                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4638-15T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WAYNE J. JOHNSON, JR.,
a/k/a WAYNE JAMEEL JOHNSON,

     Defendant-Appellant.
________________________________

                    Submitted November 9, 2018 – Decided April 30, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-06-1855.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Peter T. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Patrick D. Isbill, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Wayne J. Johnson, Jr. appeals his convictions of two

aggravated assault counts and two weapon-possession counts, as well as the

sentences he received for those convictions. We affirm defendant's convictions.

However, we vacate the sentence imposed on the weapon-possession count of

which defendant was acquitted, direct that defendant be sentenced on the

weapon-possession count of which he was convicted but for which he received

no sentence, and conclude that the two aggravated assault counts should have

been merged. We therefore remand the matter for resentencing and correction

of the judgment of conviction to accurately reflect the jury's verdict.

                                        I.

      Shortly before midnight on November 15, 2012, Christopher Giles was

alone in bed at his home in Camden County. He lived with his daughter, who

was not home at that time, and his son, codefendant Justin Angelino. Giles was

not in contact with his son for most of Angelino's life, having lost touch with

him when he was a child. The two reunited in October 2011, when Angelino,

by then an adult, began to live with his father. Giles described his relationship

with his son during their cohabitation as infused with hostility and tension.

Although the two had exchanged angry words, they had not had a physical

altercation. On the night in question, Giles was not expecting Angelino at th e


                                                                          A-4638-15T2
                                        2
residence because he received a text message from his son stating that he was

going to visit his aunt.

      At approximately 3:00 a.m., Giles woke up to use the bathroom. He

encountered his son and defendant walking from the hallway into Giles's

bedroom. Although the lighting was low, Giles recognized defendant, who he

had met at least two times before, as his son's acquaintance. Giles was surprised

to see them both, in light of his son's earlier text message. After engaging in

short conversation with the two men, Giles returned to bed.

      Video from a nearby Walmart showed Angelino and defendant shopping

at approximately 3:30 a.m. Angelino paid for several items. It was later

discovered that charges were made on Giles's credit card at that hour. Giles had

not authorized the use of his card.

      At approximately 5:00 a.m., Giles awoke to find Angelino and defendant

in his bedroom. Angelino was approximately three feet away from Giles, turned

to him and said, "hey, Dad, here's your rent, I'm going to put it on the desk here."

According to Giles, immediately thereafter Angelino and defendant began

pummeling, bludgeoning, and stabbing him.           He was "surprised, shocked,

confused, [and] angry" by the unprovoked attack. Giles remembered getting hit

on the left side of the head with a blunt object, and heading toward


                                                                            A-4638-15T2
                                         3
unconsciousness. He attempted to sit up and defend himself, but the attack,

which lasted one or two minutes, suddenly stopped. Angelino and defendant

left the residence.

      Giles tried to get out of bed, finding it difficult to stand because he was

bleeding profusely and there was so much blood on the floor that his bare feet

were slipping. He applied a towel to a wound on his arm and dialed 9-1-1. Giles

told the dispatcher that his son and "a friend of his" had attacked him. Giles did

not identify defendant by name or give a physical description of him. He told

the dispatcher that he could not locate his wallet, which he kept in his bedroom.

      At a trauma center, a plastic surgeon reattached Giles's ear, and repaired

his upper lip, which had been slashed. An examination revealed that one of his

triceps was detached, requiring an emergency surgical repair.          Giles also

suffered ulnar nerve damage, leaving two of his fingers numb on his dominant

hand. Damage to Giles's thumb muscle seriously impaired his use of that finger.

Giles described himself as "maimed and disfigured" from cuts to his face, scalp,

and body during the attack.

      Investigating officers found a barbell on Giles's bloody bed, a fake

handgun on the bedroom floor, and in the bathroom an open folding knife with

the blade extended, a white t-shirt, and a blood-stained towel. The walls, door,


                                                                          A-4638-15T2
                                        4
floor, and furniture in the bedroom were smeared with blood, as was the kitchen

table and walls, the entrance of the residence, the wall leading to the bathroom,

the bathroom, and the walls and floor of the hallway leading to the bedroom.

      While being interviewed by detectives, Giles identified his son and

"another man" as the assailants. Officers found a bag of items that did not

belong to Giles in his car, along with his wallet. Giles testified that he kept his

car keys next to his wallet in his bedroom.

