NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Tried before a jury on a seven-count indictment, defendant Phillipe Barthelus was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); third-degree conspiracy, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (count six); and second-degree possession of a weapon while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1a (count seven).

At sentencing, the judge merged the convictions for counts two and five into count one and sentenced defendant to forty-five years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release. On count three, the judge sentenced defendant to a consecutive fifteen-year term, subject to NERA, with a five-year period of parole supervision upon release. On count four, the judge sentenced defendant to four years in prison, concurrent to the sentences imposed on counts one, three, six, and seven. The judge imposed a five-year term on count six, with a two-and-one-half-year period of parole ineligibility. This sentence was concurrent to that imposed on counts one, three, and four, but consecutive to the sentence imposed on count seven. Finally, the judge sentenced defendant to a ten-year term on count seven, with a five-year period of parole ineligibility. This sentence was concurrent to that imposed on counts one, three, and four, but consecutive to the sentence imposed on count six. Thus, defendant's aggregate sentence was sixty years, subject to the eighty-five percent parole ineligibility provisions of NERA. Appropriate fines and penalties were also assessed. We affirm.

I.

The State developed the following proofs at trial. The incidents at issue occurred on the night of July 13, 2006 in and around the victim Jamillah Payne's apartment, located on the fourth floor of a building in Elizabeth, New Jersey, directly across the street from a park. The apartment was used as a "stash house" for drug dealers operating on the street and in the park.

Raquel Garcia lived in another apartment in the building. She was friends with co-defendant Wedpens Dorsainvil,1 who was a drug dealer in the area. Garcia frequently "held" drugs for Dorsainvil in her apartment and, in return, he would pay some of her bills. Garcia identified defendant as one of several men who sold drugs with Dorsainvil.

Garcia testified Dorsainvil came to see her on the morning of July 13, 2006 and told her he had been robbed at gunpoint earlier that morning by a group of men who took crack and $1000 from him. The men told Dorsainvil they "wanted him out of [Payne's] apartment," a location where he also kept drugs. Garcia stated Dorsainvil was "pissed" and wanted to retrieve a "baseball size piece" of crack he had hidden in Garcia's apartment. Dorsainvil told Garcia to "[k]eep your eyes open, keep your ears open. Something isn't right. [Payne] isn't acting right. It's almost like she's turning on the hand that is feeding her."

Willie Smith had an apartment on the third floor of the building and sold cocaine in the park. He was acquainted with both Payne and Dorsainvil. In the evening of July 13, 2006,

Payne called Smith and asked him to come up to her apartment. She sounded "disturbed a little bit." When he arrived at the apartment, Payne was sitting down in the living room and there were a number of men in the apartment with her, including

Dorsainvil. Smith stated that Payne "looked different.... Face tones didn't look right." Smith asked Dorsainvil "what was going on," and he replied, "Fuck that. Don't worry about it."

Smith testified that Dorsainvil then went into the kitchen and returned with a handgun. When he returned to the living room, he fired the gun into the floor. This prompted Smith to jump out of the window to escape, fracturing his pelvis and suffering a punctured lung in the fall. As Smith was lying on the sidewalk, he heard three more shots being fired and saw Payne hanging from the window. He saw Payne fall to the ground near where he was lying. At this point, he could not tell if she was alive. Another individual, later identified as Khalid Walker, then fell from the apartment window.

Walker, who admitted he was a member of the Bloods,2 testified he had been in the apartment with five or six other men. At one point, he went into the bathroom to take a telephone call. While he was in the bathroom, three or four shots came through the door; and one shot hit him in the leg. Someone kicked the door in and Walker saw one or two people in the doorway. Walker told the police that one of the men put a gun to his head and pulled the trigger, but the gun did not go off. However, Walker repudiated this statement at trial, explaining that the Bloods had a "code" that "snitches... die." Walker jumped out the bathroom window and landed in a pile of garbage. He lay there until the ambulance arrived and denied seeing Payne fall from the apartment.

