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-5556-17T4






                   Argued October 28, 2020 – Decided December 18, 2020

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Union County, Indictment No. 15-01-

                   Margaret McLane, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Margaret McLane, of
                   counsel and on the briefs).

                   Meredith L. Balo, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Lyndsay V. Ruotolo, Acting Union
                   County Prosecutor, attorney; Meredith L. Balo, of
                   counsel and on the brief).

       Defendant Gregory J. Herbert appeals an October 27, 2016 order that

granted the State's motion to admit his custodial statement to police in

evidence at trial, and an October 3, 2017 judgment of conviction and sentence

for conspiracy to commit first-degree robbery, third-degree possession of a

weapon for an unlawful purpose, and the lesser-included offenses of fourth-

degree aggravated assault by pointing a firearm and disorderly persons theft.

We reverse defendant's convictions and remand for a pretrial hearing and


       We discern the following facts from the evidence presented at the joint

trial of Herbert and co-defendant Kadeem I. Charles. 1 Herbert, Charles, and

Michael Onyeagoro met at Charles's house for a party on December 19, 2013.

Onyeagoro testified at trial that the trio left Charles's shortly after midnight to

"discuss[] locations or persons that [they could] rob" and eventually decided to

rob a gas station. 2

   In our separate opinion in the companion appeal filed by Charles, we
reversed Charles's convictions and remanded for a N.J.R.E. 104 hearing and
retrial. State v. Charles, No. A-1136-17 (App. Div. Dec. 18, 2020).
   Onyeagoro pled guilty to second-degree conspiracy and turned State's
       The three went forward with the plan.      At approximately 2:30 a.m.,

Onyeagoro distracted the gas station attendant by driving into the gas station

and asking for gas. As the attendant pumped gas, Charles pointed a BB gun at

him while Herbert stole computer equipment. The trio fled the scene.

       Hillside Police Department received a "holdup alarm" from the BP gas

station on Route 22 at 2:30 a.m. Police found Onyeagoro waiting for Herbert

and Charles in his car nearby, which matched the description given by the gas

station attendant. They observed a knife under the seat of the car and arrested

Onyeagoro for possession of a weapon.

       Information obtained from Onyeagoro led to the arrests of Charles in

July 2014 and Herbert in August 2014. Police searched Charles's home in

Irvington and seized two BB guns, a ski mask, a knife, clothing, and gloves.

       Following his arrest in Vermont and return to New Jersey, Herbert was

interviewed by Hillside Police Detective Sergeant Cosimo Tripoli after Herbert

was read his Miranda3 rights and waived those rights. Herbert denied being in

Hillside at the time of the crimes or ever being in Onyeagoro's car.

       After an already lengthy interrogation, police asked defendant: "You

want to think about some stuff in mind for a few minutes? We'll step out

    Miranda v. Arizona, 

384 U.S. 436

maybe you just want to clear your head and think."          To which defendant


             No, I already cleared my head already. If you got the,
             you say you have the evidence, you say you have all
             the answers, then I guess only thing left for you to do I
             guess is go to court and we'll figure it out from there.
             I guess, I get a lawyer and then figure it out from

At this point, police did not stop the interview, ask for Herbert to clarify his

statement, or leave the room. Similarly, Herbert stated, "[y]ou want me to say

certain things and[] I wish I had the answers for you." Once again, police did

not stop the interview or seek to clarify Herbert's statement. Herbert repeated

that he wanted "to leave it up to the court" several more times during the


      In addition, police asked Herbert: "Okay. So before we end this today,

anything else you want to say?"        Herbert responded:     "No, I don't have


      In January 2015, a Union County grand jury returned an indictment

charging Herbert and Charles with the following offenses:                first-degree

robbery, N.J.S.A. 2C:15-1 (count one); first-degree conspiracy to commit

robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1 (count two); second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three);

and third-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a)(1) (count four).

      The State moved to admit Herbert's custodial statement at trial. The trial

court conducted a Miranda hearing on October 25, 2016.

      The court found Herbert to be "calm and cooperative" and "appeared to

be educated, articulate, and intelligent." During the interview, Herbert was

questioned for over three hours. The court noted that "while persistent, the

officers did not raise their voice, threaten Mr. Herbert, or try to trick him."

The court described Herbert's demeanor as "extremely comfortable" and

"almost was poised in the interview."

      Based on the "totality of the circumstances, . . . the [c]ourt [found] that

Herbert knowingly, voluntarily, and intelligently waived his rights and agreed

to speak to the detectives." It further found Herbert never exercised any of his

constitutional rights. The court concluded

            that a reasonable and logical interpretation of
            Herbert's comment [that], "[i]f you . . . say you have
            the evidence, you say you have all the answers, then I
            guess only thing left for you to do I guess is to go to
            court and we'll figure it out from there. I guess I get a
            lawyer and then figure it out from there," was simply
            what Herbert was expecting to happen in the future.

      The court similarly determined that when Herbert described getting a

lawyer and going to court on several occasions, the reasonable inference is that

he intended to describe his expectations for the future, not a present invocation

of the right to counsel.     In addition, the court determined that Herbert's

statement, "I don't have anything else," is reasonably interpreted as him saying

he did not have anything more to say about the robbery specifically, not that he

wanted to terminate the interrogation altogether.      The court explained that

Herbert could instead have stated, "I'm finished. I want the interview to end."

However, Herbert did not do so and thus did not actually intend for the

interview to end. As evidence of his intention to continue the interview, the

court noted that Herbert proceeded to answer all the of the detectives'

questions without objection.

      The court stated it was "convinced beyond a reasonable doubt that

[Herbert] knowingly, voluntarily, and intelligently waived his rights under

[Miranda] . . . and voluntarily answered all of the detectives' questions without

ever invoking any of his constitutional rights." Accordingly, the court granted

the State's motion to introduce portions of Herbert's statement at trial.

