the need for a plenary hearing.   See Jamiolkoski, supra, 272 N.J.Super. at 329.   Accordingly, there was no error in ordering restitution here.

IX.

Nor do we find the quantum of sentence excessive.   In imposing consecutive sentences on the murder and attempted murder counts, the court aptly found:

We have multiple victims, a number of separate acts of violence, chases people down the street.   Clearly, ․ in this case there's a basis for this Court to impose that the sentence on count four of the indictment to run consecutive to the sentence imposed on counts one and two of the same indictment.

We conclude that the court appropriately imposed consecutive sentences on defendant for crimes committed against multiple victims.   See State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986).   Moreover, the court's aggregate sentence reflects a proper balancing of the applicable aggravating and mitigating factors, even if we exclude N.J.S.A. 2C:44–1a(1);  is substantially supported by the record;  and does not “shock[ ] the judicial conscience.”   See State v. O'Donnell, 117 N.J. 210, 215–16 (1989).

X.

We have fully considered the remaining issues and are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion.  R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

FN1. “D Brim” is defendant's nickname..  FN1. “D Brim” is defendant's nickname.

FN2. At trial, defense counsel objected only to admission of the autopsy photographs depicting organ damage to Williams.   The court sustained this objection, precluding introduction of the photos.   Thus, admission of the remaining autopsy photographs that were not objected to at trial, which defendant pro se now claims was erroneous, is subject to the plain error standard.   See R. 2:10–2..  FN2. At trial, defense counsel objected only to admission of the autopsy photographs depicting organ damage to Williams.   The court sustained this objection, precluding introduction of the photos.   Thus, admission of the remaining autopsy photographs that were not objected to at trial, which defendant pro se now claims was erroneous, is subject to the plain error standard.   See R. 2:10–2.

PER CURIAM