Opinion
DOCKET NO. A-4786-12T3
05-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL FRYAR, Defendant-Appellant.
Joaeph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-11-3646 and 06-11-3614. Joaeph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Michael Fryar appeals from the Law Division's denial of his petition for post-conviction relief (PCR), R. 3:22-1 to -13, without oral argument or an evidentiary hearing. In his pro se petition, he claimed his sentence was illegal because, among other reasons, during sentencing he had ineffective assistance of counsel. In the supporting brief filed by assigned counsel, defendant further argued he was entitled to oral argument and an evidentiary hearing on his petition. In addition, he argued six specific actions constituting ineffective assistance of counsel, including failure "to conduct an adequate and meaningful pretrial investigation" and "to file the necessary pre-trial motions." Finally, he argued his petition was not procedurally barred.
Defendant argued additional grounds in his petition which are not salient to his appeal.
In his appeal, his counsel limits defendant's argument to:
POINT I
MR. FRYAR IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMMUNICATE WITH HIM PRETRIAL OR FILE A MOTION FOR A WADE HEARING.
In a pro se supplemental brief, defendant argues:
POINT I
THE PCR COURT ERRED IN ITS RULING THAT N.J.S.A. 2C:15-1 MAKES NO DISTINCTION BETWEEN ATTEMPTED ROBBERY AND A COMPLETED ROBBERY AND THAT DEFENDANT COULD NOT BENEFIT HAD THE JURY AT TRIAL BEEN ALLOWED TO
DELIBERATE ON THE LESSER INCLUDED CHARGE OF ATTEMPTED ROBBERY.
POINT II
THE STATE RELIED ON KNOWN FALSE TESTIMONY FROM IT'S PRIMARY WITNESS AGAINST DEFENDANT TO CONVICT HIM OF THE ELEVATED CRIME OF FIRST DEGREE ROBBERY, DENYING DEFENDANT A FAIR TRIAL.
This argument was addressed by the PCR court in the context of ineffective assistance of counsel even though defendant raised the alleged error in the context of a trial court error independent of any mistake by counsel. Because the PCR judge addressed the issue, we do as well.
Although not noted in defendant's brief, R. 2:6-2(a)(1), this argument was not raised below.
We have considered these arguments in light of the record and applicable legal standards. We affirm, essentially for the reasons stated in Judge Alfonse J. Cifelli's comprehensive oral decision.
In our prior consideration of defendant's direct appeal, we summarized the facts leading to his conviction. We stated:
Following a jury trial, defendant Michael Fryar was convicted of armed robbery, N.J.S.A. 2C:15-1 (count one), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count two), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three) and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Thereafter, defendant pleaded guilty to the sole count of a second indictment charging him with second-degree possession of a
weapon by a convicted felon, N.J.S.A. 2C:39-7(b)(1).
. . . .
Following an armed robbery and police chase on the streets of Newark, defendant was arrested and charged under Indictment No. 06-11-3614 with armed robbery, aggravated assault, and weapons offenses. Defendant was separately charged under Indictment No. 06-11-3646 with second-degree possession of a weapon by a convicted felon.
The facts relied upon by the jury supporting defendant's conviction are taken from trial testimony. On May 18, 2006, James Jackson was heading to the New Hope Baptist Church in Newark when he stopped and ate breakfast at the Central Diner, located at Norfolk Street and Central Avenue. He saw defendant inside the restaurant. Jackson had just cashed a check for $ 1000 and held several twenty dollar bills in his hand as he waited to pay for his breakfast. Jackson had the money and some personal papers in his possession.
Jackson then left the restaurant and walked down Dey Street towards the church. He was approached from behind by a man who grabbed his collar and wrestled him to the ground. The man told Jackson "this a robbery," removed a handgun from his belt, and began beating him on the back of the head. The attacker then pointed the handgun at Jackson firing two shots into the air. The gunshots attracted police, and the assailant fled after taking some of Jackson's personal papers and his ATM card.
Jackson described the gun used in the assault and stated his attacker was wearing "black pants and a white T-shirt." When asked, he could not confirm whether the man was wearing a "gray hooded jacket" police
later recovered. After defendant was captured, Jackson saw him in police custody and identified him as his assailant.
On the morning in question, Newark Police Officer Tyrone Moore was on patrol when he heard what sounded like a "firecracker" and saw a bystander waving at him. Moore ran up Dey Street and was approximately "12 to 15 yards" away when he saw "an older male on the ground fighting a younger black male off of him. The black male had a gun in his hand swinging down at the head and face of the older male." Moore shouted "Newark Police" and "drop the gun." Defendant looked toward Moore, grabbed some of Jackson's papers, then fled. Officer Moore stated he got a clear view of the younger man's face.
