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March 11, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Donqua Thomas

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1279-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (33)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.8K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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-1279-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONQUA THOMAS,

Defendant-Appellant.

---

Argued January 27, 2026 – Decided March 11, 2026

Before Judges Firko and Vinci.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 21-05-0172.

Ethan Kisch, Assistant Deputy Public Defender, argued
the cause for appellant (Jennifer N. Sellitti, Public
Defender, attorney; Ethan Kisch, of counsel and on the
brief).

Timothy P. Kerrigan Jr., Chief Assistant Prosecutor,
argued the cause for respondent (Camelia M. Valdes,
Passaic County Prosecutor, attorney; Leandra L.
Cilindrello, of counsel and on the brief).
Appellant filed a supplemental brief on appellant's
behalf.

PER CURIAM

Defendant Donqua Thomas appeals from a judgment of conviction entered

on December 5, 2023, after he was convicted by a jury of first-degree murder,

N.J.S.A. 2C:11-3(a)(1) or (2), and related weapons offenses. We affirm.

I.

The State alleges that on October 29, 2020, defendant shot Remy Lee four

times in the parking lot of her apartment complex on Christina Place in Paterson.

Lee was nine months pregnant with defendant's child. She died from her

injuries, but her unborn child was delivered by emergency cesarean section and

survived.

A Passaic County grand jury returned an indictment charging defendant

with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1);

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and

second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1).

We summarize the facts developed at defendant's seven-day trial in June

1. Lee's mother, Charlene Keeling, testified that she was in Lee's apartment

watching Lee's seven-year-old daughter while Lee went out for two routine

A-1279-23
2
medical appointments when she heard gunshots. A neighbor came to the door

and told her Lee had been shot. Keeling went outside and found Lee on the

ground next to her car.

Keeling "grabbed [Lee's] hands, and . . . started asking her what

happened, who did this? And [Lee] did[ not] say anything in the beginning.

And [Keeling] kept . . . asking . . . who did this? And [Lee] said Qua." Keeling

understood "Qua" referred to defendant. Keeling testified that Lee said "he[ is]

in a red car or he ran to a red car," and then "she said Ma, Qua shot me. The last

thing [Lee] said was, I can't breathe."

One of Lee's neighbors, Della McCall, who was chief of staff to the mayor

of Paterson, testified she heard three gunshots that "were, kind of, one after

another." She went outside and saw Lee on the ground. McCall called

Paterson's director of public safety, Jerry Speziale, for help. Before Speziale

arrived, McCall heard someone in the crowd ask Lee, "who did it?" and she

"heard [Lee] say, Qua." McCall heard Lee say "Qua . . . that first time. And

then [she] heard her say it again. And then she said it again."

McCall was with Lee for "[m]aybe, . . . five or six, seven minutes" before

Speziale arrived. McCall testified that after Speziale arrived and began

providing aid to Lee, she "kept saying, I do[ not] want to die, I do[ not] want to

A-1279-23
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die. And then she [asked] . . . Speziale, why did . . . he do this to me? . . . [W]hy

would my baby father do this to me?"

Speziale testified that he received McCall's call at "about 1:38, 1:39" in

the afternoon. "A few minutes" later, he arrived at the scene and observed Lee

on the ground in the parking lot. Speziale "was holding her head and . . . telling

[her] to please calm down." Lee said to him "two times she sa[id] I[ am] going

to die, I can[not] breathe, I[ am] going to die, I can[not] breathe. Three times

she sa[id] why did he do this to me, my baby father, why did he do this to me,

my baby father."

Latressa Green, an off-duty law enforcement officer who lived on the

same street, testified that she heard the gunshots and ran to her window. She

"saw a lady screaming and falling, like dropping . . . in the parking lot in

between the cars next to the sidewalk." She went outside and started providing

aid to Lee. Green was asking Lee "who . . . shot her, did she see anything. And

she . . . whisper[ed] like a name, and [Green] was[ not] sure what it

was. . . . [Lee] said Qua, but [Green] was[ not] exactly sure what [she] was

hearing because [she] was[ not] familiar with him. [She] did[ not] know the

name, [she] was[ not] sure."

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4
Former Paterson Police Department (PPD) Detective John Scully testified

that he responded to the scene of the shooting. He testified it was "raining very

hard that day." He found two "9[-]millimeter shell casing[s]." One shell casing

was on the sidewalk, and the other was "in the dirt . . . at the edge of the

sidewalk." He also recovered three bullets at the scene. Police did not recover

a firearm.

