                        NOT FOR PUBLICATION WITHOUT THE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-2501-15T2
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOHNSLER ERTILIEN,

        Defendant-Appellant.

__________________________


              Submitted June 6, 2017 – Decided June 27, 2017

              Before Judges Reisner and Rothstadt.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 14-08-1962.

              Michael I. Okechuku, attorney for appellant.

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).

PER CURIAM

        Defendant Johnsler Ertilien appeals from his conviction for

second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and

N.J.S.A.      2C:5-2,     first-degree      employing     a   juvenile    in       the
commission of a crime, N.J.S.A. 2C:24-9, and the disorderly persons

offense of knowingly receiving stolen property, N.J.S.A. 2C:20-

7(a).   He was sentenced to six years in prison subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for conspiracy to

commit robbery, a concurrent term of eleven years in prison for

employing a juvenile, and a concurrent term of    two months for the

disorderly persons offense.1

     On this appeal, defendant raises the following arguments:

          POINT I.   THE COURT SHOULD HAVE ENTERED A
                     JUDGMENT OF ACQUITTAL AT THE END OF
                     THE STATE'S CASE; ALTERNATIVELY,
                     THE   COURT   SHOULD   HAVE   FOUND
                     DEFENDANT NOT GUILTY AT THE END OF
                     THE ENTIRE CASE AS THE STATE FAILED
                     TO PROVE THAT DEFENDANT COMMITTED
                     THE ACTS OF CONSPIRACY TO COMMIT
                     ROBBERY, EMPLOYING A JUVENILE TO
                     COMMIT ROBBERY AND RECEIVING STOLEN
                     PROPERTY (Raised below)

               A.    DEFENDANT WAS ENTITLED TO A JUDGMENT
                     OF ACQUITTAL AT THE END OF THE
                     STATE'S CASE, AS THE EVIDENCE TO
                     SUPPORT A CONVICTION WAS SO SCANTY
                     AND   UNRELIABLE   AS   TO   VIOLATE
                     DEFENDANT’S DUE PROCESS.

               B.    THE STATE   WAS REQUIRED TO ESTABLISH
                     EVIDENCE     DEMONSTRATING  ALL   THE
                     ELEMENTS    OF CONSPIRACY TO COMMIT
                     ROBBERY     IN   ORDER   TO   SURVIVE


1
  The concurrent two month sentence, imposed on the record at the
sentencing hearing, was not memorialized in the JOC, perhaps
because defendant had already served more than two months in jail
pre-trial.

                                   2                         A-2501-15T2
          DEFENDANT’S MOTION FOR ACQUITTAL ON
          THAT COUNT.

    C.    THE STATE WAS REQUIRED TO ESTABLISH
          EVIDENCE   DEMONSTRATING  ALL   THE
          ELEMENTS OF EMPLOYING A JUVENILE TO
          COMMIT ROBBERY IN ORDER TO SURVIVE
          DEFENDANT’S MOTION FOR ACQUITTAL ON
          THAT COUNT.

    D.    THE STATE WAS REQUIRED TO ESTABLISH
          BEYOND A REASONABLE DOUBT EVIDENCE
          DEMONSTRATING ALL THE ELEMENTS OF
          RECEIVING STOLEN PROPERTY IN ORDER
          TO SURVIVE DEFENDANT’S MOTION FOR
          ACQUITTAL ON THAT COUNT.

    E.    UPON DETERMINING THAT THE EVIDENCE
          WAS INSUFFICIENT TO WARRANT A
          CONVICTION, DEFENDANT SHOULD BE
          ACQUITTED OF ALL CHARGES.

POINT II. DEFENDANT’S REJECTION OF A PLEA
          OFFER OF A “GUILTY PLEA WITH A
          MAXIMUM TERM OF THREE YEARS WITH 85
          PERCENT PAROLE INELIGIBILITY” IS
          INADEQUATE TO INFORM DEFENDANT OF
          THE CHARGES OFFERED AND CONSTITUTES
          AN   ABDICATION   OF   THE  COURT’S
          ULTIMATE SENTENCING AUTHORITY UNDER
          N.J.S.A.    2C:43-6   and   2C:44-1
          (Partially Raised below)

    A.    A PLEA OFFER OF A SECOND DEGREE
          CHARGE THAT WAS COUCHED AS AN OFFER
          OF   A  THIRD   DEGREE   CHARGE   IS
          CONFUSING AND INADEQUATE TO APPRISE
          THE DEFENDANT OF THE PLEA OFFER THAT
          WAS MADE.

    B.    THE PLEA OFFER IS [A] SUBTERFUGE FOR
          THE   IMPOSITION   OF   [A]   PAROLE
          INELIGIBILITY PERIOD FOR A CHARGE
          THAT IS NEITHER A FIRST DEGREE
          OFFENSE NOR A SECOND DEGREE OFFENSE,

                      3                          A-2501-15T2
             IN VIOLATION    OF   N.J.S.A.   2C:43-
             7.2(a).

        C.   THE    TRIAL    COURT’S    WHOLESALE
             ADOPTION OF THE PROSECUTOR’S PLEA
             OFFER THAT IMPOSES A MANDATORY
             MINIMUM    TERM    CONSTITUTES    AN
             ABDICATION OF THE COURT’S INHERENT
             DISCRETIONARY SENTENCING POWERS AND
             AMOUNTS TO AN ABUSE OF JUDICIAL
             DISCRETION.

        D.   THE PLEA OFFER RENDERED INEFFECTIVE
             ANY ADVICE TO THE DEFENDANT OF THE
             IMMIGRATION CONSEQUENCES OF SUCH A
             PLEA, WHERE DEFENDANT WAS ENTITLED
             TO     A    PRESUMPTION     AGAINST
             INCARCERATION AS A FIRST TIME
             OFFENDER UNDER N.J.S.A. 2C:44-1, AS
             TO MAKE ITS REJECTION INVOLUNTARY.

POINT III.   THE TRIAL COURT ERRED IN FINDING
             [THE]   SECOND   DEGREE   CONSPIRACY
             VERDICT AS A BASIS FOR GRADING COUNT
             3,    EMPLOYING   A    JUVENILE    IN
             COMMISSION OF A CRIME, AS A FIRST-
             DEGREE    OFFENSE,    PURSUANT     TO
             N.J.S.A.    2C:24-9(d),     AND    IN
             IMPOSING     THE     NERA      PAROLE
             DISQUALIFIER, PURSUANT TO N.J.S.A.
             2C:43-7 (Partially Raised below).

        A.   THE COURT'S DETERMINATION THAT THE
             SECOND DEGREE CONSPIRACY VERDICT
             WAS AN UNDERLYING OFFENSE FOR
             GRADATION TO A FIRST DEGREE OFFENSE
             UNDER   N.J.S.A.   2C:24-9(b)   WAS
             ARBITRARY AND NOT SUPPORTED BY THE
             RECORD.

        B.   WHERE THE SECOND DEGREE CONSPIRACY
             VERDICT DID NOT SPECIFY WHETHER
             DEFENDANT INFLICTED SERIOUS BODILY
             INJURY, THE TRIAL COURT ERRED BY
             IMPOSING    THE     NERA    PAROLE

                         4                            A-2501-15T2
                      DISQUALIFIER, PURSUANT TO N.J.S.A.
                      2C:43-7.2(c).

                C.    DEFENDANT’S SENTENCE IS MANIFESTLY
                      EXCESSIVE AND UNDULY PUNITIVE.

           POINT IV. UNDER THE FACTS OF THIS CASE, THE
                     "SHOW-UP" PROCEDURE BY WHICH THE
                     VICTIM IDENTIFIED THE DEFENDANT AS
                     ONE OF HIS ATTACKERS IN THIS CASE
                     WAS IMPERMISSIBLY SUGGESTIVE, AS TO
                     VIOLATE DEFENDANT’S CONSTITUTIONAL
                     RIGHTS TO CONFRONTATION AND DUE
                     PROCESS. (Not raised Below).

     Because the State failed to introduce evidence of the alleged

"juvenile" accomplice's age, we reverse defendant's conviction for

employing a juvenile in the commission of a crime, and we vacate

the eleven-year sentence imposed for that conviction.           We affirm

the robbery conspiracy conviction and the six-year NERA term

imposed for that conviction, as well as the conviction and sentence

on the disorderly persons offense.         We remand this matter to the

trial court for the limited purpose of entering an amended judgment

of conviction (JOC) consistent with this opinion.

                                   I

     For   purposes   of   the   appellate   issues   raised,   the     trial

evidence can be summarized as follows.         According to the victim,

two assailants, one short and one tall, attacked him from behind,

and knocked him down.        The victim testified that the shorter




                                       5                              A-2501-15T2
individual punched and kicked him, and then took his wallet and

cell phone.

       The robbers fled the scene but were detained a few blocks

away, after two police officers, patrolling in their vehicle,

spotted them running across a busy street in the middle of traffic.

The officers stopped the two individuals to warn them that their

irresponsible jaywalking had nearly gotten them killed.                After

getting out of their patrol car, the officers saw one of them,

later identified as defendant, place an object under the patrol

car.    An officer retrieved the object, saw it was a cell phone,

and placed it on the trunk of the car.

