STATE OF NEW JERSEY VS. JOSEPH BUNDY, JR.Â (13-05-0273, SALEM COUNTY AND STATEWIDE), A-3222-14T2

Background

Defendant Joseph Bundy Jr. was tried for a fatal shooting; jury acquitted him of murder but convicted him of second-degree reckless manslaughter, second-degree unlawful possession of a firearm, second-degree aggravated assault, and simple assault with a deadly weapon.
At trial the State played Bundy’s lengthy recorded statement in which, at the end, Bundy invoked his right to counsel; defense did not object or seek a limiting instruction at trial.
Surveillance video showed Bundy near the scene wearing a white shirt; Bundy initially told police he wore a black shirt but later testified at trial he wore a white shirt.
The medical examiner who testified (Dr. Feigin) did not perform the autopsy but reviewed the autopsy report, photographs, and notes of the examining pathologist and testified that the victim died of a gunshot wound and that the manner of death was homicide.
At sentencing the judge imposed an 8-year term (85% parole disqualifier) for reckless manslaughter to run consecutively to an 8-year term (4-year parole ineligibility) for unlawful possession of a firearm, and ordered $5,720 restitution.
Defendant appealed, challenging admission of the invocation, portions of the prosecutor’s summation, consecutive sentencing under Yarbough, failure to address asserted mitigating factors, and the absence of an ability-to-pay restitution hearing; he also raised the expert-testimony issue pro se.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of defendant's invocation of counsel in recorded statement	The State played the full statement; its use was proper and not plain error given context	Playing the invocation was prejudicial and required redaction or instruction	No plain error: invocation was fleeting, defense did not object, prosecutor did not exploit it, and jury instructions sufficed (Feaster rationale)
Prosecutor's summation misconduct (denigration of counsel and burden-shifting)	Summation comments were proper argument; any minor misstatements were harmless	Prosecutor denigrated defense counsel and shifted burden to defendant	No reversible misconduct: remarks were not so egregious as to deny fair trial; objection to burden-shifting remark was sustained, struck, and cured by judge's instructions
Admissibility of medical-examiner testimony who did not perform autopsy	Expert may rely on and give an independent opinion from autopsy materials	Testimony impermissibly relayed another pathologist's conclusions and was therefore improper	No plain error: testifying ME provided his own opinion based on materials normally relied on by experts and the cause-of-death was not contested issue at trial
Consecutive sentencing under Yarbough and related sentencing errors	Consecutive terms were appropriate based on Yarbough factor analysis and the court's findings	Consecutive terms improperly imposed because unlawful-possession and manslaughter objectives overlap; judge also failed to address urged mitigating factors and did restitution without ability-to-pay hearing	Reverse and remand for resentencing: Yarbough analysis was inadequate (statutory objectives overlap as in Copling), judge may not impose consecutive terms; must address defense-requested mitigating factors and hold an ability-to-pay hearing before ordering restitution

Key Cases Cited

State v. Yarbough, 100 N.J. 627 (N.J. 1985) (framework for deciding concurrent vs. consecutive sentences)
State v. Feaster, 156 N.J. 1 (N.J. 1998) (invocation of counsel should be excised; fleeting references may not require reversal under plain-error review)
State v. Copling, 326 N.J. Super. 417 (App. Div. 1999) (consecutive sentences for murder and unlawful possession of a firearm were erroneous where statutory objectives overlap)
State v. Bass, 224 N.J. 285 (N.J. 2016) (issues when a testifying medical examiner did not perform the autopsy)
State v. Macon, 57 N.J. 325 (N.J. 1971) (plain-error standard in jury trial context)
State v. Martinez, 392 N.J. Super. 307 (App. Div. 2007) (due process requires an ability-to-pay hearing when defendant disputes restitution ability)
State v. Case, 220 N.J. 49 (N.J. 2014) (appellate guidance that sentencing courts should create a record that facilitates meaningful appellate review)