      The State proffered Adam Durando as an expert in cellular telephone

records, cellular mapping programs, and cell-site analysis. The court conducted a

N.J.R.E. 104 hearing on the admissibility of Durando's testimony. During the

hearing, Durando testified that, as part of his job, he makes sure that all Sprint

customers have cellular service when they attempt make a call. This requires a

customer's phone to remain in constant contact with a cell tower, which reveals the

general location of the customer's phone. Durando testified that there may be

occasion when a cell phone does not connect to the nearest cell-site because a

different tower might provide a better signal to the customer due to nearby

buildings, terrain, and local topology. Durando explained, however, that Sprint

takes into consideration the local terrain, topology of a tower location, and cell-site

traffic when designing tower sites.

      Durando further testified that he reviewed the cell phone numbers registered

to Herbert and Charles and used repoll numbers to identify the relevant cell tower

sites to map the calls at issue in this case. He explained that he reviewed the cell

phone numbers with Map Info, a commercially accepted mapping tool used

throughout the industry that graphically represents where Sprint's sites are located

relative to the streets. Durando testified that although he could not determine the

exact location of a cell phone during a call, he could confirm that a call was placed

somewhere within the site's coverage area, which is usually around seven miles.

Durando also testified that a "drive test" is sometimes performed to cure a

customer's complaint about poor service, but he was unable to conduct a drive test

for this case because he did not have all the information necessary.

      The court granted the State's motion to permit Durando to testify as an

expert, determining that Durando was highly qualified and "ha[d] sufficient

expertise" in the fields of cellular telephone records, cellular mapping program,

and cell-site analysis. It noted that Durando had twenty-five years of experience

and received forty hours of training annually.

      The court found the State met its burden of proving that Durando's proffered

testimony was "generally accepted among those in the profession." It pointed to

case law specifically addressing the reliability and general acceptance of cell-site

analysis to determine the general location of a cell phone. The court noted that the

State sought to introduce evidence of defendants' general location based on the use

of specific cell towers and sectors rather than to pinpoint the exact location of the

cell phone user. It thus concluded that "[t]estimony concerning the location of cell

towers, the sectors used for each call, and the general location" of cell phones

when connected to each tower "[a]re the product of reliable principles and

methods." Lastly, the court concluded that "[a]ny questions concerning the

mapping data and the reliability of testimony" affect "the weight of his testimony,"

not its admissibility.

      The trial commenced on June 6, 2017. We briefly recount the pertinent

testimony, objections, and evidentiary rulings made by the trial court. We also

discuss the accomplice liability instruction given by the court.

      The State called Onyeagoro to testify about the content and background

of text messages between Onyeagoro, Charles, and Herbert on the night of the

robbery.   The first text message was from Onyeagoro to Charles; it read:

"Text me this n--ga Herbert['s] number[.]" Charles replied, "Ight[.]"

      Onyeagoro testified that he texted Herbert to "[contact him] back [about]

that ish we'd talked about its still in the office[.]" He explained that when he

referred to the office, he meant "the safe that is in the office at [his] job."

Onyeagoro explained that another text message to Herbert, which read: "All

right. Nothing crazy. A quick grab and go[,]" meant "a quick in and out"

robbery of the office where Onyeagoro worked. He testified that the text

message referred to a planned robbery.

      The State introduced text messages between Onyeagoro and Herbert's

cell phones.   Both defense counsel objected to the admission of the text

messages, claiming lack of authentication based on the impossibility of

knowing whether Herbert personally sent the messages even though they were

sent to or from his cell phone. The court overruled the objection, finding that

Herbert's argument went to the weight of the evidence, not its admissibility.

Defense counsel did not, however, object to the contents of the messages due

to their reference to prior bad acts and resulting prejudicial impact.

      Soon thereafter, Onyeagoro testified that he, Herbert, and Charles

attended a party that night, and after the party, he drove the trio around and

were "not particularly doing anything. [They] were just discussing locations

or persons that [they could] rob." Charles suggested they rob the BP station on

Route 22. Onyeagoro testified that at first he refused "because it was getting

late but [Charles and Herbert] insisted because the profit of that previous night

into the morning was low." This was appeared to be a reference to another

robbery the three had committed.

      Both defense attorneys objected and moved for a mistrial because

Onyeagoro was implicating both defendants in other crimes. The court denied

the motion for a mistrial but sustained the objection since the testimony

implied that defendants committed other, uncharged crimes.          It found that

although Onyeagoro's statement began to implicate defendants of a different

crime, his testimony could be interpreted in other ways and thus did not

warrant a mistrial. The court struck Onyeagoro's statement and directed the

jury to "disregard it and not to consider it as evidence in this case" but did not

provide further instruction to avoid shedding more light on the substance of

the testimony. Defense counsel agreed.

      According to Onyeagoro, during the robbery of the gas station, Charles

had a gun and Herbert had a knife. Onyeagoro pulled up to a pump and asked

for $20 worth of gas. Charles put the attendant in a choke hold and placed the

gun at his head. Charles or Herbert shouted, "give us the f--king money,

where is the f--king money at." Onyeagoro identified Charles and Herbert as

the men in the surveillance video. Herbert told Onyeagoro to leave; he pulled

away from the gas station without his gas cap. Onyeagoro was stopped by

police shortly thereafter.

      During cross-examination, defendants attacked Onyeagoro's credibility

by demonstrating that in several instances, his testimony on direct materially

varied from what he told the police during the investigation.      Defendants

attempted to show that Onyeagoro implicated Charles and Herbert in order to

obtain a favorable plea agreement that reduced his exposure from first -degree

to second-degree robbery and resulted in a downgraded three-year prison term.

      The State also presented Durando's expert cell-site analysis testimony.

Durando testified that he used the defendants' phone numbers and cell-site data

to map out the location of the defendants' phones at the time of the robbery.

Further, Durando testified that defendants' phones were within seven miles of

the cell tower they connected to.