Gerald Burkhart, an expert in the field of firearms examination employed

by the New Jersey State Police (NJSP), testified that the two shell casings were

"discharged in one firearm to a practical degree of certainty." Additionally, "the

three bullet specimens . . . were discharged from the same firearm to a practical

degree of certainty." Burkhart testified that the shell casings were not

"process[ed] for fingerprints or DNA" because the police "put in their note, no

[latent] print or DNA search [wa]s needed."

PPD detective Brian Culmore responded to the scene and retrieved

surveillance video from three cameras at the apartment complex that covered

the area of the shooting. 1 At approximately 10:43 a.m. on October 29, 2020, a

red Dodge Dart sedan with tinted windows parked in a parking spot in front of

1
The surveillance video that was played for the jury is not included in the
appellate record.
A-1279-23
5
Lee's apartment building, where it remained until Lee was shot. At 1:33 p.m.,

Lee arrived home in her car and backed into the parking space next to the Dodge

Dart. After Lee exited her vehicle, she was between her car and the Dodge Dart

and then fell to the ground. At 1:36 p.m., the Dodge Dart drove away from the

scene.

PPD detective Jovan Candelo testified he located additional surveillance

video from "throughout the city" that allowed him to track the movements of the

Dodge Dart from Hamilton Avenue in Paterson to the scene of the shooting. On

October 30, Detective Candelo interviewed Keeling and showed her the

surveillance video he obtained of the Dodge Dart on Hamilton Avenue. Keeling

identified the driver of the vehicle as defendant. Defendant was charged with

murder and voluntarily surrendered the following day.

Detective Candelo was "able to get a partial plate" from the surveillance

video and obtained "a list of Dodge Darts that were registered in the city with

that partial plate." One of the vehicle owners identified on that list was Asasha

Thomas, who lived on Hamilton Avenue. In November 2020, Detective Candelo

contacted Thomas, who was on vacation in Florida, and she told him defendant,

who is her cousin, "had possession of the vehicle" on October 29. Law

enforcement was not immediately able to locate the vehicle. On December 12,

A-1279-23
6
the vehicle was located by the Wallington Police Department and towed to the

PPD "hangar" where it was searched pursuant to a warrant.

Detective Candelo testified that PPD received multiple 911 calls

following the shooting. At 1:54 p.m. on October 29, one caller stated they were

on Katz Avenue and "saw someone with a yellow hoodie crawling out of the

bushes and heading towards Redwood Avenue." PPD "did not follow up with

that information" because the call "did[ not] corroborate with anything the

witnesses said, any of the eyewitness statements [or] with any of the video

surveillance that [they] received."

Asasha Thomas testified that defendant is her cousin and his nickname is

"Qua." On October 29, 2020, she owned a 2013 red Dodge Dart with "really

dark" tinted windows. In September 2020, she "swap[ped] cars" with defendant

and allowed defendant to use the Dodge Dart. Thomas only had one set of keys

to the vehicle, which she gave to defendant. Thomas testified that defendant

was driving the Dodge Dart on October 29.

At that time, Thomas was living on Hamilton Avenue. On October 29,

she was preparing "[t]o move [her] girlfriend back to Florida." Defendant

helped them with the move. Thomas needed to rent a truck to make the trip. At

A-1279-23
7
approximately 5:00 a.m., defendant arrived at her residence in the Dodge Dart

and helped her move items into another vehicle.

Defendant parked the Dodge Dart in front of Thomas's residence on

Hamilton Avenue and used the other vehicle to take her and her girlfriend to

rent a truck. Defendant took them to "LaGuardia Airport first and then [they]

came back over to either Clifton or Wayne . . . where [Thomas] got the rental

from" around "9:30, 10:00 [a.m.]" Thomas and her girlfriend then left for

Florida in the rental truck.

Jessica Otzhy, an investigator employed by the NJSP, testified as an

expert in historical cell site analysis without objection. Otzhy prepared a report

using GeoTime software to "analyze [historical cell site] data and represent it in

a visual form" showing "what cell sites [defendant's] device connected to during

a specified time period." In this case, the "call detail records" she used were

provided by defendant's cell phone carrier, T-Mobile.

Otzhy testified she completed "multiple trainings" regarding historical

cell site analysis including a "GeoTime level 1 training" course. Otzhy also

completed other "more specialized" courses on "how records from one specific

carrier differ from another," how to analyze "different types of data," and

A-1279-23
8
"GeoTime's level 2 training." Otzhy prepared more than 200 historical cell site

analysis reports using GeoTime.