Moore radioed the incident to the police station, "stopped and looked" at the victim, and "might have asked him was he okay," but he "kept it moving" and was "running after the suspect" because he "wasn't going to let him get away." According to Moore, defendant was wearing a "gray hoodie, blue long shorts, on the street called capri [pants] . . . . and white and red sneakers." Moore chased defendant
all the way out to Central Avenue . . . and, then, . . . when we got to Central [defendant] faked left and went right . . . . At that point before we got to the corner there was a black female walking on the sidewalk . . . he got on the opposite side of the female and he no longer ran at that point. He basically used her as a shield between me and him.
Defendant left the officer's sight, entering a building on a street corner. Still in pursuit, Moore "scaled the wall of
the building" and watched defendant "dip down into" a subway station. The officer radioed defendant's whereabouts to fellow policemen in the area and followed him into the subway station.
Moore lost sight of defendant at that point, then saw him "escalate[] back up the other side" of the subway platform. The officer retrieved defendant's discarded "hoodie." He then saw "something come over the railing" from the street level, which he described as "a black object," and which was later identified as a gun. Outside the subway station, two other police officers apprehended defendant.
Newark Police Officer Emanuel Pereira testified he, along with Sergeant Antonio Vencenzio, responded to Moore's radio calls. Pereira observed an individual matching the assailant's description, "wearing a white T-shirt, blue capri pants, running out of the train station, coming up [from] the train station[,] and [crossing] Norfolk in front of us . . . [w]ith a weapon in his hand." He stated he and Vencenzio attempted to apprehend defendant, who "stopped" and "tossed the weapon over the fence onto the train tracks below." Pereira and Vencenzio tackled defendant from behind and handcuffed him.
After securing defendant in their police cruiser, Pereira and Vencenzio retrieved defendant's gun from the train tracks, removed the gun's magazine, and found one spent shell in the chamber. Moore arrived and identified defendant as Jackson's assailant.
The jury found defendant guilty of armed robbery, assault, and weapons offenses. Prior to the jury's consideration of the second indictment, defendant pled guilty to that charge.
On December 14, 2007, defendant was sentenced to an aggregate term of sixteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with an eighty-five percent parole bar, a five-year term of parole supervision, and applicable fines and assessments.
[State v. Fryar, No. A-4545-07 (App. Div. July 12, 2010) (slip op. at 1-7), certif. denied, 205 N.J. 215 (2010).]
In his direct appeal, defendant argued "the cumulative impact of the prosecutor's inappropriate remarks made during summation deprived him of a fair trial and asserting errors resulted in an illegal or excessive sentence." Id. at 2. We affirmed his conviction, but remanded for a correction to his sentence. Id. at 3. The Supreme Court denied defendant's petition for certification. Fryar, supra, 205 N.J. at 215.
In his November 21, 2012, consideration of defendant's PCR petition, Judge Cifelli addressed each of defendant's arguments and found they were either procedurally or substantively barred. Specifically addressing defendant's first claim on appeal, counsel's failure to communicate with defendant or conduct a meaningful pretrial investigation, the PCR court found nothing in the record to substantiate defendant's allegations. The judge concluded:
[T]here was ample contact between the defendant and his attorney to afford the attorney and the petitioner an ample
opportunity and time to properly prepare for his defense and as to the charges against him. I also note that the petition fails to provide this [c]ourt nor to indicate any particulars as to what prejudice was, in fact, suffered or contributed to his condition as a result of the alleged inefficiencies or deficiencies of counsel's representation.
The judge reached a similar conclusion as to defendant's claims regarding preparation for trial by obtaining and reviewing discovery. The judge determined from the record that trial counsel had performed his function in that regard:
[F]rom my review of the record, it appears that the events chronology and the criminal histories of witnesses were, in fact, provided by the State six days prior to the commencement of trial. Certainly, . . . within sufficient time for an attorney to review the same and ample time to prepare for any possible cross examination of the potential witnesses and/or for any additional investigation.The judge also noted that most of the State's witnesses were law enforcement officers "without any criminal history. And the victim's criminal record was minimal at best."
The judge also addressed defendant's claim that the trial court failed to properly instruct the jury. The judge stated:
I, also, find nothing in the record below to support petitioner's claim that the appropriate charge against him should have been attempted robbery as opposed to robbery. I specifically note that N.J.S.A. 2C:15-1 makes no distinction between "an attempted robbery and a robbery." Including
attempted robbery in the definition of a robbery.The judge explained that "a change of charge would have provided . . . no assistance to the defense. And more than likely would not have resulted in anymore lenient plea [offer] on behalf of the State."