Payne's friend, David Kernodle, was walking on the street outside the apartment at the time of the incident. He heard a "crashing sound" and then saw Smith "coming out" of the garbage area by the building, holding his side, and limping. He looked up and saw Payne "hanging out of the window." She appeared to be "[t]rying to get back in." Kernodle testified he saw defendant standing in the window from which Payne was hanging. He knew defendant from the area and testified that defendant had distinguishing scars on his arms, which he could see from the street. Kernodle testified defendant pushed Payne and she fell to the ground. In some of his earlier statements to the police, Kernodle did not say that he had seen defendant's face in the window. Instead, he saw a man's arms, which he recognized as defendant's because of his scars.

Kernodle stated Payne was still breathing as she lay in the street and he waited with her until the ambulance arrived. Payne later died. The medical examiner characterized Payne's death as a homicide, and testified the cause of death was from a single gunshot wound to her chest, rather than the blunt force injuries she received when she fell to the street.

Maria Martinez lived in an apartment on the third floor. She heard gunshots and went to close her window. As she did so, she saw a group of people coming down the fire escape. Defendant then opened the window, came inside, gave Martinez "a slight push, to the side," and ran out the front door of the apartment. Martinez saw at least three other people run down the fire escape.

Back in her apartment, Garcia was lying in bed when she heard gunshots. Dorsainvil then called her and said, "I'm coming up. I'm coming up right now. Open the door, open the door. Unlock the door." She let Dorsainvil in and saw that he had a "shirt with blood on it, a shirt balled up under his arm with blood on it, and... there were two guns in the shirt." Dorsainvil told Garcia, "I had to do it. I had to do it... I popped her." Dorsainvil further explained that Payne "knew too much" and, after he shot her, "they threw her out the window."

About twenty minutes later, the police knocked on Garcia's door. Dorsainvil hid in another room and Garcia told the police she had not seen anything. After the police left, Dorsainvil used Garcia's phone for a few hours. Garcia testified Dorsainvil made a number of calls to an individual named Mike Jones. Garcia heard Dorsainvil tell Jones to "go to some apartment to the mattress and get the money and the ID and bring it somewhere or give it to someone."

Garcia testified she was afraid Dorsainvil might kill her because "who am I? I'm just somebody that was holding his drugs. I'm not him. I'm not your girl. I'm not anyone." She worried that "if I make a wrong move or make him feel threatened he could kill me. He could kill my daughter."

Later in the evening, Dorsainvil told Garcia to put the guns and the bloody clothes in the bottom of a garbage bag. He then gave her some money, and told her to take the bag out and dispose of it. Garcia did so and purchased some food with the money before returning. Dorsainvil stayed in the apartment until about 5:00 a.m. the next morning.

Shawanda Williams testified she frequently rented cars for Dorsainvil and others in his group of friends, because she was the only one with a driver's license. Williams identified defendant as a member of this group. She testified the group used Payne's apartment as a place to "hold" drugs and money.

Williams testified that Dorsainvil called her during the night on July 13, 2006 and asked her to go to his house and get rid of anything "illegal." She did so. Defendant and Jones later came to the house. Although she told police she saw the two men rummaging through items, she testified at trial that she could not recall what they did. Williams removed Dorsainvil's Social Security card and "I.D." from the home and took them with her.

The next morning, Dorsainvil called Williams and told her to meet him at a car lot. Once there, he gave her $4500 to purchase a car in her name. After picking up defendant, defendant's girlfriend, and Jones, the group began driving toward Georgia.

On July 15, 2006, the car was pulled over by the South Carolina State Police. Because of questions raised about the identities of defendant and the other occupants, they were taken to police headquarters, detained, and later arrested. Several days later, Dorsainvil called Garcia and asked "was anyone talking? Anyone mentioning my name?" He thanked Garcia for "having him in my apartment" and "said that he would never hurt me and he hoped I believed him that he wouldn't hurt me."

Dorsainvil also promised to send her $1000.

On July 22, 2006, Union County Detective Jorge Jiminez and Elizabeth Detective Tommy DeBeau interviewed defendant in South Carolina. Defendant denied he was in Elizabeth at the time of the shooting and claimed he had been at a family reunion in Georgia. He explained that he then drove five hours to South Carolina because he wanted to go to a buffet and the Georgia buffets were too expensive. Later, defendant stated he had been in the park playing dice when he heard shots and saw people jump from the apartment window. In an October 12, 2009 letter to the trial judge, however, defendant admitted to selling drugs in the apartment on the night of the murder, but claimed he "ran[] for his life" when the shots were fired. Defendant also sent a copy of this letter to the Union County Prosecutor's Office.

Several weeks after the murder, Lavar Davis came to Garcia's apartment. He told her he had been in Payne's apartment on the night of the murder. Davis explained that Payne had "turned on them" by becoming "Blood on another set" and had "betrayed them" by letting the men who had robbed Dorsainvil into the apartment. There was a confrontation between the men and Dorsainvil and his friends. Someone told Dorsainvil, "You want to die or are you going to get the F out of this apartment and get your shit and go." Payne began to head for the door, but Davis grabbed her hair "and told her she is not going nowhere." Davis told Garcia that Payne was shot and "pushed out the window, and that a fat MF was pushed out the window and that some other punk b-i-t-c-h jumped out the window on his own, just being scared." Davis warned Garcia that "whoever talks" to the police "will get dealt with."

In June 2008, Kernodle spoke to defendant, who told him "he wasn't too happy about me testifying." Defendant told Kernodle "something could happen to me" and that "he told me I could have been killed."

Defendant did not call any witnesses or testify at trial. However, at defense counsel's request, he displayed his arms to the jury.

II.

Against this record, defendant, through assigned counsel, raises the following arguments:

Defendant filed a pro se supplemental brief raising the following arguments:

After reviewing the record in light of prevailing legal standards, we reject these arguments and affirm.

Defendant first argues the trial judge did not properly charge the jury on the use of the prior inconsistent statements made by the State's witnesses at trial and earlier to the police. Defendant points to a short excerpt from the charge, where the judge stated:

Defendant did not object to this portion of the charge at trial. However, he now argues that when the judge told the jurors that a witness's unreliable prior inconsistent statement could not be considered "for any purpose," it prevented the jurors from using the unreliable statement to find that the witness was not credible. Defendant also asserts for the first time that the judge should have given a "false in one- false in all" charge.

We disagree.

It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).

Because defendant did not object to the judge's instruction, we review the claimed error under the plain error standard. R. 2:10-2.

A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J.Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.

Reviewed under that standard, we discern no error, let alone plain error. Defendant has pointed to only a short excerpt from the judge's charge on witness credibility. Moments before giving this part of the charge, however, the judge carefully instructed the jury that it could consider a witness's prior inconsistent statements in assessing that witness's credibility. The judge stated:

The judge then specifically told the jurors that "[e]vidence, including a witness's statement or testimony prior to trial, showing that at a prior time the witness has said something which is inconsistent with the witness's testimony at trial, may be considered by you for the purpose of judging the witness's credibility." Thus, contrary to defendant's contention, the jury was correctly instructed that a witness's prior inconsistent statement could be used to assess that witness's credibility.

Defendant's argument that the judge did not provide the jury with a "false in one- false in all" charge also lacks merit. That charge "is not a mandatory rule of evidence, but rather a presumable inference that a jury [or judge sitting without a jury] may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." State v. Fleckenstein, 60 N.J.Super. 399, 408 (App. Div.) (alteration in original) (quoting State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937)), certif. denied, 33 N.J. 109 (1960). The charge is discretionary. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L. Ed. 2d 374 (1961).

Here, the judge told the jurors that "as judges of the facts, you weigh the testimony of each witness and then determine the weight to give to it. Through that process you may accept all of it, a portion of it, or none of a particular witness's testimony." There was clearly no need for any further instruction on this topic.

Defendant next argues that Kernodle should not have been permitted to testify on re-direct examination about a conversation he had with his niece about defendant's involvement in the murder. He asserts this testimony was hearsay and violated his Sixth Amendment right of confrontation. We disagree.

Kernodle testified on direct examination that he saw defendant's face in the window from which Payne fell. On cross-examination, defense counsel attempted to show that Kernodle did not identify defendant as being involved in the murder until after defendant threatened him in June 2008 and after he was facing sentencing on an unrelated weapons charge.

On re-direct, the prosecutor attempted to rebut defense counsel's assertion that Kernodle was attempting "to punish" defendant for threatening him or to "curry favor with the prosecutor on his gun charge." The prosecutor asked Kernodle whether he had provided any information about defendant to the police prior to June 2008. Kernodle testified that, in May 2007, he told the police "that somebody told me that [defendant] was the shooter."

The prosecutor then asked who had provided him with this information. Defense counsel objected on the ground of hearsay. The judge overruled the objection and instructed the jury, "It's not admitted for the truth of the matter and you are not to consider it for the truth of the matter, but just what he told the police and what impact that has in relation to what the cross-examination was." Kernodle then answered that his niece, who was also the mother of defendant's child, told him defendant shot Payne. The judge again instructed the jury that

A trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We perceive no abuse of discretion in the manner in which the judge handled this testimony.

"Hearsay" is defined in N.J.R.E. 801(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "[I]f evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002) (citing State v. Chavies, 345 N.J.Super. 254, 274 (App. Div. 2001)). It is well-established that the Sixth Amendment "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177 197 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 85 L. Ed. 2d 425, 431 (1985)); State v. Buda, 195 N.J. 278, 301 (2008), cert. denied, 557 U.S. 934, 129 S.Ct. 2858, 174 L. Ed. 2d 601 (2009).

Kernodle's statement about his conversation with his niece was not hearsay. It was offered, not for its truth, but to rebut the inference raised by defense counsel that Kernodle recently manufactured his testimony about seeing defendant's face in the window in an attempt to get back at defendant or to obtain a better plea deal. Because Kernodle's statement was not hearsay, defendant's Sixth Amendment right to confront the witnesses against him was not violated. In addition, the judge twice instructed the jury on the proper use of the testimony. Under these circumstances, we perceive no error in the judge's decision to permit this testimony.

Defendant also contends the prosecutor made improper comments about his character, relied on matters outside the record, and "misused" Kernodle's testimony during his summation. Again, we disagree.

Prosecutors are "expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J.Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). To warrant a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed. 2d 89 (2001). Here, defendant did not object to any of the three comments. Therefore, the plain error standard of review is again applicable. R. 2:10-2.

Defendant asserts the prosecutor disparaged his character by referring to derogatory comments defendant made about Payne to the police after he was picked up in South Carolina. While the prosecutor's remarks quoting or paraphrasing defendant's comments were crude, they were based solely upon defendant's taped statement to the police, which was introduced in evidence. The absence of a contemporaneous objection to the remarks further suggests that "defense counsel did not believe the remarks were prejudicial at the time they were made," and the failure to object deprived the trial judge of the opportunity to take any appropriate curative action. State v. Timmendequas, supra, 161 N.J. at 576.

It was also not plain error for the prosecutor to comment that Walker, Williams, and Garcia lived by "different rules" than the jurors. Defendant argues there was no evidence in the record to support these comments. However, Walker testified that "snitches die" and Garcia testified she was afraid of being killed because of her involvement in this matter. Williams admitted she rented cars for drug dealers because she was the only one who had a driver's license. Thus, the prosecutor's remarks represented fair comment, based upon reasonable inferences, drawn from the testimony presented at trial. Id. at 587-88.

Finally, defendant argues the prosecutor improperly highlighted Kernodle's testimony about the information his niece provided about defendant's involvement in the murder. However, the prosecutor's comments were in direct response to defense counsel's argument that Kernodle enhanced his identification of defendant in order to get a better plea offer. Moreover, defendant did not object to the comment when made. The comment falls far short of the standard of "conduct... so egregious that it deprives the defendant of a fair trial" necessary to establish plain error. State v. Loftin, 146 N.J. 295, 386 (1996) (internal citation and quotation marks omitted).

The arguments raised in defendant's supplemental belief largely parrot the points raised by his appellate counsel. Defendant's supplemental contentions are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.