       Moments later, the victim, who had run after the robbers,

appeared on the scene and spontaneously exclaimed to the police

that the two people standing near their patrol car had just stolen

his cell phone and wallet.        The victim told the police that he was

certain those two were the robbers.         After asking the victim for

his cell phone number, one of the officers called that number from

his own cell phone, and the cell phone previously placed on the

car    trunk   began   ringing.    Defendant,   the   taller   of   the   two

suspects, was arrested along with the shorter subject.              On being

searched, the shorter individual was found to have several cell

phones in his pockets.



                                      6                              A-2501-15T2
     Based on that evidence, the jury acquitted defendant of

robbery, but convicted him of the other charges previously noted.

                                II

     After reviewing the record, we agree that the State failed

to present evidence to establish that the shorter individual

involved in the robbery was, in fact, a "juvenile."   The pertinent

statute provides that "any person who is at least 18 years of age

who knowingly uses, solicits, directs, hires, employs or conspires

with a person who is in fact 17 years of age or younger to commit

a criminal offense is guilty of a crime."         N.J.S.A. 2C:24-9

(emphasis added).   Thus, the individual's age is an element of the

crime, which the State must prove.     See State v. Lassiter, 348

N.J. Super. 152, 160-161 (App. Div. 2002) (where a participant's

age is an element of an offense, the State must prove that

element); State v. Collins, 262 N.J. Super. 230, 235 (App. Div.

1993) ("[W]ithout proof that the person whom the actor engaged in

the criminal offense [of employing a juvenile in distributing

drugs] is seventeen years old or younger, there is no violation

of this statute.").

     In this case, the State did not introduce the individual's

birth certificate, or any other legally competent evidence from

which the jury could conclude that he was under the age of

eighteen.   As the trial judge and both attorneys acknowledged, a

                                 7                          A-2501-15T2
police officer's testimony referring to that individual as "the

juvenile" was insufficient to meet the State's proof burden.               In

fact, the prosecutor candidly admitted that the lack of proof was

an   oversight,     and    defense   counsel   understandably   refused   the

prosecutor's belated request that he stipulate to the individual's

age.   Because there was no evidence to support a material element

of the charge, the conviction on that count was a clear miscarriage

of justice and must be reversed.            R. 2:10-1; Lassiter, supra, 348

N.J. Super. at 160-61.

                                       III

       To   the   extent    that   defendant's   arguments   concerning   his

rejection of a pre-trial plea offer, or concerning the lack of a

Wade2 hearing, raise claims of ineffective assistance of counsel,

we decline to consider such issues without prejudice to his right

to file a petition for post-conviction relief.           State v. Preciose,

129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411,

419 (App. Div. 1991).

       Defendant's remaining arguments are without sufficient merit

to warrant discussion beyond the following brief comments.                 R.

2:11-3(e)(2).




2
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

                                        8                           A-2501-15T2
      Viewing the State's evidence in light of the applicable legal

standard, State v. Reyes, 50 N.J. 454, 459 (1967), the trial court

properly denied defendant's motion for a directed verdict of

acquittal on the charges of conspiracy to commit robbery and

receiving stolen goods.          Defendant did not move for a new trial,

but even if we consider his arguments, the verdict as to those two

offenses was not against the weight of the evidence.               See R. 2:10-

1.

      Contrary to defendant's identification argument, raised for

the first time on appeal, there was no "show-up" identification

procedure in this case.          In fact, the police did not initiate any

identification procedures at all, because as soon as the victim

arrived, he immediately and spontaneously pointed out defendant

and his companion as the robbers.              Consequently, we find no plain

error.   R. 2:10-2.   Defendant's remaining identification arguments

go to the weight of the evidence. There was sufficient evidence

of defendant's identity to submit the issue to the jury.                   Reyes,

supra, 50 N.J. at 459.

      Contrary to defendant's sentencing argument, NERA applies to

a conviction for "conspiracy to commit" any of the listed crimes,

including robbery.        N.J.S.A. 2C:43-7.2(d), -7.2(d)(9).

      In summary, we reverse the conviction for employing a juvenile

to   commit   a   crime    and   vacate       the   sentence   imposed   on   that

                                          9                               A-2501-15T2
conviction.   We affirm the remaining convictions and sentences

imposed.   We remand for the limited purpose of entering an amended

JOC consistent with this opinion.

    Affirmed in part, reversed in part, and remanded solely to

amend the JOC.   We do not retain jurisdiction.




                                10                          A-2501-15T2