To prepare her report, Otzhy used the "industry average" for the coverage

area of a cell site, which is "a mile and a half out from the antenna" because

"that[ is] an average that has been set by the [F]BI" and "[t]hat[ is] the standard

that [the NJSP] follow[ed] as well." She acknowledged that is "the average, but

in some cases that might differ." "For example, if you[ are] in a city, you have

a lot more people, who have a lot more demand for a connection to be made, so

there[ is] going to be more cell sites available." In that case, "the individual

coverage of some of those sites might be shorter since there[ are] more of them

around."

The call detail records Otzhy used included all voice calls and text

messages to and from defendant's cell phone. The records identified the

"switch" or "cell site that handled the" calls and texts. The records also

identified which "sector [of the cell site] handled the" call or text. The GeoTime

software "will automatically map every event that has a location data within the

call records."

Otzhy testified that on October 29, 2020, defendant's phone received an

incoming call at 5:14 a.m. that connected to a cell site in Paterson, and another

A-1279-23
9
incoming call at 6:35 a.m. "that connected to a cell site in Manhattan." His

phone then "ha[d] seven events that connected to a cell site which provided

coverage to the homicide location between 11:05 a.m. and 12:15 p.m. that day."

The "homicide location [was] well within th[e] mile and a half coverage" of that

cell site. Otzhy testified she could have requested information "about the

individual coverage of each cell site" from the carrier, but she did not have that

information in this case because the carriers "do[ not] send that . . . with the call

detail records."

Defendant did not testify. The sole defense witness was Carl Leisinger,

III, who testified as a firearms expert. He opined that because "[t]he shells were

[found] outside of" the vehicle, "the possibility of somebody shooting within the

car was very remote, possibly not at all." His "synopsis of the scene [was] that

the shooter was obviously outside their car." On cross-examination, he

conceded that "the windows" of the Dodge Dart were "tinted" and he could not

see if there was a person in the car "with a gun outside the window." He also

conceded that whether the shell casings would have remained inside the car

"depends [on] where [the shooter] had his hand."

On June 21, 2023, the jury found defendant guilty on all counts. After an

appropriate merger, he was sentenced to life in prison subject to a thirty-year

A-1279-23
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period of parole ineligibility for first-degree murder, and concurrent sentences

of ten years in prison for the weapons offenses. A conforming judgment of

conviction was entered on December 5, 2023. This appeal followed.

II.

On appeal, defendant raises the following points for our consideration.

POINT I

THE TRIAL COURT ERRED IN PERMITTING THE
STATE TO INTRODUCE CUMULATIVE AND
PREJUDICIAL DYING DECLARATION
TESTIMONY.

....

B. The dying declaration testimony was
cumulative and resulted in undue prejudice.

POINT II

THE STATE'S EXPERT OFFERED INADMISSIBLE
NET OPINION TESTIMONY CONCERNING THE
LOCATION OF [DEFENDANT]'S CELL PHONE.

A. Expert testimony about cell phone location
cannot be based on unverified distance estimates.

B. The State's expert used an unverified distance
estimate to determine the range and coverage
areas of cell towers, create coverage maps, and
ultimately place [defendant] at the crime scene.

A-1279-23
11
POINT III

THE STATE'S REPEATED MISCONDUCT DURING
SUMMATION DEPRIVED [DEFENDANT] OF A
FAIR TRIAL.

A. New Jersey courts hold prosecutors to a high
bar–especially during summation.

B. The State testified about forensic facts not in
evidence to fill a significant hole in its case.

C. The State shifted the burden of proof to
[defendant] by incorrectly asserting that he
controlled the evidence.

D. The State disparaged [defendant]'s prosaic
third-party guilt defense as a "conspiracy" theory
that there was another "man on a grassy knoll"
who killed the victim.

E. Taken together, the State's repeated
misconduct during summation deprived
[defendant] of a fair trial.

POINT IV

THE TRIAL COURT FAILED TO PROVIDE
PROPER JURY INSTRUCTIONS ON THREE
CRUCIAL MATTERS.

....

B. The trial court failed to instruct the jury on
third-party guilt.

A-1279-23
12
C. The trial court failed to instruct the jury on
how to assess . . . Lee's purported out-of-court
identifications of [defendant].

D. The trial court failed to provide the jury
tailored guidance on how to evaluate dying
declarations.

POINT V

THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DENIED [DEFENDANT] DUE PROCESS
AND A FAIR TRIAL.

In a supplemental brief, defendant raises the following point for our

consideration.