      The State also presented New Jersey State Police Detective Sergeant

First Class Brett Bloom, who is assigned to the Firearms Investigation Unit as

a firearms expert. The gun in evidence was a BB gun pistol. He testified

without objection that neither Chares nor Herbert had ever been issued a

permit to carry a handgun, a permit to purchase a handgun, a firearm

identification card, or a permit for an assault weapon in the State of New

Jersey.   He further testified that that under New Jersey law, a BB gun is

considered a firearm and is subject to the same permitting procedures.

      At the close of the State's case, defendants moved for judgment of

acquittal on the unlawful possession of a firearm count based on the lack of

evidence that the BB gun was operable. The court granted the motion, noting

"the State has not called an expert in regard to operability." It explained t hat

N.J.S.A. 2C:39-5(b) requires the State to prove that the firearm at issue was

"originally designed or manufactured to fire or eject any solid projectile[ or]

ball[.]" Because the State did not call an expert regarding operability, the

court found the "jury would have to speculate" about whether the BB gun "was

originally designed or manufactured to eject" a projectile ball.

       On the other hand, the court held that a BB gun is a firearm under

N.J.S.A. 2C:39-4(a) because operability is not an element of possession of a

firearm for an unlawful purpose. Neither defense counsel argued for judgment

of acquittal of the aggravated assault by pointing a firearm charge.

       During its summation, the State discussed Durando's expert testimony.

The State argued that, according to Durando's testimony, defendants were in

the general area of the crime and that they were together.

       The court instructed the jury on accomplice liability with respect to the

robbery count and lesser-included theft charge but not as to the aggravated

assault by pointing a firearm charge. Neither defense counsel objected.

       On June 29, 2017, the jury acquitted Herbert and Charles of robbery but

found both guilty of the lesser-included offenses of fourth-degree aggravated

assault by pointing a firearm and disorderly persons theft; second-degree

conspiracy to commit robbery; and second-degree possession of a weapon for

an unlawful purpose.

       At sentencing, the State argued for consecutive terms. Applying the

Yarbough4 factors, the court declined to impose any consecutive terms.

    State v. Yarbough, 

100 N.J. 627

      Defense counsel argued that Herbert should be sentenced in the third-

degree range on the two second-degree crimes, contending the mitigating

factors substantially outweighed the limited aggravating factors.     Counsel

noted that Onyeagoro was sentenced to a downgraded three-year term on the

second-degree conspiracy count that he pleaded guilty to.

      The court found aggravating factor nine (need for deterrence), N.J.S.A.

2C:44-1(a)(9), outweighed mitigating factor seven ("no history of prior

delinquency or criminal activity"), N.J.S.A. 2C:44-1(b)(7). The court rejected

mitigating factor six (defendant has or will compensate the victim), N.J.S.A.

2C:44-1(b)(6), because the victim returned to the country from which he

immigrated from and has not been compensated. It rejected mitigating factor

eight (defendant's conduct was the result of circumstances unlikely to recur),

N.J.S.A. 2C:44-1(b)(8), finding Herbert was equally culpable of the crimes

despite defendant's assertion that Onyeagoro was the true mastermind. The

court rejected mitigating factor nine (the character and attitude of the

defendant indicate he is unlikely to reoffend), N.J.S.A. 2C:44-1(b)(9), because

there was insufficient evidence to make that finding.

      Following merger of the aggravated assault by pointing a firearm count

into count four, Herbert was sentenced to an aggregate seven-year term. More

specifically, Herbert received a six-month term for the disorderly persons

theft; a seven-year term, subject to the mandatory periods of parole

ineligibility and parole supervision under the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, for the conspiracy to commit robbery; and a seven-year

term, subject to a forty-two-month period of parole ineligibility pursuant to the

Graves Act, N.J.S.A. 2C:43-6(c), for the possession of a weapon for an

unlawful purpose. All terms run concurrently. This appeal followed.

      Herbert raises the following points for our consideration.

            POINT I


            POINT II


            POINT III


                  A. Introduction.

                  B. The Expert Testimony And Maps Were
                  Inadmissible Because They Were Irrelevant But
                  Highly Prejudicial.

                  C. The State's Use Of The Expert Testimony
                  And Maps Was Inappropriate And Prejudicial.

            POINT IV

            ITS REVERSAL.

            POINT V

            DEFENDANT'S        SENTENCE       IS   MANIFESTLY

            POINT VI

            FIREARM. (Not Raised Below).


      Herbert contends that the trial court erred in admitting his statement to

police because he repeatedly invoked his right to remain silent and to counsel,

but police continued interrogating him. He argues that although he denied any

involvement in the gas station robbery, "portions of his statement undermined

his credibility and thus gave the jury an impermissible reason to credit

Onyeagoro's trial testimony." 5 We disagree.

      We are guided by well-established legal principles. When reviewing "a

trial court's admission of police-obtained statements," we "engage in a

'searching and critical' review of the record to ensure protection of a

defendant's constitutional rights." State v. Maltese, 

222 N.J. 525

, 543 (2015)

(quoting State v. Hreha, 

217 N.J. 368

, 381-82 (2014)).              "We do not

independently assess evidence as if we are the trial court."

Ibid. (citing Hreha, 217

N.J. at 382). Rather, we "typically defer to the trial court's credibility and

factual findings." 

Hreha, 217 N.J. at 382

. Such "findings should be disturbed

only if they are so clearly mistaken 'that the interests of justice demand

intervention and correction.'"    State v. Tillery, 

238 N.J. 293

, 314 (2019)

(quoting State v. A.M., 

237 N.J. 384

, 395 (2019)). "However, we owe no

deference to conclusions of law made by lower courts in suppression

decisions, which we instead review de novo." State v. Boone, 

232 N.J. 417


426 (2017) (citing State v. Watts, 

223 N.J. 503

, 516 (2015)).

   Defendant argues that a statement taken from the interview, in which he
denied that a phone number was his, was used at trial to undermine his
      Evidence obtained in violation of Miranda must be suppressed at trial.

State v. Hartley, 

103 N.J. 252

, 262 (1986). Herbert does not argue that the

Miranda warnings he received were somehow defective. Nor does he argue

that he did not initially waive those rights "voluntarily, knowingly and


Miranda, 384 U.S. at 444


Hartley, 103 N.J. at 261

. Instead, he

argues he exercised his right to remain silent.

      Whether a defendant invoked the right to remain silent is determined

under the totality of the circumstances.          

Maltese, 222 N.J. at 545

.     An

invocation of the right to remain silent must be "scrupulously honored."

Hartley, 103 N.J. at 255-56

(citing Michigan v. Mosley, 

423 U.S. 96


If the invocation is ambiguous, the officer may only ask clarifying questions

about whether he or she meant to invoke the right to remain silent. State v.


120 N.J. 263

, 283 (1990). An ambiguous invocation of the right to

remain silent must be clarified before authorities can proceed to question a

suspect. State v. S.S., 

229 N.J. 360

, 384, 386 (2017).

      Where the totality of the circumstances demonstrates that the defendant

exercised his right to remain silent or to counsel, whether ambiguously or

unambiguously, the Hartley bright-line rule requires Miranda warnings to be


Hartley, 103 N.J. at 267


      Applying these principles, we discern no error.         The record fully

supports the court's findings that Herbert "knowingly, voluntarily, and

intelligently waived his rights and agreed to speak to the detectives" and did

not subsequently exercise his right to remain silent or to speak to an attorney

or to have counsel present.      The record further supports the trial court's

findings that Herbert's comments about getting a lawyer and going to court

related to "what Herbert was expecting to happen in the future," "not an

invocation of the right to an attorney."

      The record likewise supports the trial court's finding that a reasonable

interpretation of Herbert's comment, "No.      I don't have anything else[,]"

merely expressed that he did not have anything more to say about the robbery,

not that he wanted to terminate the interview entirely. The record further

supports its finding that Herbert did not say anything else that "could [be]

reasonably interpret[ed] as wanting to terminate the interview."

      The court found that Herbert, who "remained calm, cool, and collected

throughout the interview" and appeared to be "educated, articulate, and

intelligent," could easily have said that he wanted the interview to end but did

not do so. He also never told the detectives that he wanted to speak to an

attorney or to have one present.      Instead, "throughout the interview . . .

defendant . . . answered all of the detectives' questions, disagreed with their

accusation, and more than held his own."        Moreover, "[a]t no time did he

appear reluctant to answer their questions or to be uncomfortable. In fact,

Herbert appeared . . . to be quite relaxed and at eas[e], comfortable and

confident during the entire interview and was rather talkative at times. "

      Considering the totality of the circumstances, the trial court properly

determined that Herbert's statement was admissible in evidence. Moreover,

the ultimate use of Herbert's denial that a certain phone number was his to

undermine his credibility, "was harmless [error] beyond a reasonable doubt."

Tillery, 238 N.J. at 319

.    This evidence did "little to advance the State's

otherwise comprehensive case against defendant."

Id. at 322. II.

      We next address Herbert's argument that the trial court erred by

admitting Onyeagoro's testimony and text messages from December 19 about

other uncharged robberies without a limiting instruction. We agree.

      Generally, "evidence of other crimes, wrongs, or acts is not admissible

to prove a person's disposition in order to show that on a particular occasion

the person acted in conformity with such disposition." N.J.R.E. 404(b)(1).

Accordingly, "[e]vidence regarding other specific acts may not be used to

prove the commission of a particular act on a particular occasion, unless they

establish habit or routine practice under N.J.R.E. 406." Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, cmt. 1(b) on N.J.R.E. 404 (2020).

      Evidence of other crimes and bad acts "may be admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident when such matters are

relevant to a material issue in dispute." N.J.R.E. 404(b)(2). Thus, evidence of

a prior bad act may be admissible to establish a "common scheme or plan, a

signature crime, motive, and most frequently, to impeach the accused who

takes the witness stand, but only through a conviction." State v. Weeks, 

107 N.J. 396

, 406-07 (1987).

      Rule 404(b) is based on "the inordinate prejudice to the defendant

inherent in other-crimes evidence." State v. Hernandez, 

334 N.J. Super. 264


269 (App. Div. 2000), aff'd as mod., 

170 N.J. 106

(2001). "The underlying

danger of admitting other-crime evidence is that the jury may convict the

defendant because he is 'a "bad person" in general.'" State v. Cofield, 

127 N.J. 328

, 336 (1992) (quoting State v. Gibbons, 

105 N.J. 67

, 77 (1987)).

      Even where other bad acts are used for an admissible purpose, trial

courts should "take pains to instruct juries carefully and comprehensively, with

ample reference to the specific evidence and issues in a case, on the limited

relevance of other [bad act] evidence." State v. Stevens, 

115 N.J. 289

, 309

(1989). The trial court must provide a limiting instruction to the jury "both

when the evidence is first presented and again as part of the final jury charge."

State v. Garrison, 

228 N.J. 182

, 200 (2017) (quoting State v. Rose, 

206 N.J. 141

, 161 (2011)).

      Before a court determines whether a prior bad act is admissible for a

particular purpose, it should determine first whether the evidence relates to a

prior bad act or whether it is intrinsic to the charged offense.        State v.


439 N.J. Super. 311

, 325 (App. Div. 2015) (quoting 

Rose, 206 N.J. at 179

). Evidence that is intrinsic to a crime, while needing to satisfy the

rules relating to relevancy and undue prejudice, "is exempt from the strictures

of Rule 404(b)." 

Rose, 206 N.J. at 177-78


      Intrinsic evidence is limited to two categories:        (1) evidence that

"directly proves" the charged offense; and (2) evidence that, when "performed

contemporaneously with the charged crime," facilitates "the commission of the

charged crime." 

Brockington, 439 N.J. Super. at 327-28


Rose, 2016 N.J. at 180

). As to the second category of intrinsic evidence, the temporal

proximity between the uncharged bad act and the indicted crime must be

contemporaneous, not simply "close in time[,]" and the link between the same

must be "meaningful." 

Brockington, 439 N.J. Super. at 338


      Because Herbert did not raise issue to the testimony or use of the text

messages under Rule 404(b), he must show that the court's admission of the

evidence was "plain error clearly capable of producing an unjust result." State

v. Bunch, 

180 N.J. 534

, 541 (2004) (quoting State v. Afanador, 

151 N.J. 41

, 54

(1997)); R. 2:10-2.

      Herbert asserts that the court's admission of the text messages that

implicated defendant in a "quick grab and go" and Onyeagoro's explanation

constituted plain error as a prior uncharged crime in violation of N.J.R.E.

404(b). Herbert further asserts that even if the text messages were admissible,

the trial court was required to provide a limiting instruction to the jury.

      The State asserts the text messages were intrinsic evidence not within

the scope of Rule 404(b) because they directly prove the commission of the

conspiracy to commit robbery and the eventual robbery of the gas station for

which defendant was on trial. We disagree.

      The admission of the text messages is precisely the situation where a

limiting instruction is necessary to ensure that the jury does not misapply this

highly prejudicial evidence. To be sure, the text message conversation, which

shows an agreement to steal from the safe at Onyeagoro's workplace, is strong

evidence of a conspiracy to commit a theft at that location.        Herbert and

Onyeagoro discussed a quick "grab and go" theft at Onyeagoro's workplace

after Onyeagoro got off work.       However, neither Herbert nor Onyeagoro

mentioned the use of force or use of threats to accomplish the theft, which are

essential elements to a conspiracy to commit robbery. See N.J.S.A. 2C:15-1

and N.J.S.A. 2C:5-2.

      More fundamentally, the text messages did not discuss plans to rob the

gas station. They are extrinsic to Herbert's charges. Accordingly, the trial

court was required to conduct a Rule 404(b) analysis but did not do so. The

court should have analyzed whether the text messages could be used to show a

common plan or motive to prove a robbery, unlawful possession of a firearm,

or possession of a firearm for unlawful purposes.        In any event, even if

admissible under Rule 404(b), the trial court would have needed to provide the

jury with a limiting instruction. See 

Stevens, 115 N.J. at 309

(explaining that

trial courts should "take pains to instruct juries carefully and comprehensively,

with ample reference to the specific evidence and issues in the case, on the

limited relevance of other[ bad act] evidence").

      First, evidence relating to an agreement to make a quick "grab and go"

did not "directly prove" the crime of robbery, which has more elements than

the crime contemplated in the text messages. The text messages also did not

facilitate the commission of the gas station robbery. While the jury eventually

found defendant not guilty of robbery, the text message evidence may well

have been used in the jury's deliberation in considering whether to convict

Herbert of the lesser-included offenses "because he is a bad person in general."

Cofield, 127 N.J. at 336

(quotations omitted).

      In addition, the text messages did not directly prove or facilitate the

commission of the crimes of unlawful possession of weapons or possession of

weapons for unlawful purposes. N.J.S.A. 2C:39-4(a)(1) and N.J.S.A. 2C:39-

5(b). While the trial court eventually dismissed the unlawful possession of a

weapon charge, the jury found defendant guilty of possession of a weapon for

an unlawful purpose. The jury may well have impermissibly used the highly

prejudicial text messages as evidence that Herbert was likely to commit this


      Our Supreme Court has determined that a Rule 404(b) violation

necessitates reversal if the limiting instruction is inadequate. See 

Cofield, 127 N.J. at 341-42

(ordering a reversal where the limiting instruction "did not

narrowly focus the jury's attention on the specific use of other[ bad act]

evidence, but instead made reference only to the generalities of [Rule

404(b)].").   But see 

Stevens, 115 N.J. at 309

(concluding reversal is not

necessary where the trial court twice cautioned the jury against using 404(b)

evidence as propensity evidence).     Here, the trial court's failure to give a

limiting instruction was "plain error clearly capable of producing an unjust


Bunch, 180 N.J. at 541


Afanador, 151 N.J. at 54


Accordingly, we reverse Herbert's convictions for aggravated assault by

pointing a firearm, theft, and possession of a firearm for an unlawful purpose.

      In addition, we also reverse Herbert's conviction for conspiracy to

commit robbery.     The text messages were not admissible to prove the

conspiracy to commit the robbery at the gas station.        Combined with the

possible prejudice implicated from Onyeagoro's statement about the low

profits the night before, which was stricken but not cured, we conclude that the

admission of the text messages also constituted plain error infecting the

conviction for conspiracy.

      On remand, Herbert shall be retried after conducting a Rule 404(b)

analysis. If deemed admissible as to the charges other than conspiracy to

commit robbery, an appropriate limiting instruction shall be given to the jury.


      Herbert argues that the trial court erred in admitting expert testimony

and maps about cell-site analysis that was not sufficiently reliable and

irrelevant,   and     that   the   prosecutor   engaged   in   misconduct     by

mischaracterizing that testimony.


      We first address whether the expert testimony was sufficiently reliable to

be admissible.      A trial court's evidentiary determination that a witness is

qualified to present expert testimony under N.J.R.E. 702 is reviewed for abuse

of discretion "and 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 provides: "If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education may testify thereto in the form of an

opinion or otherwise."

      The party offering the expert testimony bears the burden of proof. State

v. Harvey, 

151 N.J. 117

, 167 (1997) (citing Windmere, Inc. v. Int'l Ins. Co.,


105 N.J. 373

, 378 (1987)). Our Supreme Court has set out a three-part test for

the admission of expert testimony:

            (1) the intended testimony must concern a subject
            matter that is beyond the ken of the average juror; (2)
            the field testified to must be at a state of the art such
            that an expert's testimony could be sufficiently
            reliable; and (3) the witness must have sufficient
            expertise to offer the intended testimony.


[Jenewicz, 193 N.J. at 454


      Herbert essentially contests only the second prong under Jenewicz, that

the cell-site tower analysis was not sufficiently reliable.       He asserts that

Durando's testimony—that Herbert's cell phone was within a particular area

around the time of the crime—required a "drive test" because, as Durando

testified, cell-site information can only give a rough estimation of Herbert's

location. The State relies on Frye v. United States, 

293 F. 1013

, 1014 (D.C.

Cir. 1923), for the proposition that it satisfied the second prong because cell -

site tests have gained "general acceptance in the particular field."

      The test for admissibility in criminal cases is "whether the scientific

community generally accepts the evidence." 

Harvey, 151 N.J. at 170


State v. Spann, 

130 N.J. 484

, 509 (1993); 

Windmere, 105 N.J. at 386


"General acceptance, however, does not require complete agreement over the

accuracy of the test or the exclusion of the possibility of error."

Id. at 171.


establish general acceptance, "the party proffering the evidence need not show

infallibility of the technique nor unanimity of its acceptance in the scientific

community." State v. Cassidy, 

235 N.J. 482

, 492 (2018). Here, the State must

prove that the cell-site analysis methodology "and the interpretation of its

results are non-experimental, demonstrable techniques that the relevant

scientific community widely, but perhaps not unanimously, accepts as


Harvey, 151 N.J. at 171


      "Whether expert testimony is sufficiently reliable to be admissible under

N.J.R.E. 702 is a legal question we review de novo." State v. J.L.G., 

234 N.J. 265

, 301 (2018). "When reviewing a decision on the admission of scientific

evidence, an appellate court should scrutinize the record and independently

review the relevant authorities, including judicial opinions and scientific


Harvey, 151 N.J. at 167


      The trial court relied on United States v. Jones, 

918 F. Supp. 2d 1

(D.D.C. 2013), which recognized the reliability of cell-site analysis to

determine the relative location of a cell phone at a particular time. Notably,

defendant does not assert that there is controlling case law that finds cell -site

analysis unreliable or otherwise inadmissible.        Instead, defendant argues

simply that cell-site data is not the most helpful information.

      Having carefully reviewed the record in light of the applicable

precedents, we affirm the trial court's conclusion that historical cell-site data

analysis is generally accepted in the scientific community and sufficiently

reliable to be admitted into evidence to show the general location of a cell

phone at a particular time. The trial court properly found that cell-site analysis

is a sufficiently reliable method to determine the approximate location of a cell

phone at the time an incident occurred.

      There is no published opinion in this State squarely addressing the

admissibility of historical cell-site data analysis in a criminal matter, but a

number of out-of-state and federal precedents, however, are instructive.

      Federal courts have been receptive to expert testimony regarding

historical cell-site data analysis. "District courts that have been called upon to

decide whether to admit historical cell-site analysis have almost universally

done so." United States v. Hill, 

818 F.3d 289

, 297 (7th Cir. 2016); see United

States v. Weathers, 

169 F.3d 336

, 339 (6th Cir. 1999) (discussing admission of

expert testimony on historical cell-site data analysis); United States v.

Reynolds, 626 Fed. App'x 610, 618 (6th Cir. 2015) 6 (allowing historical cell

  We cite these cases for sake of completeness, noting that although the cases
are reported in the Federal Appendix, they are not published and, therefore, do
not constitute precedent. R. 1:36-3. We note, however, that Rule 32.1 of the
site data analysis to show where parties other than defendant were not); United

States v. Schaffer, 

439 F. App’x 344

, 347 (5th Cir. 2011) (concluding that the

field   of   historical   cell-site   data    analysis   "is   neither   untested    nor


Jones, 918 F. Supp. 2d at 5

(finding "the use of cell phone

location records to determine the general location of a cell phone" to be both

widely accepted and "based on reliable methodology"); United States v. Evans,

892 F. Supp. 2d 949

, 955-56 (N.D. Ill. 2012) (finding "granulization theory" to

be unreliable science, but still finding other historical cell site data analysis

methods have been adequately tested).

        So too have the courts of other States. See State v. Johnson, 

797 S.E.2d 557

, 563 (W.Va. 2017); Pullin v. State, 

534 S.E.2d 69

, 71 (Ga. 2000); Wilson

v. State, 

195 S.W.3d 193

, 200-02 (Tex. Crim. App. 2006) (allowing a Sprint

employee to testify as an expert on historical cell site data analysis).

        In Hill, the Seventh Circuit found that "[h]istorical cell-site analysis can

show with sufficient reliability that a phone was in a general area, especially in

a well-populated one. It shows the cell sites with which the person's cell

phone connected, and the science is well 

understood.” 818 F.3d at 298


Evans, 892 F. Supp. 2d at 956


Federal Rules of Appellate Procedure permits citation to opinions reported in
the Federal Appendix.
      An expert may rely on any "sufficiently reliable" test; the test need not

be the most accurate.

Ibid. Because cell-site data

is sufficiently reliable and

may indicate the general whereabouts of a person's cell phone, the trial court

properly admitted Durando's testimony.


      We next address whether the cell-site analysis was irrelevant. "'Relevant

evidence' means evidence having a tendency in reason to prove or disprove

any fact of consequence to the determination of the action." N.J.R.E. 401. An

explanation of how cell towers work and the general location of Herbert's cell

phone on the night of the incident would be helpful to the jury in

understanding the State's claims about the movements and whereabouts of

Herbert and his co-conspirators. The cell-site analysis would allow the jury to

narrow the possible location of Herbert's cell phone during the course of the

conspiracy. Accordingly, it was relevant.


      Defendant further contends the prosecutor committed misconduct by

mischaracterizing the cell-site analysis testimony and evidence during

summation. We disagree.