As to defendant's argument concerning counsel's failure to pursue a Wade hearing, the PCR court relied on our holding in State v. Santoro, 229 N.J. Super. 501 (App. Div. 1989), certif. denied, 121 N.J. 593 (1990), and noted that it was defendant's burden to prove before trial an "identification . . . was impermissibly suggestive." Quoting from our decision in State v. Ortiz, 2 03 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985), the judge stated "defendant, . . . [must make] at least a bare evidentiary showing that the police conducted a 'questionable identification procedure,' that denied him a constitutional right." The judge then listed the other evidence in the trial record to support defendant's identification as the perpetrator, and concluded that even if a Wade hearing were pursued by trial counsel, "the result of the hearing appears to be inevitable that the identification of this defendant based on everything else that was presented certainly . . . would have tended to be reliable." The judge listed the identification evidence he relied upon to include,
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
the identification of the defendant by the victim; identification of the defendant by Officer Moore; testimony as to the clothing that was worn or observed by these witnesses to be worn by the defendant at the time of the incident; the clothing found by Officer Moore on the subway attributable to the defendant and recovered during the chase; identification of defendant by Officer [Pereira] as to wearing certain clothing confirming the testimony of Officer Moore; the weapon that was observed by the officers as to be in the possession of the defendant and subsequently recovered by Officer [Pereira] at the subway station; previously witnessed by Officer Moore as being thrown there by the defendant.He concluded trial counsel's alleged deficiency would not have changed the result in this case.
Finally, Judge Cifelli explained why he did not order an evidentiary hearing as to defendant's petition. The judge reviewed Rule 3:22-10 and noted a PCR court was not required to order a hearing unless a defendant's petition establishes a prima facie claim of ineffective assistance of counsel, which defendant's did not in this case. He then concluded by noting defendant failed to meet his burden as his allegations were "vague, speculative, without any substance and d[id] not warrant [a hearing]."
The PCR court entered an order denying relief. This appeal followed.
Criminal defendants are entitled to effective assistance of counsel at all stages of adjudication. State v. Hess, 207 N.J. 123, 153 (2011) (citing McConnell v. Rhay, 393 U.S. 2, 4, 89 S. Ct. 32, 34, 21 L. Ed. 2d 2, 4 (1968)). That right is guaranteed under the Sixth Amendment, Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691 (1984), and under the N.J. Const., art. I, ¶ 10, under which "a criminal defendant is entitled to the assistance of reasonably competent counsel." State v. Fritz, 105 N.J. 42, 53-58 (1987).
A defendant's right to effective counsel is violated where "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland and adopted by our Supreme Court in Fritz, supra, 105 N.J. at 58. First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Finally, a defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
"In determining whether defense counsel's presentation was deficient, [j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-319 (2005) (alteration in original) (citation and internal quotation marks omitted).
Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"
[Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95).]
"Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.'" State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (alteration in original) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
In deciding the application, a PCR court may exercise its discretion to grant or deny an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). However, an evidentiary hearing should ordinarily be granted where the relevant facts lie outside the trial record and the attorney's testimony may be required. State v. Porter, 216 N.J. 343, 354 (2013) (citation and internal quotation marks omitted). A defendant is entitled to an evidentiary hearing if he has made a prima facie showing of his claim, State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (citation omitted), certif. denied, 192 N.J. 66 (2007), meaning he has demonstrated a "reasonable likelihood of succeeding" on the merits. Preciose, supra, 129 N.J. at 463. To this end, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel[, but] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(e)(2) ("A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative . . . .").
A hearing should be held if the petition involves genuine issues of material fact "which cannot be resolved by reference to the existing record." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim" requiring a hearing. Preciose, supra, 129 N.J. at 462-63.
Because the PCR court did not conduct an evidentiary hearing, we review the "factual findings and legal conclusions" de novo to determine if we should disturb the PCR court's determination. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The first step in our review is to determine whether defendant satisfied the first prong of the Strickland test - "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed. . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). If so, we next determine under the second prong of the Strickland test, whether defendant proved there is a "reasonable probability" that counsel's deficient performance affected the outcome of his matter. Fritz, supra, 105 N.J. at 52.
Applying these standards to our review of the PCR court's determination, we find defendant's arguments unpersuasive. Suffice it to say, we agree an evidentiary hearing was not warranted because petitioner failed to establish a prima facie claim of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 463. Moreover, the fact defendant believed his attorney failed to adequately communicate with him is not per se ineffective assistance of counsel, especially where, as here, "defendant [did] not specifically outline what was deficient" about counsel's level of communication or how it would have affected the outcome. State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), cert. denied, 194 N.J. 444 (2008).