POINT I

TRIAL COURT ERRED TO ALLOW THE DYING
DECLARATION IN TRIAL WHICH SHOULD HAVE
BEEN RULED INADMISSIBLE

A. Dying [d]eclaration should have been inadmissible
under N.J.R.E. 804(b)(2) because it was not made
voluntarily but as a result of undue pressure.

B. Dying [d]eclaration should have been inadmissible
under N.J.R.E. 403, because its probative value was
substantially outweigh[ed] by undue prejudice.

C. Defendant incorporates herein . . . [the] brief, by
trial counsel . . . dated July 7, 2022, in support of pre-
trial motion to suppress the [d]ying [d]eclaration, with
particular emphasis on sub point c [arguing admission
of dying declaration testimony violates "defendant's

A-1279-23
13
right to confront witnesses and his right to [d]ue
[p]rocess of [l]aw and a [f]air [t]rial."]

III.

Defendant contends the court erred by permitting the State to introduce

testimony regarding Lee's dying declarations and that the testimony was

cumulative and unduly prejudicial. We are unconvinced.

We defer to a trial court's evidentiary rulings unless the record reveals the

trial court abused its discretion. State v. Garcia, 245 N.J. 412, 430 (2021).

Deference is rooted in understanding that "the decision to admit or exclude

evidence is one firmly entrusted to the trial court's discretion." State v. Prall,

231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins.,

202 N.J. 369, 383-84 (2010)). Under this standard, to reverse a court's

evidentiary ruling, the court "must be convinced that 'the trial court's ruling is

so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting

State v. J.A.C., 210 N.J. 281, 295 (2012)).

Pursuant to N.J.R.E. 804(b)(2), a dying declaration is not excluded by the

hearsay rule. The Rule provides, "[i]n a criminal proceeding, a statement made

by a victim unavailable as a witness is admissible if it was made voluntarily and

in good faith and while the declarant believed in the imminence of declarant's

impending death." To satisfy the "belief of imminent death" requirement, the

A-1279-23
14
proponent of a dying declaration must establish the declarant had "a settled

hopeless expectation that death is near at hand, and what is said must have been

spoken in the hush of its impending presence." State v. Williamson, 246 N.J.

185, 201 (2021) (quoting Shepard v. United States, 290 U.S. 96, 100 (1933)).

Of course, even if evidence could fall under an applicable exception, the

court in its role as gatekeeper must "ensure that evidence admitted at trial is

sufficiently reliable so that it may be of use to the finder of fact who will draw

the ultimate conclusions of guilt or innocence." State v. Michaels, 136 N.J. 299,

316 (1994); see N.J.R.E. 403(a) (evidence "may be excluded if its probative

value is substantially outweighed by the risk of . . . [u]ndue prejudice, confusion

of issues, or misleading the jury").

Prior to trial, defendant moved to preclude the State from offering dying

declaration testimony from Keeling and Speziale. On October 25, 2022, the

court conducted a hearing pursuant to N.J.R.E. 104, at which Keeling and

Speziale testified. On November 1, the court denied defendant's motion in an

oral opinion.

The court found the witnesses credible and that the State met its burden to

demonstrate the dying declaration testimony was admissible pursuant to

N.J.R.E. 804(b)(2). The court found Lee's statements "were voluntarily made

A-1279-23
15
and not the product of und[ue] pressure." The court also found the statements

were made "in good faith while the victim declarant believed in the imminence

[of death]." Specifically, Lee "was aware that she was shot and was having

trouble breathing" and was "conscious, alert, and able to communicate when she

made the statements." The court concluded, "based upon a totality of the

relevant circumstances . . . the statements unquestionably satisf[ied] the

elements of [N.J.R.E.] 804(b)(2)."

The court rejected defendant's confrontation clause argument based on our

Supreme Court's decision in Williamson, "holding that dying declaration

testimony . . . do[es] not violate the . . . Confrontation Clause of the U[nited]

S[tates] Constitution or the New Jersey Constitution." The court also rejected

defendant's argument based on N.J.R.E. 403 because "the probative value of the

statements [was] not substantially outweighed by the risk of und[ue] prejudice,

confusion of the issues, or misleading the jury."

During McCall's trial testimony on June 6, 2023, defendant objected to

any additional dying declaration testimony because McCall did not testify at the

pretrial hearing and "it[ was] cumulative." The court conducted a N.J.R.E. 104

hearing outside the presence of the jury, at which McCall testified. The court

A-1279-23
16
found her testimony regarding Lee's statements met "all of the requirements of

[a] dying declaration" and permitted "the State to elicit that testimony from her."