      An officer conducting a perimeter search in the area of Giles's residence

observed what he believed to be a male figure, later identified as defendant,

moving in a crouched manner across the front of a building. When stopped by

the officer, defendant had a large area of blood on his shirt and blood on his

hands. He told the officer that he had been stabbed in his chest, abdomen, and

hands. A medical examination revealed cuts and lacerations on defendant's

hands, but no wounds to his chest or abdomen.

      While being treated by medical personnel in an ambulance, and without

commands or instructions from the officer, defendant made statements about the

assault on Giles. According to the officer,

            [h]e said, along the lines of, I didn't want to do it, white
            boy made me do it. And he made the statement of [sic]
            he didn't want to hurt that man. White boy held a gun
            to me and said if I didn't kill him, he would kill me.

                                                                           A-4638-15T2
                                         5
            And then he asked is he okay? White boy made me do
            it, I believe.

While in the emergency department, another officer heard defendant, without

prompting by the officer, ask "how the person he had assaulted, attacked, how

he was doing." In addition, when asked by medical personnel how he was

injured, defendant stated that he cut himself. An expert witness testified that

blood on defendant's tank top belonged to Giles.

      A Camden County grand jury charged defendant with: first-degree

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree robbery,

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

2C:5-2 and N.J.S.A. 2C:15(a)(1); second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-

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

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and

fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e).1

      At trial, defendant's counsel argued that there was doubt as to the identity

of the person who assisted Angelino in attacking Giles because: (1) Giles never


1
  Angelino appeared at his father's apartment shortly after the attack with his
clothes disheveled and splattered with blood. Police immediately arrested him.
The indictment against defendant also lodged charges against Angelino. The
two were tried separately.
                                                                          A-4638-15T2
                                        6
expressly identified defendant as one of his attackers; (2) there was no direct

proof that defendant participated in the attack; (3) the wounds on defendant's

hands suggested he was attempting to help Giles and stop the attack; (4) there

were questions regarding the methods used to collect the shirt attributed to

defendant that was stained with Giles's blood; and (5) defendant had no motive

to attack Giles. Defense counsel argued to the jury that it was "critically

important" to make sure that the "correct perpetrator of the crime" be identified.

      Defendant did not testify. However, his statement in the ambulance that

he participated in the assault only because he had been threatened by Angelino

was admitted into evidence. Defendant's counsel did not seek a jury instruction

on the affirmative defense of duress. See N.J.S.A. 2C:2-9(a). At the conclusion

of trial, the court dismissed the two counts of the indictment charging robbery

and conspiracy to commit robbery for insufficient evidence.

      The jury convicted defendant of second-degree aggravated assault, third-

degree aggravated assault, third-degree possession of a weapon for an unlawful

purpose, and fourth-degree possession of a weapon.           The jury acquitted

defendant of attempted murder and possession of an imitation firearm.

      For second-degree aggravated assault, the court sentenced defendant to

eight years of imprisonment, with an eighty-five percent period of parole


                                                                          A-4638-15T2
                                        7
ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The

court imposed a concurrent sentence of four years of imprisonment for third-

degree aggravated assault. The court merged the third-degree possession of a

weapon count into the second-degree assault count.

      It appears that because of a change in the numbering of the counts after

dismissal of the robbery counts, the court transposed two of the weapons counts

at sentencing. The court imposed no sentence on the fourth-degree unlawful

possession of a weapon count, of which defendant was convicted. In addition,

the court imposed a consecutive sentence of fifteen months on the fourth-degree

possession of an imitation firearm count, of which defendant was acquitted.

      This appeal followed. Before us, defendant argues:

            POINT I

            A NEW TRIAL IS REQUIRED BECAUSE THE
            COURT FAILED TO INSTRUCT THE JURY ON THE
            DURESS DEFENSE, EVEN THOUGH THE
            EVIDENCE INCLUDED JOHNSON'S STATEMENT
            THAT HE WAS THREATENED WITH DEATH AND
            FORCED AT GUNPOINT TO PARTICIPATE IN THE
            ASSAULT.    U.S. CONST. AMEND. XIV; N.J.
            CONST. ART. I, PARA. 1. (not raised below).

            POINT II

            A RESENTENCING IS REQUIRED FOR THE
            COURT TO VACATE THE SENTENCES ON
            COUNTS FIVE AND EIGHT AND TO MAKE A

                                                                       A-4638-15T2
                                      8
            DISPOSITION ON COUNT SEVEN.                 (not raised
            below).