      "[A] prosecutor is afforded considerable leeway to make forceful

arguments in summation." State v. Bradshaw, 

195 N.J. 493

, 510 (2008) (citing

Bender v. Adelson, 

187 N.J. 411

, 431 (2006)).          "Indeed, prosecutors in

criminal cases are expected to make vigorous and forceful closing arguments

to juries." State v. Frost, 

158 N.J. 76

, 82 (1999) (citing State v. Harris, 

141 N.J. 525

, 559 (1995)). "Nevertheless, a prosecutor's summation 'is limited to

commenting upon the evidence and reasonable inferences to be drawn

therefrom.'"   State v. Feaster, 

156 N.J. 1

, 58-59 (1998) (quoting State v.


120 N.J. 262

, 296 (1990)). A prosecutor "should [neither] make

inaccurate legal or factual assertions during a trial," 

Bradshaw, 195 N.J. at 510


Frost, 158 N.J. at 85

), nor make "references to matters extraneous to

the evidence," State v. Jackson, 

211 N.J. 394

, 408 (2012). Mischaracterizing

evidence is similarly improper. See 

Frost, 158 N.J. at 85

(concluding "the

prosecutor's comments were not only inaccurate, they were misleading as


      That said, prosecutorial "misconduct does not warrant reversal unless it

is 'so egregious that it deprived the defendant of a fair trial.'" 

Jackson, 211 N.J. at 409


Frost, 158 N.J. at 83

).      "Prosecutorial comments are

deemed to have violated the defendant's right to a fair trial when they 'so

infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.'"

Ibid. (alteration in original)

(quoting State v. Koedatich, 

112 N.J. 225

, 338 (1988)).

      During summation, the prosecutor stated, in relevant part:

                   It's been clear what it is and what it is not. This
            is not GPS location data. This is not going to tell you
            the cross street somebody is sitting at, the house
            they're in. It is a tool that's twofold. Those twofold
            tools are for the first purpose being general area.
            Where are these people -- where is this phone
            generally located.


                  Between the hours of then 10 p.m. and 10:49
            p.m. both Gregory Herbert and Kadeem Charles' cell
            phones are pinging off the towers . . . right in
            Irvington. We know where their cell phones are
            located and the State submits to you where these two
            men are located at 10:50, they're together.


            Now, between 2:34 and 2:37 a.m. we have cell phones
            hitting down in Hillside.

These statements were, for the most part, well within the wide latitude

afforded a prosecutor during his summation. See State v. DiFrisco, 

137 N.J. 434

, 474 (1994). The statement that the cell-site data could not give a precise

GPS-like location was accurate. The statement that we knew the cell phone

was first in Irvington and then in Hillside is likewise accurate according to

Durando's testimony.      But the statement that the defendants were together

because their cell phones connected to the same towers for hours on the night

of the crime went beyond a natural inference drawn from the evidence. At

most, one could reasonably infer defendants were in the same vicinity during

the period in question.

      With that singular exception, we hold that the prosecutor did not unfairly

or inaccurately characterize the expert's testimony, much less engage in any

misconduct that deprived defendant of a fair trial. On retrial, the prosecutor

shall not argue that the cell-site analysis demonstrated that defendants were



      We next address Herbert's argument that the trial court erred by failing

to instruct the jury on accomplice liability regarding the aggravated assault by

pointing a firearm charge. We agree.

      "Accurate and understandable jury instructions in criminal cases are

essential to a defendant's right to a fair trial." State v. Concepcion, 

111 N.J. 373

, 379 (1988). "A charge is a road map to guide the jury, and without an

appropriate charge a jury can take a wrong turn in its deliberations. Thus, the

court must explain the controlling legal principles and the questions the jury is

to decide."    State v. Martin, 

119 N.J. 2

, 15 (1990).         "Erroneous jury

instructions on matters material to a jury's deliberations are ordinarily

presumed to be reversible error." State v. Jackmon, 

305 N.J. Super. 274

, 277-

78 (App. Div. 1997).

      Where defense counsel does not object to a jury instruction at trial, the

reviewing court will review it for plain error. R. 2:10-2. An erroneous jury

instruction is plain error where the "possibility of injustice is 'sufficient to

raise a reasonable doubt as to whether the error led the jury to a result it

otherwise might not have reached.'" State v. Hogan, 

297 N.J. Super. 7

, 21

(App. Div. 1997) (quoting State v. Macon, 

57 N.J. 325

, 336 (1971)).

      Importantly, a trial court's failure to instruct the jury on accomplice

liability with respect to a lesser-included offense is plain error where

"reasonable persons could differ in their perceptions concerning [the

defendant's] exact role and level of participation in the criminal events." State

v. Harrington, 

310 N.J. Super. 272

, 278-80 (App. Div. 1998). See also State v.


368 N.J. Super. 298

, 309 (App. Div. 2004) (finding reversible error

where the trial court instructed the jury on accomplice liability separate from

the lesser-included offense).     "The trial court must also 'make specific

reference to [lesser-included] offenses in the context of its charge on

accomplice liability.'" 

Walton, 368 N.J. Super. at 307


Harrington, 310 N.J. Super. at 278

). A "trial court's failure to refer to accomplice liability

while giving the lesser included charge [is] reversible error."

Id. at 307


Harrington, 310 N.J. Super. at 279


      In State v. Schmidt, the defendant was indicted for conspiracy to

distribute narcotics and possession of narcotics; however, the conspiracy to

distribute narcotics charge involved dates and parties different from the

substantive possession charge. 

110 N.J. 258

, 265-66 n.1 (1988). The trial

court failed to instruct the jury that "it could find the defendant guilty of the

possession counts on the basis of vicarious liability as an accomplice or as a


Id. at 265.

The Court held that "[s]ince the jury charge failed to

instruct the jury on the vicarious liability of a conspirator as the basis for guilt,

the constructive possession counts [could not] could not be sustained on that


Id. at 265-66, 275-76.

      The State concedes that the trial court failed to instruct the jury on

accomplice liability with respect to the aggravated assault by pointing a

firearm charge but contends that, viewing the jury instructions in their entirety,

the failure to instruct as to accomplice liability did not lead to an unjust result.