The court "counsel[ed] the State . . . three witnesses is giving the jury the

benefit of all the information that they need on this particular point." The court

added, "if there are four, five, or six witnesses that the State is going to attempt

to elicit this information from then the defense's point that this is cumulative

would have a lot more bearing on this [c]ourt's decision."

After a break in the proceedings, the State informed the court that "in light

of [the court's] ruling[,] [the State] did get some clarification from . . . Green."

Green "said [she] heard something and it did[ not] sound like a real name and

then she said Quay." The State then advised the court when Green testified "it

might take a delicate touch to make sure we do[ not] do anything that would

constitute error."

Green testified several days later, on June 13. During her direct

examination, she testified:

[THE STATE:] [W]ere you talking to [Lee]?

[GREEN:] Yes. I was asking her questions. I was
asking her who . . . shot her, did she see anything. And
she did . . . whisper like a name, and I was[ not] sure
what it was. By that time . . . her mom had [come]
outside and started to attend to her and she put her ear
to her . . . face and then her mom repeated the name.

A-1279-23
17
[THE STATE:] So you did[ not] hear the victim say
anything[?]

[GREEN:] . . . I did hear [her] say. . . . [S]he said Qua,
but I was[ not] exactly sure what I was hearing because
I was[ not] familiar with him. I did[ not] know the
name, I was[ not] sure. And I asked again. And by that
time her mother had come out and she spoke[] to her.

Defendant did not object to Green's trial testimony.

We are satisfied the court did not misapply its discretion by permitting

Keeling, Speziale, and McCall to testify regarding Lee's dying declarations.

There is no basis for us to disturb the court's determination that their testimony

regarding Lee's dying declarations was admissible pursuant to N.J.R.E.

804(b)(2). The court's finding that Lee's statements were "made voluntarily and

in good faith . . . while [she] believed in the imminence of [her] impending

death" is amply supported by the record.

We are also persuaded the court properly applied N.J.R.E. 403 and

determined the probative value of the testimony was not substantially

outweighed by the risk of undue prejudice, confusing the issues, or misleading

the jury. There is no reason for us to disturb the court's decision to admit the

dying declaration testimony.

Because defendant did not object to Green's testimony, we review for

plain error. Plain error is one "clearly capable of producing an unjust result."

A-1279-23
18
State v. Singh, 245 N.J. 1, 13 (2021) (quoting R. 2:10-2). The "error will be

disregarded unless a reasonable doubt has been raised whether the jury came to

a result that it otherwise might not have reached." Ibid. (quoting State v. R.K.,

220 N.J. 444, 456 (2015)).

There is no basis to find plain error here. Green's testimony amounted to

little more than a brief reference to her recollection that Lee said "Qua." The

State did not elicit any other dying declaration testimony from Green beyond

that single reference, which did not add anything the jury had not already heard

from the other witnesses. Under the circumstances, we are satisfied Green's

testimony was not "clearly capable of producing an unjust result." Id. at 13.

IV.

Defendant contends the trial court erred in admitting inadmissible net

opinion testimony concerning the location of his cell phone. Specifically, he

argues Otzhy based her opinions on a one-and-a-half-mile industry average "set

by the [F]BI" without "consider[ing] any facts or reliable data from which the

actual range and coverage areas of the cell towers in Paterson could be

calculated," resulting in a net opinion. We are not persuaded.

We review a trial court's determination that a witness is qualified to

present expert testimony pursuant to N.J.R.E. 702 and review for abuse of

A-1279-23
19
discretion. Garcia, 245 N.J. at 430. Such a determination "will only be reversed

for manifest error and injustice." State v. Rosales, 202 N.J. 549, 562-63 (2010)

(quoting State v. Jenewicz, 193 N.J. 440, 455 (2008)).

N.J.R.E. 702 and N.J.R.E. 703 govern the admissibility of expert

testimony. Townsend v. Pierre, 221 N.J. 36, 53 (2015).

Expert testimony must be offered by one who is
"qualified as an expert by knowledge, skill, experience,
training, or education" to offer a "scientific, technical,
or . . . specialized" opinion that will assist the trier of
fact, see N.J.R.E. 702, and the opinion must be based
on facts or data of the type identified by and found
acceptable under N.J.R.E. 703.

[Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011).]

"[A] court must ensure that the proffered expert does not offer a mere net

opinion." Ibid. The net opinion rule, a corollary of N.J.R.E. 703, "forbids the

admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data." Townsend, 221 N.J. at 53 -54 (quoting Polzo v.

County of Essex, 196 N.J. 569, 583 (2008)). "The rule requires that an expert

'give the why and wherefore' that supports the opinion, 'rather than a mere

conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale,

LLC, 216 N.J. 115, 144 (2013)).