            A.    The Court Should Have Merged Assault Count
                  Five into Assault Count Four Because a Single
                  Assault Occurred.

            B.    The Court Mixed Up the Counts; Failed to Make
                  a Disposition on Count Seven, on Which Johnson
                  Had Been Convicted; and Imposed a Sentence on
                  Count Eight, on Which Johnson Had Been
                  Acquitted.

            POINT III

            A RESENTENCING IS REQUIRED BECAUSE THE
            SENTENCING COURT IMPROPERLY FAILED TO
            ALLOW JOHNSON TO ALLOCUTE IN SUPPORT
            OF MITIGATING FACTORS. (not raised below).

                                       II.

A.    Jury Instructions.

      Defendant argues that the trial court erred by not sua sponte instructing

the jury regarding the affirmative defense of duress. It is well-settled that

"[a]ccurate 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). However, "[i]f the defendant does not object to the charge at the time it

is given, there is a presumption that the charge was not error and was unlikely

to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).


                                                                         A-4638-15T2
                                       9
Therefore, "the failure to object to a jury instruction requires review un der the

plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007).

            As applied to a jury instruction, plain error requires
            demonstration of "legal impropriety in the charge
            prejudicially affecting the substantial rights of the
            defendant and sufficiently grievous to justify notice by
            the reviewing court and to convince the court that of
            itself the error possessed a clear capacity to bring about
            an unjust result."

            [State v. Chapland, 187 N.J. 275, 289 (2006) (quoting
            State v. Hock, 54 N.J. 526, 538 (1969)).]

The mere possibility of an unjust result is not enough to warrant rev ersal of a

conviction. State v. Jordan, 147 N.J. 409, 422 (1997). The error "must be

evaluated in light 'of the overall strength of the State's case.'" State v. Walker,

203 N.J. 73, 90 (2010) (quoting Chapland, 187 N.J. at 289).

      When considering whether to charge a jury sua sponte with an affirmative

defense, a trial court must apply the standard applicable to its duty to charge the

jury sua sponte with a lesser-included offense. Id. at 86-87. A trial court need

not "sift through the entire record . . . to see if some combination of facts and

inferences might rationally sustain" the defense. State v. R.T., 205 N.J. 493,

509 (2011) (Long, J., concurring) (quoting State v. Choice, 98 N.J. 295, 299

(1985)). Rather, when "counsel does not request the instruction, it is only when

the evidence clearly indicates the appropriateness of such a charge that the court

                                                                           A-4638-15T2
                                       10
should give it." Walker, 203 N.J. at 87 (footnote omitted). "[T]he need for the

charge must 'jump off' the proverbial page." R.T., 205 N.J. at 510 (Long, J.,

concurring).

      Prior to giving a sua sponte charge, the court must also consider other

factors. "Those factors include whether counsel is surprised, how the case was

tried, whether the defense is incompatible with defendant's position at trial, or

whether the instruction would prejudice the defense in some way." Ibid. (Long,

J., concurring). When a jury charge is "so inconsistent with the defense as to

undermine the fairness of the proceedings, the trial court may" not issue the sua

sponte charge. State v. Garron, 177 N.J. 147, 181 (2003). "Obviously, strategy

takes on added significance where a charge regarding an affirmative defense is

at issue . . . [as] a defendant generally has a right to defend a case as he sees fit."

R.T., 205 N.J. at 510 (Long, J., concurring). "All affirmative defenses from self-

defense, to insanity, have, at their core, the notion that a defendant has indeed

committed the interdicted act but that he should be excused from its

consequences." Id. at 511 (Long, J., concurring) (citations omitted).

      Duress is codified as an affirmative defense applicable when

             the actor engaged in the conduct charged to constitute
             an offense because he was coerced to do so by the use
             of, or a threat to use, unlawful force against his person
             or the person of another, which a person of reasonable

                                                                               A-4638-15T2
                                         11
            firmness in his situation would have been unable to
            resist.

            [N.J.S.A. 2C:2-9(a).]

"[T]he burden [is] on the defendant to come forward with some evidence of

[duress] and the burden of proof [is] on the State to disprove the affirmative

defense beyond a reasonable doubt." State v. Romano, 355 N.J. Super. 21, 35-

36 (App. Div. 2002).