The State asserts that the same verdict would have resulted from a correct jury

instruction. The State also contends that Schmidt is inapposite because the

jury heard evidence relating to the defendant's charge of conspiracy and could

have used that theory as a basis to convict defendant of aggravated assault.

      The trial judge did not instruct the jury that Herbert could be vicariously

liable for the assault charge from his participation in a conspiracy to commit a

robbery or through accomplice liability. Without these instructions, the jury

had no basis to find Herbert guilty of aggravated assault by pointing a firearm

since there was no testimony or evidence presented that Herbert possessed the

BB gun.     Therefore, the jury would have to rely on either a theory of

conspiracy or accomplice liability to convict Herbert of the aggravated assault

by pointing a firearm. The failure to provide an accomplice liability charge on

the lesser-included aggravated assault offense constituted plain error.

Accordingly, we reverse Herbert's conviction for aggravated assault and

remand for retrial.


      Herbert further argues that the trial court erred by not granting a

judgment of acquittal on the charges of possession of a firearm for an unlawful

purpose and aggravated assault by pointing a firearm. We disagree.

      A defendant may move for judgment of acquittal under Rule 3:18-1 if

the State has not proven each of the elements of a crime.       A motion for

judgment of acquittal may be granted if, viewing all the evidence in the light

most favorable to the State, "as well as all of the favorable inferences which

could reasonably be drawn therefrom," no "reasonable jury could find guilt of

the charge beyond a reasonable doubt." State v. Reyes, 

50 N.J. 454

, 458-59

(1967) (citing State v. Fiorello, 

36 N.J. 80

, 90-91 (1961)). Such instances of

guilt may "be based on circumstantial evidence." State v. Franklin, 

52 N.J. 386

, 406 (1968) (citing 

Fiorello, 36 N.J. at 86


      The Reyes standard applies to appellate review of the sufficiency of

evidence. State v. Kittrell, 

145 N.J. 112

, 130 (1996). "In deciding whether the

trial court was correct in denying [a Reyes] motion, we . . . take into account

only the evidence on the State's case, unaided by what defendant later

developed at trial." State v. Lemken, 

136 N.J. Super. 310

, 314 (App. Div.


      Herbert moved under Reyes to dismiss the charges of unlawful

possession and possession for unlawful purpose. The trial court dismissed the

unlawful possession of a weapon charge but not the possession of a weapon for

an unlawful purposes charge.

      Defense counsel did not move to dismiss the aggravated assault by

pointing a firearm charge. On the contrary, defense counsel moved to include

the aggravated assault charge as a lesser-included offense. Accordingly, as to

aggravated assault charge, we review for plain error. R. 2:10-2.

      A person is guilty of possession of a weapon for an unlawful purpose if

they possess a firearm with the purpose to use it unlawfully. N.J.S.A. 2C:39-

4(a)(1). A firearm is defined under the statute as:

            any firearm which is in the nature of an air gun, spring
            gun or pistol or other weapon of a similar nature in
            which the propelling force is a spring, elastic band,
            carbon dioxide, compressed or other gas or vapor, air
            or compressed air, or is ignited by compressed air, and
            ejecting a bullet or missile smaller than three-eighths
            of an inch in diameter, with sufficient force to injure a

            [N.J.S.A. 2C: 39-1(f).]

The same definition of firearm applies to aggravated assault by pointing a

firearm charge, "whether or not the actor believes it to be loaded." N.J.S.A.

2C:12-1(b)(4); N.J.S.A. 2C:39-1(f).

      A BB gun is a firearm within the definition of N.J.S.A. 2C: 39-1(f).

State v. Mieles, 

199 N.J. Super. 29

, 37-38 (App. Div. 1985). An inoperable

BB gun also qualifies as a firearm under the statute. State v. Austin, 335 N.J.

Super. 486, 490 (App. Div. 2000). A "fake or toy gun" does not. State v.


101 N.J. 573

, 584 (1986).

      As to possession of a firearm for an unlawful purpose, the State need not

prove the operability of a firearm at the time of the offense; it need only prove

the firearm was originally designed as operable.

Id. at 584-85.

The trial court

need only be satisfied "that the device was originally designed to deliver a

potentially-lethal projectile and hence 'real.'"

Id. at 589.

To that end, "an

object's authentic design may be inferred from appearance or based on lay

testimony, but in no case is it dependent upon empirical examination of the


Id. at 589-90.

Indeed, the Gantt Court found sufficient evidence

existed to support the finding that the weapon involved was a "firearm" even

though the weapon used in the robbery was never recovered.

Id. at 591.

      Here, as in Gantt, there was no evidence or testimony to contradict the

conclusion that the BB gun was real. See

ibid. Herbert offered no


that the weapon was a toy or fake. Accordingly, the trial court was "justified

in concluding that the [BB gun] was real and therefore a firearm within the

meaning of N.J.S.A. 2C:39-1(f)."

Ibid. Therefore, the trial

court did not err

by denying a judgment of acquittal on that count.

      The same analysis applies to the aggravated assault by pointing charge.

An instrument may be regarded as a firearm for purposes of aggravated assault

by pointing a firearm without showing that the instrument was operable at the

time of the offense. 

Mieles, 199 N.J. Super. at 38-39

. Further, "both loaded

and unloaded weapons should be considered to be firearms in prosecutions for

aggravated assault under N.J.S.A. 2C:12-1(b)(4)."

Id. at 38

(citing State v.


194 N.J. Super. 192

, 198 (App. Div. 1984)).

      On the other hand, the State must prove the operability of a firearm on

the unlawful possession charge. See N.J.S.A. 2C:39-5(b). Indeed, as to that

charge, the trial judge recognized that the jury would need to speculate as to

the operability of the BB gun without expert testimony. No such evidence was

presented. The trial court properly dismissed that count.


      Because we reverse Herbert's convictions and remand for retrial, we do

not reach his excessive sentencing argument.

      Reversed and remanded for further proceedings and retrial consistent

with this opinion. We do not retain jurisdiction.