A-1279-23
20
Defendant argues that Otzhy's expert testimony constituted improper "net

opinion" under our Supreme Court's decision in State v. Burney, 255 N.J. 1

(2023), which was issued after this trial. In Burney, the Court noted that

"[h]istorical cell-site analysis uses cell phone records and cell tower locations

to determine, within some range of error, a cell phone's location at a particular

time." 255 N.J. at 21 (quoting United States v. Hill, 818 F.3d 289, 295 (7th Cir.

2016)). "[C]ell site analysis simply confirms that the phone was somewhere

within the coverage radius of the cell tower during the recorded activity." Id. at

1. "Across the nation, state and federal courts have accepted expert testimony

about cell site analysis for the purpose of placing a cell phone within a 'general

area' at a particular time." Id. at 21-22.

In Burney, an FBI agent serving as an expert for the State testified that

cell towers in the area in question "had an approximate coverage range with a

radius of about one mile" and "[t]hat estimated radius was based solely on [the

special agent's] 'rule of thumb' for the area—a 'good approximation' based on

his training and experience." Id. at 5. The agent "relied on that approximation

to place defendant's cell phone at or near the crime scene at the time of the

robbery" that the defendant was accused of committing. Ibid.

A-1279-23
21
The Court concluded the agent's testimony was "an improper net opinion"

"because the testimony was based on nothing more than [the agent's] personal

experience. . . ." Id. at 25. It observed the agent had not substantiated that his

one-mile-radius approximation of the cell tower range "is common practice in

cell tower analysis, or that his one mile 'rule of thumb' had been used by any

other agent or radio frequency engineer." Id. at 24. The Court further noted the

agent "did not review the height of the [pertinent tower], did not review its rated

power, did not calculate the estimated absorption of radio energy by nearby

buildings or hills, did not review the specific angle of the tower's antenna, and

did not review any diagnostic data from the tower" or "perform any tests of the

[tower's] area of signal coverage." Id. at 24-25.

However, the Court did not suggest that, "to be admissible, expert

testimony must consider all of the factors listed above." Id. at 25. At its core,

Burney clarified that "our 'net opinion' doctrine under New Jersey evidence law

weeds out experts who base their opinions on purely personal standards or 'rules

of thumb.'" State v. Olenowski, 255 N.J. 529, 586 n.28 (2023).

In this case, unlike in Burney, the State's expert did not attest to any

personal "rules of thumb." Instead, she based her opinions on the "industry

average" that the coverage area of a cell site is "a mile and a half out from the

A-1279-23
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antenna" because "that[ is] an average that has been set by the [F]BI" and "that

[ is] the standard that [the NJSP] follow[ed] as well." Thus, she established the

average coverage area she used was "common practice in cell tower analysis"

and "had been used by any other agent or radio frequency engineer" as required

by Burney, 225 N.J. at 24.

In addition, Otzhy acknowledged that is "the average, but in some cases

that might differ." She testified, "[f]or example, if you[ are] in a city, you have

a lot more people, who have a lot more demand for a connection to be made, so

there[ is] going to be more cell sites available." In that case, "the individual

coverage of some of those sites might be shorter since there[ are] more of them

around."

More importantly, contrary to defendant's argument, Otzhy did not testify

that his phone was at the location of the shooting. Rather, she testified

defendant's phone connected to a cell site in Paterson that was "well within" one

and a half miles from the "homicide location" seven times between 11:05 a.m.

and 12:15 p.m. on October 29, 2022. Effectively, she testified only that

defendant's phone was in the general area of the shooting more than one hour

before the shooting occurred. As the Court recognized in Burney, state and

federal courts across the nation "have accepted expert testimony about cell site

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analysis for the purpose of placing a cell phone within a 'general area' at a

particular time." Id. at 21-22.

We are satisfied Otzhy's testimony was not net opinion and did not run

afoul of our Supreme Court's decision in Burney. The court properly admitted

her testimony and opinions.

Even if we were to find otherwise, defendant did not object to Otzhy's

testimony and cannot establish plain error. The evidence of defendant's guilt

independent of the historical cell site analysis is strong. Thomas's testimony

established defendant was driving the Dodge Dart on the day of the shooting,

surveillance video showed defendant driving the vehicle from Thomas's

residence on Hamilton Avenue to the scene and showed the vehicle waiting at

Lee's residence for over two hours then driving away after she was shot, and

Lee's dying declarations identified defendant as the shooter. Given the

abundance of incriminating evidence, the admission of any net opinion

testimony from Otzhy was not "clearly capable of producing an unjust result."