Similarly, there was no evidence that counsel could have argued the victim's out of court identification was suggestive, and, regardless if defendant's trial counsel asked for a Wade hearing, one was not required unless defendant presented "evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification." State v. Chen, 208 N.J. 307, 311 (2011).
Like all evidence, the admission of identification evidence "is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968) (citations omitted). A court does not abuse its discretion where it admits evidence of an out-of-court identification, if the procedure followed "was [not] so unnecessarily suggestive and conducive to irreparable mistaken identification that [a defendant] was denied due process of law." Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967).
"A Wade hearing is required to determine if the identification procedure was impermissibly suggestive and, if so, whether the identification is reliable. The trial court conducts a Wade hearing to determine the admissibility of the out-of-court identifications." State v. Micelli, 215 N.J. 284, 288 (2013) (citation omitted).
In deciding whether to admit identification evidence, New Jersey courts apply a "two-step analysis [which] requires the court first to ascertain whether the identification procedure was impermissibly suggestive and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). As to the first prong, our courts have recognized that "one-on-one showups are inherently suggestive . . . because the victim can only choose from one person, and, generally, that person is in police custody." Id. at 504. However, a showup identification is not, in and of itself, automatically deemed impermissibly suggestive. Ibid. The probability of suggestiveness is enhanced where the police or others have told the witness information that could "influence[] the [witness] to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Id. at 504-06 (citing State v. Williams, 545 P.2d 938, 939 (Ariz. 1976) (finding showup was impermissibly suggestive when "[t]he victim was told that she was to observe a man who had been apprehended driving her car"); State v. Davis, 767 A.2d 137, 142-43 (Conn. App. Ct.), certif. denied, 770 A.2d. 31 (2001) (showup impermissibly suggestive when officer told the victim, "We got him, we got him . . . . We had two boys. You got to tell which one, who it is.")); but see id. at 505 (citing United States v. McGrath, 89 F. Supp. 2d 569, 581 (E.D. Pa. 2000), aff'd, 80 Fed. Appx. 207 (3rd. Cir. 2003) (showup not impermissibly suggestive where victim observed suspect in handcuffs, seated in patrol car, and the officer's comment merely informed witness that a suspect had been apprehended)).
In assessing the second prong, reliability, the court "must consider the totality of the circumstances surrounding the identification procedure," id. at 506, and weigh the relevant factors "against the corrupting effect of the suggestive procedure." State v. Madison, 109 N.J. 223, 240 (1988). Specifically, the court must consider
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
[Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).]
The timing of a showup is of significant importance as the risk of misidentification may be lower if it is conducted immediately after the crime. State v. Carter, 91 N.J. 86, 130 (1982) (citing Stewart v. United States, 418 F.2d 1110, 1113 (D.C. Cir. 1969)); see also Henderson, 208 N.J. 208, 259 (2011) ("[T]he benefits of a fresh memory seem to balance the risks of undue suggestion."); State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding witness' showup identification ninety minutes after observation).
As we previously found, the showup between defendant and his victim occurred shortly after the commission of the crime and the ensuing police chase. The victim had an opportunity to see defendant before and during the assault. Most significant, there was no evidence the showup was suggestive in any fashion through police officer's comments or otherwise. Finally, as the PCR judge observed the other evidence of defendant's identity was overwhelming.
We conclude the PCR judge correctly determined defendant failed to prove a prima facie claim of ineffective assistance of counsel based on trial counsel's failure to pursue a Wade hearing and, even if she did, the outcome of his trial would not have been different.
Turning our attention to defendant's argument the trial court erred by not charging attempted robbery, we initially note that this issue should have been raised in defendant's direct appeal, but he chose not to do so. Accordingly, it should not have even been considered by the PCR court. R. 3:22-4(a).
In deciding the issue, the PCR court determined there was no difference in this case if defendant was charged with attempted robbery or robbery as they both constitute the same offense. N.J.S.A. 2C:15-1. Under the circumstances of this case, the judge was essentially correct. However, "attempted robbery is . . . a crime under the Code." It "is an appropriate charge when a defendant is apprehended before reaching the potential robbery victim." State v. Farrad, 164 N.J. 247, 263 (2000). The facts in this case did not support a charge of attempted robbery because by the time police arrived, defendant had already used force against Jackson and removed his papers and other belongings.
Robbery is defined in the Criminal Code as follows:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
[N.J.S.A. 2C:15-1.]
Finally, defendant never raised the issue of false testimony before the PCR court and, accordingly, we choose not to consider it in this appeal. "Because that issue never was raised before the trial court, because its factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. 1, 18-19 (2009); see also State v. Galicia, 210 N.J. 364, 383 (2012).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION