NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

The grand jurors for Union County charged defendant Anthony W. Coles with second-degree robbery, N.J.S.A. 2C:15-1, and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). The jury found defendant not guilty of robbery and aggravated assault but guilty of lesser-included offenses — theft from the person, N.J.S.A. 2C:20-2a(2)(e) and N.J.S.A. 2C:20-3a, and simple assault, N.J.S.A. 2C:12-1a(1).

On the State's motion, the judge sentenced defendant to a discretionary extended term of imprisonment for theft, nine years with a four-and-one-half year period of discretionary parole ineligibility, N.J.S.A. 2C:44-3a; N.J.S.A. 2C:43-7a(4), b., and to a concurrent six-month term of imprisonment for simple assault, N.J.S.A. 2C:43-6a(4). The judge also imposed the mandatory assessments and monetary penalties.

Defendant appeals and presents four issues:

For the reasons that follow our statement of the pertinent facts, we conclude that defendant's second and third points warrant reversal of his conviction and a new trial.

At approximately 9:30 p.m. on April 6, 2010, John Morgan entered a chicken shop in Plainfield and ordered take-out. Morgan reached into his pocket and took out cash to pay, forgetting that he had between $500 and $600 with him. Morgan noticed defendant, a man he did not know and who was only an arm's length away from him, watching. Defendant left the shop, and Morgan did not focus on him anymore.

After Morgan got his food and left the shop, defendant confronted him outside. According to Morgan, defendant approached him and said, "[Y]ou know what time it is." Morgan understood defendant to mean that he was going to rob him. Accordingly, Morgan tried to slip by him, but defendant "caught" him with a punch. Morgan knew he was going to have to fight defendant, and he followed up with a "combination" that "dropped him." A man, whom Morgan had seen outside with defendant, came to defendant's aid and held Morgan's arms. With his assistance, defendant hit Morgan ten to twelve times and defendant reached into Morgan's pocket and took his money. Defendant fled and the accomplice was never identified.

Defendant testified at trial. By his account, he knew Morgan before the night in question because he lived near a friend of defendant's and because Morgan had sold him "weed" a couple of times. While in the chicken shop, he asked Morgan if he had and was willing to sell him marijuana — a potent type known as "Sour Diesel" that costs more than others. Defendant left the shop first and approached Morgan when he left. The transaction was made outside the chicken shop. The men fought afterward, when defendant opened and smelled his purchase and realized he had not gotten the marijuana he paid for.

According to defendant, Morgan hit him first and defendant did not take anything from him. The defense contended that if a recording made by the shop's surveillance camera were available, it would have supported his version of the events.

Morgan called 9-1-1 after the incident. When the police arrived, Morgan's eyes were swollen and his mouth was bleeding. According to Morgan, he had not seen defendant before these events.

In an effort to identify the perpetrator, the officer went to the chicken shop to see if its surveillance system had recorded anything useful. With the assistance of an employee, the officer viewed the recorded video. The recording, which did not have a sound track and displayed a time that was off real time by a couple of hours, showed Morgan and a man fitting Morgan's description of his assailant standing by the counter. Four or five other people were also shown on the recording.

Although Morgan identified defendant as his assailant, he did not know defendant's name. Two days after the incident, however, Morgan came to headquarters and an officer not involved in the investigation showed him six photographs, one at a time. Defendant's photograph was the second one Morgan was shown, and Morgan identified defendant as his assailant.

Defendant's picture was included in the array because an officer who saw the recording recognized him. In an effort to learn the identity of the man Morgan pointed out as his assailant, the officer who responded to the scene called for other officers more familiar with people in the neighborhood to look at the recording. Defendant's first cousin was among the officers who came to assist, and, upon seeing the recording, she identified defendant, whom she had known her whole life. Consequently, the officer who responded to Morgan's 9-1-1 call directed the employee who had assisted him with the video to keep the recording so that a detective could pick it up the next day.

The officer did not take the recording with him that night because, unlike detectives, officers assigned to patrol do not have equipment to make copies. For that reason, detectives, not patrol officers, are assigned to seize surveillance recordings. Because no detective had responded to the 9-1-1 call, the officer assumed no detective was available and did not call for one on the night of the incident.

A detective went to the chicken shop the next day, but he did not recover the pertinent section of the recording. He merely observed while the person in charge of the shop attempted to locate the section. Despite forwarding and reversing the recording for about forty-five minutes to an hour, they did not succeed. Although the police report given to the detective included a note that there was a discrepancy between the time of the crime and the time displayed on the recording, the detective had overlooked that information.

Before giving up his review of the recording, the detective called a sergeant assigned to a unit in the county prosecutor's office that dealt with recordings. Because no one was available to help, the detective left the chicken shop without the recording. The detective explained that the employee told him the system had a looping recording system, meaning that recorded images of preceding day's events are written over by images that are recorded the next day. In the detective's view, he "tried [his] best" and made "a good faith" effort to retrieve the pertinent recording.

At a pretrial hearing on defendant's motion to preclude any testimony about the recording, which the judge denied, and again at trial, the prosecutor elicited the detective's opinion about the value of the recording to the State. The detective explained that he wanted the recording because "[i]t would have helped this case. It would have been great for the State to have it."

When questioning the detective at trial, the prosecutor also elicited the detective's opinion on the quality of this investigation compared with the "thousands" his department investigated every year. In the detective's opinion, this case was "a good case," "a solid case." There were "three reputable officers" and "a victim" who "could identify" defendant and had viewed the surveillance recording, and the officers wrote "great reports" and "identified the defendant."

At trial, defense counsel objected to the detective's opinion testimony about the worth of the recording to the State as lacking a foundation. The judge overruled the objection on the grounds that the detective had already given the answer and that the detective's review of the police reports provided a foundation.

In closing to the jury, the prosecutor, referring to "An Inconvenient Truth," made the following argument:

The prosecutor, pointing to Morgan's testimony and his admission that he was awaiting sentencing on a guilty plea to distribution of marijuana, argued that Morgan's version, in contrast to defendant's — is "not a convenient fabrication." In concluding, the prosecutor advised, "the State contends that Mr. Coles is a liar, that Mr. Coles is the — is fabricating some things because he has to...." Defense counsel did not object to the closing.

After considering the evidence, the jury acquitted defendant of robbery and aggravated assault and found him guilty of lesser-included offenses — theft from the person and simple assault. In short, the jurors found that defendant took money from and assaulted Morgan but did not rob him.

I

This case was tried in August 2011. Boundaries of permissible advocacy on behalf of the State that were well-settled by the time of this trial were crossed.

A. Opinion testimony

In State v. McLean, 205 N.J. 438, 456 (2011), the Court made it clear that "[l]ay opinion testimony... can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and... will assist the jury in performing its function." The Court stressed that neither lay or expert opinions "may... intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out... [or] express a view on the ultimate question of guilt or innocence." Id. at 461; see id. at 462-63 (holding that the lay opinion rule may not be applied to permit admission of an impermissible expert opinion and noting that a question from a prosecutor referring to an officer's training and experience calls for an expert opinion). And, the Court iterated a longstanding principle — opinion testimony "on the credibility of parties or witnesses" is inadmissible because it invades the province of the jury. Id. at 453; see, e.g., State v. Vandeweaghe, 177 N.J. 229, 239 (2003) (internal quotation omitted) (noting that the question of credibility "has routinely been regarded as a decision reserved exclusively for the jury").

In short, McLean makes it clear that permissible factual testimony by police "includes no opinion, lay or expert, and does not convey information about what the officer `believed,' `thought' or `suspected,' but instead is an ordinary fact-based recitation by a witness with first-hand knowledge." 205 N.J. at 460.

In light of McLean, the court erred in overruling defense counsel's objection to the detective's opinion on the value of a recording to the State. First, the opinion was not based on the detective's first-hand knowledge, it was based on the description of what other officers observed when they viewed the recording. Second, the question whether the recording depicted facts favorable to the State was one for the jury to decide based on its assessment of the testimony of the witnesses who viewed the recording when it was available and testified to its contents at trial, when the recording was no longer available. N.J.R.E. 1004(a).

The detective's opinion on the strength of the State's case similarly invaded the province of the jury. In testifying that this case was "a good case" and "a solid case," the detective conveyed his opinion on the strength of the State's evidence tending to establish defendant's guilt. That was a question for the jury.

Finally, in explaining that he thought the case was good and solid because there were "three reputable officers" and "a victim" who "could identify" defendant, the detective conveyed an opinion about the credibility of the officers and Morgan. In short, he vouched for them.

More concerning, the detective's explanation of the basis for his favorable opinion of the veracity and accuracy of these witnesses suggested the detective's reliance on information not presented at trial — the officers' respective reputations and the validity of Morgan's view that defendant was, in fact, the perpetrator.

The foregoing opinion testimony was improperly admitted over defendant's objection. Given the conflicting versions of events inside and outside the chicken shop, we cannot conclude that the error was harmless.

B. Prosecutor's comments on defendant's attendance at trial

We turn to consider defendant's objections to the portion of the prosecutor's closing argument commenting on his presence at trial. Without question, reversal based on the State's improper closing is warranted only when the comments are sufficiently egregious to deprive the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). Moreover, when there was no objection at the time, a reviewing court generally concludes that the remarks were not prejudicial in the context of trial. State v. Josephs, 174 N.J. 44, 124 (2002).

The Supreme Court has made it clear that it is manifestly improper for a prosecutor to use a defendant's exercise of a constitutional right as a basis for arguing that the defendant has fabricated a defense at the heart of the case. See State v. Lyle, 73 N.J. 403, 410 (1977) (so reasoning in a case where the prosecutor, in violation of a rule previously announced by the Supreme Court, used the defendant's silence to attack his claim of self-defense, which was the "heart of the case"). Such an argument is "clearly capable of producing an unjust result" and is "plain error." Ibid.; R. 2:10-2. The defense in this case is best described as an effort to wholly discredit Morgan. The prosecutor's argument used defendant's presence at trial to cast his defense as a fabrication and him as a "liar" in clear violation of a rule established by the Supreme Court in State v. Daniels, 182 N.J. 80 (2004), and explained in State v. Feal, 194 N.J. 293 (2008).

See also State v. Wakefield, 190 N.J. 397, 466-67 (2007) (disapproving derogatory name-calling in the State's summation).

The State makes no effort to contend that the summation in this case did not violate Daniels' bright-line rule. There is no argument that can be made.

The prosecutor characterized defendant's testimony as a conveniently fabricated story and explained that the fabrication was convenient because "everyone in this courtroom, everyone heard the victim in this case, Mr. Morgan, admit that he has been arrested and he pled to a distribution of marijuana charge." Moreover, he referred to what "everyone" heard twice. True, the prosecutor carefully avoided saying that defendant was among those included in "everyone in this courtroom." But that was hardly a point that needed mention. Defendant was, as he had been throughout the trial, present. The prosecutor did not need to mention defendant by name to make that clear.

Facilitated by defendant's exercise of his right to be present at trial, the prosecutor went on to disparage the defense as a fabrication. He argued, "[H]e uses the fact that you know that the victim in this case has just pled to a drug offense with marijuana. He fabricates this story so that he gets out of a robbery." He further argued, "And he knows that if he can convince you that because the victim in this case pled to something recently he can use that to his advantage and try to get out of a second-degree robbery. He knows it."