Singh, 245 N.J. at 13.

V.

We are unpersuaded by defendant's claims, raised for the first time on

appeal, of prosecutorial misconduct during the State's summation. Specifically,

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defendant argues the State: (1) improperly responded to defendant's argument

that the State failed to test the shell casings for fingerprints or DNA by claiming

such testing would have been futile without facts or evidence to support the

claim; (2) shifted the burden of proof to defendant by asserting he controlled the

evidence after the shooting; and (3) disparaged his third-party guilt defense.

When, as here, the defendant does not raise a timely objection, we review

for plain error. R. 2:10-2. Generally, when the defendant fails to object to the

prosecutor's comments at trial, the allegedly "improper remarks . . . will not be

deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert.

denied, 534 U.S. 858 (2001).

"Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." State v. Williams, 471 N.J. Super. 34, 43 (App. Div. 2022) (quoting

State v. Frost, 158 N.J. 76, 82 (1999)). "A prosecutor must 'conscientiously and

ethically undertak[e] the difficult task of maintaining the precarious balance

between promoting justice and achieving a conviction,' ensuring that at all times

[their] 'remarks and actions [are] consistent with [their] duty to ensure that

justice is achieved.'" State v. Jackson, 211 N.J. 394, 408 (2012) (first and third

alterations in original) (quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).

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Prosecutors may "strike hard blows . . . [but not] foul ones." State v.

Wakefield, 190 N.J. 397, 436 (2007) (quotation omitted). "Generally, remarks

by a prosecutor, made in response to remarks by opposing counsel, are

harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div. 1993).

Defendant's claim that the State shifted the burden of proof by arguing he

controlled the evidence after the shooting lacks merit. It was not improper for

the prosecutor to highlight the State's contention that defendant was in control

of the Dodge Dart, and any evidence contained in the vehicle, after the shooting.

The State did not shift the burden of proof to defendant.

Nor was it improper for the State to respond to defendant's argument that

there may have been a third-party shooter who crawled through the bushes by

stating "[t]here[ was] . . . no one in the grassy knoll . . . you know, this is not a

conspiracy." The prosecutor was not "trivializing" or "disparaging" defendant's

defense. Rather, he was arguing that there was no evidence of a third-party

shooter.

We are persuaded, however, that it was inappropriate for the prosecutor

to imply to the jury fingerprint and DNA testing of the shell casings would have

been futile. Specifically, the prosecutor stated:

[Defense counsel] also made mention of fingerprints or
DNA analysis on the shell casing I showed you. Well

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think about how the gun works. It[ is] an explosion out
of a gun, it's hot. And to think where the shell casing
was found and the conditions that were out there with a
whole bunch of people outside, raining, what do you
think you[ are] going to find on a shell casing? This is
[ not] CSI.

"[R]eferences to matters extraneous to the evidence may constitute

prosecutorial misconduct." State v. Williams, 244 N.J. 592, 607 (2021) (quoting

Jackson, 211 N.J. at 408). Here, there was no evidence in the record, expert or

otherwise, to support the prosecutor's implication that the shell casings could

not have been tested for fingerprints or DNA evidence.

Nevertheless, a finding that a prosecutor has made an improper statement

"does not end a reviewing court's inquiry; in order to merit reversal, the

misconduct must have deprived the defendant of a fair trial." State v. Hawk,

327 N.J. Super. 276, 281 (App. Div. 2000). Such an error is not a basis for

reversal unless the conduct was so egregious that it deprived the defendant of a

fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S.

1129 (1996). The prosecutor's conduct must have been so egregious that it

"substantially prejudiced [the] defendant's fundamental right to have a jury

fairly evaluate the merits of his defense." Timmendequas, 161 N.J. at 575.

Overall, a court "must assess the prosecutor's comments in the context of the

entire trial record," State v. Nelson, 173 N.J. 417, 472 (2002), including whether

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the trial was lengthy, and the prosecutor's remarks were short or "errant." State

v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991).

Considering this brief statement in light of the lengthy trial and the

strength of the State's case, we are satisfied the prosecutor's comment did not

deprive defendant of a fair trial. Indeed, the comment did not undermine

defendant's argument that the State failed to offer any fingerprint or DNA

evidence from the shell casings to link defendant to the shooting. As discussed

previously, given that there was an abundance of incriminating evidence proving

defendant was the shooter, the prosecutor's comment did not "substantially

prejudice[] defendant's fundamental right to have a jury fairly evaluate the

merits of his defense." Timmendequas, 161 N.J. at 575.