      After a careful review of the record, we agree with the State's argument

that the trial court's failure to sua sponte instruct the jury on the affirmative

defense of duress was not plain error. The only evidence suggesting defendant

was coerced into attacking Giles was his bare statement while being treated in

an ambulance shortly after the attack. Neither defendant nor Angelino testified.

The record, therefore, contained no further evidence regarding when, how, or

where Angelino allegedly threatened defendant or whether a person of

reasonable firmness in defendant's situation could have resisted the alleged

threat. Defendant's statement, standing alone, was insufficient to have the

affirmative defense "jump off" the page, requiring the trial court's intervention

despite defense counsel's failure to ask for the duress instruction.

      Moreover, at trial, defense counsel's primary strategy was to argue that

there was uncertainty as to the identity of the person who participated with

                                                                         A-4638-15T2
                                       12
Angelino in attacking his father because there was no direct evidence linking

defendant to the assault. During summation, defense counsel argued that the

evidence produced at trial did not "suggest or prove . . . beyond a reasonable

doubt that [defendant] was there attacking this victim" and that it was important

that the "correct perpetrator of the crime" be identified.

      After trial, defense counsel acknowledged defendant's strategic decision

not to pursue a duress defense. In a letter to the court prior to the second

sentencing hearing, defense counsel stated, "Mr. Johnson indicates that his co-

defendant held a gun to his head and forced him to commit the crime. Although

Mr. Johnson strategically decided not to pursue that fact during the trial, he

would like the court to consider it for sentencing purposes[.]" Had the court sua

sponte instructed the jury on duress, defendant's theory of the case would have

been undermined, as the jury might have viewed the instruction as a sign that

the court considered the evidence to prove defendant participated in the attack.

B.    Merger of the Aggravated Assault Convictions.

      "Appellate courts review sentencing determinations in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "Merger is based

on the principle that 'an accused [who] has committed only one offense . . .

cannot be punished as if for two.'" State v. Miller, 108 N.J. 112, 116 (1987)


                                                                         A-4638-15T2
                                       13
(alteration in original) (quoting State v. Davis, 68 N.J. 69, 77 (1975). Merger

prohibits "double punishment for the same offense[,]" Davis, 86 N.J. at 77, and

"implicates a defendant's substantive constitutional rights[,]" State v. Tate, 216

N.J. 300, 302 (2013) (quoting Miller, 108 N.J. at 116).

      "N.J.S.A. 2C:1-8(d) calls for merger when one offense is established by

proof of the same or less than all of the facts required to establish the

commission of another offense charged[.]" State v. Mirault, 92 N.J. 492, 502

n.10 (1983). Our courts follow a "flexible approach in merger issues that

requires us to focus on the elements of the crimes and the Legislature's intent in

creating them, and on the specific facts of each case." State v. Brown, 138 N.J.

481, 561 (1994) (quotation omitted).        The Legislature may "split a single,

continuous transaction into stages, elevate each stage to a consummated crime,

and punish each stage separately." Davis, 68 N.J. at 78. "The cases not requiring

merger have had clear statutory differences illustrating legislative intent to

fractionalize a course of conduct." Tate, 216 N.J. at 312. The court must

determine whether the two offenses are the same and therefore merge, or

whether "each [offense] requires proof of an additional fact[,] which the other

does not[,]" making merger inapplicable. State v. Dillihay, 127 N.J. 42, 48




                                                                          A-4638-15T2
                                       14
(1992) (first alteration in original) (quoting Blockburger v. United States, 284

U.S. 299, 304 (1932)).

      A defendant commits second-degree aggravated assault under N.J.S.A.

2C:12-1(b)(1), when he or she "[a]ttempts to cause serious bodily injury to

another, or causes such injury purposely or knowingly or under circumstances

manifesting extreme indifference to the value of human life recklessly causes

such injury[.]" Whereas a defendant commits third-degree aggravated assault

under N.J.S.A. 2C:12-1(b)(2) when he or she "[a]ttempts to cause or purposely

or knowingly causes bodily injury to another with a deadly weapon[.]" A serious

bodily injury "means bodily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ" while a bodily injury "means

physical pain, illness or any impairment of physical condition[.]" N.J.S.A.

2C:11-1 (a) to (b).

      Two conflicting precedents from this court influence the analysis of the

question before us. In State v. Jones, 214 N.J. Super. 68, 70-71 (App. Div.