As the State argues, prosecutors have considerable leeway and are also expected to argue a case forcefully within the boundaries of the law. But they are also expected to make vigorous and forceful arguments without crossing "the line that separates forceful from impermissible closing argument." State v. Rose, 112 N.J. 454, 517-18 (1988). It is wrong, however, for the State's representatives to view the "line" as a compilation of technicalities about word choice that can be evaded by artfully avoiding precise language disapproved in prior cases. That approach is inconsistent with the basic principles served by the rules developed in the decisional law — a defendant is entitled to a fair trial, and "`the primary duty of a prosecutor [in our legal system] is not to obtain convictions, but to see that justice is done.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting Ramseur, supra, 106 N.J. 123, 320 (1987)).

The argument in this case, using defendant's exercise of his right to attend his trial to disparage his only defense, was highly improper. The reliance on defendant's presence at trial, while not explicitly referencing him and referencing "everyone" in the courtroom instead, would not have been any clearer if the prosecutor named defendant.

Given the manifest impropriety, we have a significant doubt that defendant received a fair trial. The prosecutor began by focusing the jury on the convenience of defendant's fabrication brought about by his decision to attend his trial — a convenience that gave him the opportunity to concoct a fabricated story that he expected the jurors to believe. Moreover, he concluded by saying that the State contended defendant is a "liar."

C. Conclusion

Viewed collectively, the State's admission of improper opinion bolstering the credibility of its witnesses and the strength of its case and the prosecutor's violation of the rule established in Daniels, warrant a new trial in the interest of justice.

II

We turn to consider defendant's objections to the judge's rulings on the admission of testimony about the content of the recording made by the chicken shop's surveillance camera, which the State failed to preserve. He contends that his "theory of the case would have been corroborated by the videotape because, consistent with defendant's testimony, it would have shown defendant asking Mr. Morgan if he had marijuana in his possession to sell him." Having considered the arguments presented, we conclude that it has insufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2).

The judge determined that this testimony was admissible pursuant to N.J.R.E. 1004. That rule permits admission of "other evidence of the contents of a... photograph... unless the proponent lost or destroyed them in bad faith."

The judge made that determination following an evidentiary hearing on defendant's motion to preclude the testimony. The judge credited the testimony of the officer who requested and viewed the recording made by the chicken shop's surveillance camera, and then left it behind for a detective to collect in accordance with his department's allocation of labor. The judge also credited the testimony of the detective who went to the chicken shop the next day to secure the recording but was unable to locate it.

Based on the officers' testimony, the judge made the following findings. The patrol officer acted in accordance with departmental procedures by leaving the collection of the recording to a detective, and the patrol officer had no reason to be concerned that the shop's employee, who had cooperated and played the recording at the patrol officer's request, would ignore his direction to preserve the evidence. He further found that the detective's efforts to locate the salient portion of the recording, which included a search for the pertinent images and a request for assistance from detectives in the county prosecutor's office, were reasonably adequate. Accordingly, he found no evidence of bad faith.

Recognizing our obligation to accept the findings of a trial court that are supported by the record and based on that court's assessment of credibility, we see no basis for disturbing the judge's determination. See State v. Locurto, 157 N.J. 463, 471-72 (1999). We add only the following observations. Because this recording did not include an audio track, with respect to corroborating the "defense," the recording was at best "potentially useful." State v. Marshall, 123 N.J. 1, 109 (1991). Where lost evidence is only "potentially useful," a defendant must "show bad faith on the part of the police" to establish a due process violation based on the failure to preserve evidence. Ibid.

It is worth noting that this is not a case in which the defendant disputed his involvement in the incident or made any showing that the patrol officer, who had no suspect in mind, suggested that the victim identify defendant. The police had no role in the production of the recording or playing of the video made by the chicken shop's surveillance cameras, and defendant acknowledged his presence in the chicken shop and his altercation with Morgan. Cf. State v. Peterkin, 226 N.J.Super. 25, 45-46 (App. Div. 1988), certif. denied sub nom., State v. Montgomery, 114 N.J. 295 (1988).

III

Our reversal of defendant's convictions obviates the need to discuss his objections to the sentence imposed.

Reversed and remanded for further proceedings.