VI.

Defendant argues, for the first time on appeal, the court failed to: (1)

instruct the jury on third-party guilt; (2) instruct the jury on how to assess Lee's

dying declaration identification; and (3) provide "tailored guidance on how to

evaluate dying declarations." These arguments are unpersuasive.

"An essential ingredient of a fair trial is that a jury receive adequate and

understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).

"Correct jury instructions are 'at the heart of the proper execution of the jury

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function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563,

571 (1994)). The trial judge must explain the law as it relates to the facts and

issues of the case. State v. Baum, 224 N.J. 147, 159 (2016).

"It is the independent duty of the court to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party." State v.

Reddish, 181 N.J. 553, 613 (2004). Indeed, every "request must concern legal

and factual issues that have been properly raised in the proceedings." State v.

Green, 86 N.J. 281, 290 (1981). Further, "[e]very request must state the correct

principles of applicable law in a manner that is tailored to the facts of the case

and is not misleading." Ibid. "The charge as a whole must be accurate." State

v. Singleton, 211 N.J. 157, 182 (2012).

"The proper standards of review of jury instructions are well-settled: if

the party contesting the instruction fails to object to it at trial, the standard on

appeal is one of plain error; if the party objects, the review is for harmless error."

State v. Cooper, 256 N.J. 593, 607 (2024) (quoting Willner v. Vertical Reality,

Inc., 235 N.J. 65, 80 (2018)). Demonstrating plain error "is a 'high

bar,' . . . requiring reversal only where the possibility of an injustice is 'real' and

'sufficient to raise a reasonable doubt as to whether the error led the jury to a

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result it otherwise might not have reached.'" State v. Alessi, 240 N.J. 501, 527

(2020) (first quoting State v. Santamaria, 236 N.J. 390, 404 (2019); and then

quoting State v. Macon, 57 N.J. 325, 336 (1971)).

"To determine whether an alleged error rises to the level of plain error, it

'must be evaluated in light of the overall strength of the State's case.'" State v.

Clark, 251 N.J. 266, 287 (2022) (quoting State v. Sanchez-Medina, 231 N.J. 452,

468 (2018)) (internal quotes omitted). "The 'high standard' used in plain error

analysis 'provides a strong incentive for counsel to interpose a timely objection,

enabling the trial court to forestall or correct a potential error.'" State v.

Burnham, 474 N.J. Super. 226, 230 (App. Div. 2022) (quoting Santamaria, 236

N.J. at 404).

Considered in light of the evidence produced at trial and the overall

strength of the State's case, defendant's claim that the failure to provide the jury

charge on third-party guilt, Model Jury Charges (Criminal), "Third Party Guilt

Jury Charge" (approved Mar. 9, 2015), constituted plain error is not convincing.

As discussed previously, there was overwhelming evidence that the shooter was

in the Dodge Dart and defendant was the shooter. There is no basis for us to

find a "reasonable doubt as to whether" the failure to provide the third-party

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guilt charge "led the jury to a result it otherwise might not have reached." Alessi,

240 N.J. at 527.

Defendant's claims that the court failed to instruct the jury on how to

assess Lee's dying declarations and identification of defendant lack sufficient

merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). As

defendant concedes, there is no applicable model jury charge and defendant did

not request such a charge. Moreover, it was not likely that Lee's identification

of defendant as the shooter was based on a mistake. Defendant was an intimate

partner of Lee's and the father of her unborn child, and she identified him as the

shooter at close range. There is no basis for us to conclude the failure to give

the model identification charge, Model Jury Charges (Criminal), "Identification:

Out-of-Court Identification Only" (effective Sept. 4, 2012), could have "led the

jury to a result it otherwise might not have reached." Alessi, 240 N.J. at 527.

VII.

We are unpersuaded by defendant's claim that he is entitled to a new trial

based on cumulative error. "A defendant is entitled to a fair trial but not a perfect

one." State v. Weaver, 219 N.J. 131, 155 (2014) (quoting Wakefield, 190 N.J.

at 537). However, "[w]hen legal errors cumulatively render a trial unfair, the

Constitution requires a new trial." Ibid.

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The State's case was strong, and to the extent there were errors made

during the lengthy trial, they did not deprive defendant of his right to a fair trial.

Based on our review of the trial record on the whole, we are satisfied there is no

basis to reverse defendant's conviction based on cumulative error.

To the extent we have not considered any of defendant's remaining

arguments, it is because they lack sufficient merit to warrant discussion in a

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

Affirmed.

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