1986), the defendant was charged with violating N.J.S.A. 2C:12-1(b)(1) for

shooting a coworker. After the jury stated it was having difficulty reaching a

verdict, the court sua sponte instructed the jury that it could consider the lesser -


                                                                             A-4638-15T2
                                        15
included offense of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3),

by recklessly causing bodily injury with a deadly weapon. Id. at 71-72. The

jury then convicted the defendant of that charge. Id. at 72.

      On appeal, the defendant argued that a (b)(3) aggravated assault is not a

lesser included offense of a (b)(1) aggravated assault. Ibid. We examined the

elements of the various types of aggravated assault:

            [T]he gravamen of the (b)(1) crime is the seriousness .
            . . of the bodily injury actually inflicted or attempted to
            be inflicted. The bodily injury component of both the
            (b)(2) and the (b)(3) is satisfied by the lesser degree of
            bodily injury . . . . Thus, the bodily injury component
            of the (b)(1) crime obviously encompasses the bodily
            injury component of the (b)(2) and the (b)(3) crimes. If
            that, however, were the only component of the (b)(2)
            and the (b)(3) crimes, they would not be aggravated
            assaults but rather simple assaults as defined by
            N.J.S.A. 2C:12-1(a)(1). What makes the (b)(2) and
            (b)(3) crimes aggravated assaults is the second element,
            namely, that the bodily injury was inflicted or
            attempted to be inflicted with a deadly weapon. This
            element of a deadly weapon is not an element of the
            (b)(1) crime.

            The question then is whether this added element of the
            (b)(2) and (b)(3) crimes precludes their categorical
            encompass by the (b)(1) crime. We conclude that the
            code itself compels an affirmative answer.

            [Id. at 73.]




                                                                          A-4638-15T2
                                       16
      Less than two years later, in State v. Graham, 223 N.J. Super. 571 (App.

Div. 1988), we again addressed whether a (b)(3) aggravated assault is a lesser-

included offense of a (b)(1) aggravated assault. In that case, the defendant was

charged with a (b)(1) aggravated assault after he shot and seriously injured his

wife with a handgun during an argument. Id. at 573-74. After a bench trial, the

court acquitted the defendant of the (b)(1) aggravated assault, but found him

guilty of what the court concluded was the lesser-included (b)(3) offense. Id. at

575. On appeal, the defendant argued that a (b)(3) aggravated assault is not a

lesser included offense of a (b)(1) aggravated assault. Ibid.

      We summarized the legal precedents as follows:

            The issue has been decided both ways in reported Law
            Division opinions. Judge Stern held that b(3) assault is
            "undoubtedly" included in a b(1) assault. State v.
            Berrios, 186 N.J. Super. 198, 203 (Law Div. 1982).
            Judge Villanueva held that it is not. State v. Mincey,
            202 N.J. Super. 548, 555-56 (Law Div. 1985). Another
            part of this court agreed with Judge Villanueva and
            relied on his reasoning. [Jones, 214 N.J. Super. at 73-
            74]. Later Judge Stern, now writing for this court,
            questioned the soundness of Jones on policy grounds
            but did not decide the issue. State v. Sloane, 217 N.J.
            Super. 417, 421-23, 423 n.2 (App. Div. 1987)[.]

                  ....

            Mincey and Jones concluded that the use of a deadly
            weapon disqualifies b(3) assault from being included


                                                                         A-4638-15T2
                                      17
           under N.J.S.A. 2C:1-8(d)(1) because "[t]his element of
           a deadly weapon is not an element of the (b)(1) crime."

           [Id. at 575-76 (alteration in original) (citation
           omitted).]

     We declined to follow the holding in Jones. As we explained:

           The analysis is flawed because N.J.S.A. 2C:1-8(d)(1)
           requires that the lesser offense be established by proof
           of the same or less than all the "facts," not "elements,"
           required to establish the commission of the offense
           charged. "Since [State v.] Davis, [68 N.J. 69 (1975),]
           we have dealt with merger issues by focusing on the
           specific facts of each case." State v. Miller, 108 N.J.
           112, 117 (1987).

           [Id. at 576 (alterations in original) (footnote omitted).]

     We instead held that

           [w]here the facts of a particular case are such that the
           State is required to prove that a b(1) assault was
           committed with a deadly weapon, a b(3) assault is a
           lesser included offense. Put another way, by its silence
           as to whether the serious bodily injury required of b(1)
           assault must be caused by a deadly weapon, the
           Legislature intended that the crime is committed
           regardless of whether a deadly weapon is used. Thus
           where a deadly weapon is used to commit a b(1) assault,
           (b)(3) assault is a lesser included offense[.]

           [Id. at 576-77.]

In light of this holding, we reviewed the facts alleged to support the (b)(1)

aggravated assault charge. We concluded that because it was


                                                                        A-4638-15T2
                                      18
            apparent from the three counts of the indictment that
            the grand jury found probable cause that defendant had
            committed a single assault and that he had committed it
            with a deadly weapon . . . he was fairly warned that he
            would have to defend himself against the charge of
            having used a deadly weapon.

            [Id. at 577.]

We concluded, therefore, that the (b)(3) aggravated assault was a lesser included

offense of the (b)(1) aggravated assault charge. Ibid.

      We agree with the rationale expressed in Graham and follow the holding

of the panel in that case. It is plain that the charges against defendant are based

on one assault that resulted in serious bodily injuries to Giles through

defendant's use of a deadly weapon. The facts the State needed to prove the

(b)(1) aggravated assault also proved the (b)(2) aggravated assault, as the State

proved that the (b)(1) aggravated assault was perpetrated with a deadly weapon.

The trial court should have merged the two aggravated assault convictions for

sentencing purposes.

C.    Sentencing on Weapon-Possession Counts.

      We agree with the parties that the trial court erred when sentencing

defendant on the weapon-possession counts. As noted above, the court made no

disposition for fourth-degree unlawful possession of a weapon, of which

defendant was convicted. In addition, the court imposed a consecutive sentence

                                                                           A-4638-15T2
                                       19
of fifteen months for fourth-degree possession of an imitation firearm, of which

defendant was acquitted. These errors appear to have been the result of a

renumbering of these counts after the court dismissed the two counts relating to

robbery.

      We therefore vacate the sentence imposed for fourth-degree possession of

an imitation firearm, and remand for sentencing on the fourth-degree possession

of weapon count and correction of the judgment of conviction to accurately

reflect the weapon-possession counts on which defendant was convicted and

acquitted.

D.    Defendant's Allocution at Sentencing.

      We are not persuaded by defendant's argument that the trial court abused

its discretion by infringing on his right to address the court at sentencing.

Defendant's right to allocution at sentencing is established in Rule 3:21-4(b),

which provides:

             Sentence shall not be imposed unless the defendant is
             present or has filed a written waiver of the right to be
             present. Before imposing sentence the court shall
             address the defendant personally and ask the defendant
             if he or she wishes to make a statement in his or her
             own behalf and to present any information in mitigation
             of punishment. The defendant may answer personally
             or by his or her attorney.



                                                                        A-4638-15T2
                                       20
A defendant has a right to present "his plea in mitigation" because even "[t]he

most persuasive counsel may not be able to speak for a defendant as the

defendant might, with halting eloquence, speak for himself." State v. Zola, 112

N.J. 384, 428 (1988) (quotations omitted). "[W]hen a trial court fails to afford

a defendant the opportunity to make an allocution . . . the error is structural and

the matter must be remanded for resentencing without regard to whether there

has been a showing of prejudice." State v. Jones, 232 N.J. 308, 319 (2018).

However, where a defendant is permitted to address the court at sentencing, but

argues that the court abused its discretion by not permitting him to make an

additional statement, the analysis differs.

      The Court's holding in Jones addresses such circumstances. In that case,

the defendant appeared for sentencing with his counsel. Id. at 312. After

defense counsel addressed the court, the defendant was permitted to speak

without interruption. Id. at 312-13. Thereafter, the defendant interrupted the

prosecutor's statement by asking, "[c]an I say something?" Id. at 313. The court

responded, "[n]o." Ibid. The "[d]efendant did not speak again nor did he or his

counsel ask to speak again." Id. at 314. In a petition for post-conviction relief,

the defendant argued that the trial court abused its discretion by not allowing

him to respond to the prosecutor's comment. Id. at 315-16.


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      The Court reviewed the trial court's control of the sentencing proceeding

with deference. "The trial court is tasked with the important responsibility of

maintaining the dignity and fairness of a sentencing proceeding while balancing

the interests of all who are affected by the sentencing of a defendant." Id. at

318. Thus, "[a]n appellate court's review of a sentencing court's imposition of

sentence is guided by an abuse of discretion standard." Ibid.

      The Court held that where a defendant seeks the opportunity for "more

time to speak" after completing his or her allocution at sentencing, the trial court

should consider: "(1) did the defendant speak already; (2) was the defendant

interrupting and abusive; and (3) does the defendant have something to say that

is responsive to . . . new substantive material" raised after the defendant

completed his or her allocution. Id. at 323-24. Where a defendant believes that

the State raised new information after he completed his allocution to which he

wishes to respond, the defendant must "raise the issue before the trial court after

the prosecutor finishe[s] speaking or in the form of a post-sentencing

application." Id. at 320-21. In addition, a defendant should "offer[] a sworn

statement – or any statement for that matter – indicating what he claims he would

have said after the prosecutor spoke." Id. at 321. As the Court explained, "[a]

trial judge is not expected to be clairvoyant. When neither defendant nor his


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counsel made any request to be heard after the prosecutor concluded her

remarks, the court reasonably proceeded with the sentencing." Ibid. It was not

an abuse of discretion for the court to "not mak[e] inquiry of [defendant] . . . in

the face of the silence from defendant and his counsel." Ibid.

      Here, the court held two sentencing hearings. Defendant was permitted

to address the court at the first hearing. After he completed his allocution, and

after the prosecutor's statement, defendant interrupted the court as it was making

findings regarding mitigating factors. The defendant appeared to be arguing that

he committed the assault at "gunpoint." The trial court responded as follows:

            Sir, the Court is speaking. Your attorney will address
            whatever concerns that you have, but please do not
            interrupt the Court as I’m speaking. I’ve given you the
            opportunity to speak already, sir. Please let the Court
            continue with her sentencing.

The defendant again tried to interrupt the court to state that he had "indicated on

record" that he committed the assault at gunpoint. The court continued with its

findings, addressing the point defendant sought to raise, and offering defense

counsel the opportunity to make a further statement:

            There is nothing before this Court. And the only thing
            I can draw an inference is that Mr. Johnson would like
            the Court to believe that he acted under duress, that he
            was forced into beating the victim because someone
            threatened him with a gun. That’s the only thing I can
            think of. I note that there was no duress argument

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                                       23
            presented to this jury. I’m satisfied with the colloquy
            that I conducted of Mr. Johnson in reference to if, in
            fact, he wanted to take the stand and put forth any type
            of a defense. Mr. Johnson waived his right. I made my
            record as to my finding that he knowingly and
            voluntarily waived his right. Now, [defense counsel],
            do you wish to expound upon what your client is trying
            to state on the record regarding gunpoint when he says
            that?

            [DEFENSE COUNSEL]: No, I don’t.

            THE COURT: Okay. So you’re not raising that there
            was any issue of duress?

            [DEFENSE COUNSEL]: I’m not raising that issue.

            THE COURT: Okay. I’ve given counsel the
            opportunity if she wanted to raise that issue before the
            Court that there were facts that led to a reason why Mr.
            Johnson acted the way he did. Again, I note that there
            was nothing during trial that was brought to the Court’s
            attention and certainly I didn’t hear a duress defense
            being filed in this matter.

At the second hearing, the court again invited defense counsel to address

mitigating factors. Counsel declined the invitation. Defendant did not ask to

address the court.

      Our review of the record reveals no abuse of discretion by the trial court.

Defendant made a statement to the court at the first sentencing hearing.

Although his attempts to interrupt the court as it was making findings to address

his claim of duress were rebuffed, the court thereafter offered his counsel the

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opportunity to make a further statement regarding duress. Defense counsel

declined that invitation.   The court subsequently held a second sentencing

hearing. Defense counsel, who sent the court a letter between the two sentencing

hearings acknowledging defendant's waiver of the duress defense, again

declined the opportunity to make a further statement to the court. Defendant did

not ask to speak at the second sentencing hearing. Moreover, it is clear from the

record that the court considered and rejected as unproven defendant's claim that

he committed the assault on Giles because he was under duress.

      Defendant's convictions are affirmed. The sentence imposed for fourth-

degree possession of an imitation firearm is vacated. The matter is remanded

for correction of the judgment of conviction and resentencing in conformity with

this opinion. We do not retain jurisdiction.




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